Paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations — it’s one of the most heartbreaking rules in Canadian immigration legislation. The rule states that a person is no longer considered to be a member of the family class, and therefore can no longer be sponsored for permanent residence, if he was not examined by a visa officer when his sponsor immigrated to Canada.
Although they can result in the permanent separation of family members, 117(9)(d) exclusions are not uncommon and arise in fairly unspectacular circumstances. The general fact pattern is that an individual applies for permanent residence and fails to disclose the existence of a spouse, common-law partner or child to Citizenship and Immigration Canada (CIC).
A fairly common situation that our office sees is where an individual has an existing permanent residence application that is in its final stages of processing. Prior to receiving his Canadian permanent resident status, the individual gets married but fails to notify CIC that he now has a spouse. Perhaps choosing not to notify Immigration because he has the fear (often unfounded) that it will cause problems or delays for his application, he decides to finalize his own permanent residence application without mentioning his recent marriage and thinks that he will deal with his spouse’s immigration status once his own status is secured. Little does the individual in our example know that by failing to disclose his spouse in his own permanent residence application he has forever disqualified his spouse from being someone that he can sponsor as a family member.
One of the main reasons that regulation 117(9)(d) exists is to prevent applicants from hiding inadmissible family members (e.g. family members who have criminality or medical issues) who would have prevented the applicant’s initial immigration to Canada and then later sponsoring the inadmissible family members under the more lenient family class sponsorship rules.
While its intended function is an important one, regulation 117(9)(d) often results in heartbreaking situations as it operates without any regard for the reason an individual might have for not disclosing a spouse, common-law partner or child. So long as the non-disclosure prevents CIC from examining the family member, it does not matter if the non-disclosure was completely inadvertent or that the individual gained no advantage by it.
For example, regulation 117(9)(d) has even been applied where an individual did not disclose his wife and children on his application because they had become separated in a time of violence and he thought that they had been killed by rebel fighters. As his family members had not been disclosed or examined on his application, they were excluded from the family class and he was unable to sponsor them after he discovered that they were still alive.
So what are you to do if you want to be reunited with your family members despite failing to disclose them on your permanent residents application? The only recourse is to make a Humanitarian and Compassionate Application carefully explaining the circumstances of your case and the reasons for the non-disclosure. A visa officer will then use his or her discretion in deciding whether your case warrants an exemption from the strict application of Regulation 117(9)(d). These types of applications can be quite technical as they must carefully address the legal issues at hand and must contain sufficient documentation to persuade the officer that an exemption is warranted. Furthermore, sponsors may want to consult with legal counsel to evaluate the risk that they could potentially open themselves up to misrepresentation proceedings for the previous non-disclosure of their family members.
McCuaig Desrochers LLP, a general practice law firm with Edmonton’s largest group of immigration lawyers (www.mccuaig.com). This article first appeared in the July 2015 edition of the Millwoods Mosaic – the Multicultural Voice of Southeast Edmonton and is intended to provide general information only and should not to be relied on as legal advice or opinion. We invite you to contact one of the members of our experienced immigration group for assistance.