By Catherine Sas, Q.C.
On Friday, May 31, 2019, while speaking at the Canadian Bar Association’s National Annual Immigration Law Conference, Minister of Immigration and Refugees, Ahmed Hussen announced before the Immigration bar that R.117(9)(d) – collectively viewed by the majority of Canada’s immigration lawyers as the most odious and draconian piece of legislation in all of the Immigration and Refugee Protection Act (IRPA) – would no longer apply to many Canadians sponsoring their spouses or dependent children. He received a standing ovation upon making the announcement.
So what is R.117(9)(d)?
This regulatory provision stipulates that citizens or permanent residents of Canada, who did not disclose a family member when making their own applications, are forever barred from sponsoring them as members of the family class. Please note: forever barred.
There is no consideration of the circumstances as to why they were not disclosed. The Immigration Appeal Division has determined that they don’t have jurisdiction to hear these cases.
There is no recourse for Canadians caught by R.117(9)(d) – other than to make a Humanitarian and Compassionate (H and C) application to try and bring their family members to Canada. Even convicted criminals have regulatory relief, in that IRPA provides for an application for Criminal Rehabilitation to overcome their past criminality. No such provision exists for Canadians to sponsor their previously undisclosed family members.
Why might someone fail to include their family members? There is a myriad of reasons, such as refugee claimants in Canada who fear repercussions to family members outside of Canada and want to protect their identity. Applicants who simply misunderstood the law and their own status in their relationship, for example in many countries there is no such concept as a common-law partner – so if a person was not legally married, they declared themselves single. IRPA provides that if you cohabit for more than one year – you are deemed to be a spouse and must be declared.
Perhaps the most egregious example of the overreach of R.117(9)(d) is where a man immigrates to Canada without knowing that he is the father of a child because the mother never told him. Upon discovering that he is a father, he attempts to sponsor the child without success. The Federal Court has upheld the applicability of R.117(9)(d) in such circumstances.
From its inception the immigration bar has decried the unjust effects of R.117(9)(d). The CBA Immigration Law section mounted a campaign to provide pro-bono legal services for Josephine de Guzman to challenge the validity of the law as being unconstitutional for denying her basic human rights as she was trying to bring her two sons to Canada. Josephine lost.
The Federal Court held that there was an alternative remedy in that Josephine could seek recourse by making an application for permanent residence on H and C grounds. Sounds great in theory, but in practice officers very seldom granted such applications on H and C grounds.
Take the case of my client “Annabel” who came to Canada as a caregiver. She was in love with her childhood sweetheart, and just before coming to Canada to work – and against the wishes of her parents – married her sweetheart “Joseph” in a civil ceremony. She never told her parents about their marriage. She worked here for many years as a caregiver and when she was eligible to apply for permanent residence, she didn’t include her husband out of respect for her parents’ wishes. There was no immigration advantage that Annabel gained by not disclosing her husband.
Upon becoming a PR, she returned to her home country and had a traditional religious wedding ceremony and after returning to Canada, sponsored Joseph. Shortly after her return to Canada she learned that she was pregnant. She was devastated to learn that her application to sponsor her husband was refused pursuant to R.117(9)(d). She gave birth to their son “Joel” in Canada, alone.
Annabel came to see me and we re-applied for Joseph on H and C grounds citing the best interests of their son Joel, warranted favourable processing so that he could be raised by both his mother and father in Canada. This application was refused because the officer determined that there was insufficient proof that Joel would face undue hardship from being separated from his father.
In December of 2015 the Supreme Court of Canada (SCC) rendered the Kanthasamy decision which struck down the hardship test in the consideration of H and C applications, particularly as they applied to the consideration of the best interest of a child.
Shortly after this remarkable SCC decision, I contacted Annabel to encourage her to apply to sponsor Joseph once again. She agreed and we provided considerable evidence about the negative impact to Joel of the ongoing separation from his Father including both medical and psychological evidence. Once again, the case was refused. So much for the applicability of s. 25 as set out in the de Guzman case.
The positive impact and significance of Minister Hussen’s two-year pilot project starting on September 9, 2019 to permit many Canadians to sponsor their spouses and dependent children and be exempted from the applicability of s. 117(9)(d) cannot be overstated. To quote from Minster Hussen: “Newcomers who failed to declare immediate family members as they first came to Canada were barred from sponsoring them. Today we right that wrong.”
Righting this wrong is long overdue.
On behalf of immigration lawyers and consultants, their clients, and Canadian families, thank you Minister Hussen for taking this necessary action.