Immigration laws and regulations are very complex and unfortunately without proper guidance and consultation you may find yourself in an unexpected position with very sad consequences. One example is the case of “excluded family members” who become inadmissible to Canada because they were not declared at the right time and subsequently cannot be sponsored to join the rest of their family in Canada.
Obligation to disclose family members:
When you apply for immigration to visit Canada, and prior to becoming a permanent resident, you must declare all your family members, whether they are accompanying you or not. All family members must be examined, unless an officer decides otherwise. This includes medical examinations and criminal or security checks.
The intent of this rule to encourage honesty and prevent applicants from circumventing immigration rules. Specifically, the rule exists to prevent applicants from later being able to sponsor otherwise inadmissible family members under the generous family class sponsorship rules when these family members would have prevented the applicant’s initial immigration to Canada for admissibility reasons.
If you do not report all your family members in your application, you are reportable under section 44(a) of the Immigration and Refugee Protection Act (IRPA) for misrepresentation. In addition, family members who are not declared and are not examined are excluded from the family class and you cannot later sponsor them to join you in Canada. Under section 117(9)(d) of IRPA, these excluded family members are inadmissible and there will be a lifelong sponsorship ban for such family members that were not examined at the time you immigrated to Canada.
Examples of “excluded family members”:
There are various situations in which applicants may become “excluded”. Some scenarios include:
- A man applies for immigration to Canada. After he is approved, he marries his fiancé a few days before coming to Canada to land. He does not declare her and believes he can sponsor her when he lands in Canada. His wife will become an excluded family member because she was not examined before he became a permanent resident of Canada.
- A woman who immigrates to Canada is pressured by her family to not mention a child that she previously had out of wedlock. As the child is not declared and not examined, she cannot later sponsor her child and the child will be an excluded family member.
- A man who immigrates to Canada does not know that a previous partner has given birth to his child. Because the child is not declared and not examined, he cannot later sponsor his child and the child will be an excluded family member.
- A woman comes to Canada, applies for refugee status and subsequently receives permanent residence. Although she reports that she is married in her refugee claim she does not include her husband on the form for permanent residence as she does not have sufficient funds to cover the government application fees for him. When she receives permanent residence, she cannot apply to sponsor her husband because she did not declare him and he was not examined.
Therefore, you must declare all family members at the time of application and must inform the immigration authorities if your situation changes from the time of application up to the time that you land in Canada (e.g. you become married, divorced, or have a child). If you declare family members who are non-accompanying, the officer will determine if they need to be examined.
If you declare family members but for some reason the officer determines that they do not need to be examined (e.g. because of an administrative decision, for policy reasons or because of an administrative error), then the family member is not excluded from membership in the family class and can later sponsored.
Often times, when you declare a non-accompanying family member who cannot be examined, particularly dependent children that live with the other parent, the immigration officer will ask you to sign a document declaring that you understand that they are not being examined and that you will not be able to sponsor them later. In such cases it is very important that you seek legal advice to understand the long-term consequence of signing any such document.
What can you do?
If you have an excluded family member, it is very difficult to overcome the lifetime ban on sponsorship of your loved one. Depending on your particular situation it may be possible to make a request for the immigration officer to consider the humanitarian and compassionate considerations in overcoming the inadmissibility of the excluded family member. The chance of success in such an application depends entirely on the specific facts of your case. You will need to convince the officer that your case is exceptional and deserving for the rule to be waived. These cases require a great deal of evidence and you will need to work with your lawyer to prepare and present documents and explanations with regards to the circumstances surrounding your application, the efforts you have made to declare and have family members examined, and the best interests of any child involved. If you are successful you will be able to sponsor the family member to join you in Canada.
It is interesting to note that this rule has a disproportionately negative effect on applicants who are less well informed and thus fail to disclose a family member. This makes it all the more important for them to seek appropriate legal advice when preparing and submitting their application to avoid the risk of a sad ending where excluded family members are separated without any hope of reunion.
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Zeynab Ziaie is a graduate of the Faculty of Law at the University of Toronto and a lawyer licensed to practice in Ontario and New York. Her legal practice focuses on immigration and business law. She often works with clients to find suitable solutions in complex immigration and citizenship cases and represents clients at all levels of court.