By Attorney Henry Moyal
NEW POLICY ON UNDECLARED FAMILY MEMBERS
As many of you are aware, the implementation of the new Immigration Act (IRPA) brought sweeping new changes with respect to those individuals who landed in Canada but left behind spouses and children and did not declare them upon entry. The “penalty” for last four years has been that Canada Immigration will not regard those family members as members of the family class and hence cannot be sponsored. So for example, if a person entered Canada a decade ago but had a secret wife which was never declared, then that person cannot thereafter sponsor the wife as he never told immigration about her in the first place.
While many view this law as harsh resulting in separation of family and children, the immigration department argues that misrepresentation cannot go unpunished, honesty must be encouraged and that all family members are required to be medically examined before someone can be landed.
The embassies around the world has repeatedly refused such sponsorships and appeals to the appeal division have mostly been thrown out for lack of jurisdiction.
The above policy has changed in certain circumstances as per a policy announced by Canada Immigration this week.
In general, section 25 of IRPA permits officers to approve applications on humanitarian and compassionate grounds and provides officer with the authority to overcome an applicant who is an excluded family member.
As such, the new policy:
Recognizes that a visa officer must review humanitarian and compassionate reasons which are exceptional and deserving from a reasonable person’s point of view.
Recognizes Canada’s continuing obligations under the convention on the Rights of the Child. As such, the immigration department must consider the best interests of a child.
Recognizes that H&C factors are appropriate where family members were declared but not medically examined and it is clear that the sponsor made best efforts to facilitate the examination.
Recognizes that H&C factors are appropriate if the sponsor presents compelling reasons for not having disclosed the existence of a family member i.e. When the existence of a child was not disclosed because the child was born out of wedlock in a culture that does not condone it.
While there is still lots of work to be done, there seems to some compassion on the side of visa officers that will permit certain excluded family members from being approved. It is certainly a step forward.
Attorney Henry Moyal is a certified and licensed Immigration Lawyer in Toronto, Ontario. The above article is general advice only and not intended to act as a legal document. Send questions in confidence to Balita or to Attorney Moyal by fax, mail or email canada@moyal.com
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