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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