FAMILIES NEVER TO BE UNITED: EXCLUDED FAMILY
Since June 2002, the immigration regulations state1
that a person is not a family member if they were not examined by a
when the person trying to sponsor them immigrated to Canada.2
Since they are not a family
cannot be sponsored, leaving some families unable to reunite.
· Family members are not family members
A family member that was not examined is not a family member, in the
eyes of the immigration rules, even though they are the sponsor’s
spouse, common law partner or child.
· No access to Immigration Appeal Division
Because the person being sponsored is “not a family member”, the
Family Class sponsorship cannot be appealed to the Immigration Appeal
where humanitarian and compassionate grounds could be considered.
· No hope ever
. The ban on
sponsorship of an excluded family member is perpetual. The
failure to have a family member examined is a mistake that can never be
corrected or forgiven.
FAMILIES BELONG TOGETHER
|Leila [not her real name] came to Canada fleeing
persecution based on her gender. Her refugee claim was
She had left her two children with her mother (one was 12 years old,
other 6). However, in the applications she submitted to the
government she did not mention the older child, because he was born out
wedlock and she was ashamed. Leila’s lawyer knew about the first
but did not tell her to include him in her forms.
Leila’s mother is now sick and doesn’t know how much longer she can
take care of the child. In addition, Leila’s child is stateless because
his father was not a citizen of Leila’s country. The father’s
name had been placed on the birth certificate when the child was
registered at birth to cover up
the fact that they were not married.
Despite these compelling factors in favour of reuniting Leila with her
child, Leila cannot sponsor her child due to regulations that
exclude him from being considered a family member.
The excluded family member rule flouts our legal commitments.
· It contradicts the purpose of the law: a
stated objective of the Immigration and Refugee Protection Act
is “to see that families are reunited in Canada.”3
· It violates our international human rights
obligations: to deal “in a positive, humane and expeditious manner”
with applications by
children or their parents to enter Canada for the purpose of family
and to protect the family
as “the natural and fundamental group unit of society.”5
AN ERROR THAT CAN NEVER BE CORRECTED OR FORGIVEN
|Jean-Edouard Jean-Jacques immigrated to Canada
from Haiti in 1998. In 2000, he learned that he had a daughter,
Wedgine, born in 1989 to a woman with whom he had a short relationship
and who had not told him that she was giving birth to his child. Mr.
Jean-Jacques, whose paternity was confirmed by a DNA test, acknowledged
the child by way of an “acte de reconnaissance” in July 2000.
After her mother died, Mr. Jean-Jacques applied to sponsor Wedgine in
2002. In December 2003, the sponsorship was refused because
Wedgine is not a member of the family class according to the
The law punishes Wedgine for her father’s failure to report
her existence before he even knew she existed.
The purpose of the excluded family member rule is to deter
misrepresentation. But while the government has a clear interest
in discouraging people from concealing the existence of family members,
its rule is:
– it punishes not only those who have failed to declare a
family member, but also innocent family members, including children.
– it punishes alike those who deliberately tried to mislead
and those who made an innocent mistake or who had compelling reasons
acting as they did.
– it imposes a life-long punishment, since an excluded
family member remains eternally an excluded family member. In
contrast, if a person is guilty of misrepresentation, the Act makes
them inadmissible for
two years only7
and even people convicted
a crime can eventually be rehabilitated.8
According to Canadian immigration law, therefore, the guilty can be
but innocent family members are condemned without appeal to a life
|An unmarried man, Ricardo [not his real name]
applied to Canada as a skilled worker and was issued a visa. One
week before leaving for Canada, he married his girlfriend of six years,
with the intention of sponsoring her once he got to Canada and had
established himself. He did not declare his marriage to the visa
office before departing, because he was very busy with final
arrangements and because he did not realize that it was required and
that there would be serious consequences for not declaring it. On
arrival at the airport in Canada, he was asked no questions about
his marital status, and, again, he did not declare that he was married.
Once settled in Canada, Ricardo applied to sponsor his wife.
Citizenship and Immigration Canada then learned that he had married
before coming to Canada
but after investigation they decided not to pursue him for
misrepresentation (presumably because it was clear that he had had no
intention to mislead). However, Ricardo will never be able
to sponsor his wife.
Repeal the excluded family member rule (Immigration and Refugee
1. Immigration and Refugee Protection
2. There is an exception (at 117(10)) if the
visa officer had agreed that the family member did not need to be
(this exception was added in July 2004 and could apply in particular to
refugees who reported a family member but they couldn’t be examined,
for example, because
their whereabouts was unknown).
3. Immigration and Refugee Protection Act
paragraph 3 (1)(d).
4. Convention on the Rights of the Child
5. International Covenant on Civil and
, article 23(1) and International Covenant on
Economic, Social and Cultural Rights
, article 10(1).
6. Jean-Jacques v. Canada (Minister of
Citizenship and Immigration)
 F.C.J. No. 131 (QL) (Fed. T.D.)
7. Immigration and Refugee Protection Act
8. Immigration and Refugee Protection Act