Canada’s New Pilot Project
In 2019, the Canadian government announced a pilot project that would allow the sponsorship of undeclared relatives in specific circumstances. The program has now been extended for an additional two years, until September 9, 2023.
When a person applies to become a Canadian permanent resident, they must declare all family members on their application. This includes their spouse, common-law partner, and any dependent children, even if they are not accompanying the applicant to Canada. Failing to disclose a family member on a permanent resident application will result in the applicant being permanently barred from sponsoring that family member to immigrate to Canada.
There are many reasons an applicant may not disclose all their family members in their application. For example, sometimes applicants will get married after they have submitted their application. The applicant might not update IRCC that they now have a spouse as their permanent residence application is already in process. This would be a mistake, as failing to disclose a spouse, even if the applicant got married after submitting their application, means the applicant will never be able to sponsor their spouse.
Other times, applicants assume they will be able to sponsor their family member to come over once they’ve settled in Canada. Sometimes applicants are unaware that a family member exists or is still alive. Regardless of the reason, if the non-disclosure prevents the immigration authorities from examining the family member, the applicant will be permanently barred from sponsoring an undeclared family member even if the non-disclosure was accidental or that they gained no advantage.
Until recently, the only option to sponsor these family members was to apply for an exception on humanitarian and compassionate grounds. In 2019, the Government of Canada announced a 2-year pilot program to allow certain applicants to sponsor their previously undeclared family members. The new program recognizes Canada’s international obligations to consider the best interests of a child and family reunification principles in its immigration policies.
Why Do Family Members Need to be Declared?
According to paragraphs 117(9)(d) and 125(1)(d) of the Immigration and Refugee Protection Regulations, failing to have a non-accompanying family member examined by the immigration authorities results in a lifetime exclusion in being able to sponsor that family member. Thus, this regulation can result in the permanent separation of family members.
For immigration matters, family members include your spouse or common-law partner, any dependent children, and any dependent children of your dependent children (grandchildren). A dependent child refers to any child under the age of 22 who is unmarried, or a child over the age of 22 but depends on their parents due to mental or physical disability. If an applicant fails to provide information on, or does not disclose the existence of a family member, they are considered ‘undeclared’ for immigration purposes.
Generally, all family members need to examined and are subjected to background screening, which includes undergoing criminal record checks and medical examinations. This is true even if they are not applying for permanent residence or accompanying you to Canada.
The immigration authorities require this information as family members can make the applicant ineligible for permanent residence. Section 42 of the Immigration and Refugee Protection Act states that if one family member is inadmissible to Canada, then every member of that family is also inadmissible. Thus, the immigration authorities need information on all family members to ensure they don’t make the applicant ineligible for permanent residence.
Family members who have criminal or medical issues may prevent the applicant from being approved to immigrate to Canada. This regulation prevents applicants from hiding someone that would make them inadmissible and then later sponsoring the inadmissible family members to Canada, as the family class sponsorship rules are more lenient on admissibility.
What is Canada’s New Pilot Program?
The new pilot program allows the sponsorship of undeclared relatives in specific circumstances. Originally announced in 2019 as a two-year program, it has now been renewed for two more years. The goal of the program is to facilitate family reunification. IRCC is currently limiting eligibility of sponsors to those who immigrated to Canada as a resettled refugee, were granted refugee protection in Canada or were sponsored as a close family member. On top of this, applicants must still meet all eligibility requirements and prove that they are admissible to Canada.
What is the Standard Recourse to Sponsor an Undeclared Family Member?
If you do not qualify under the pilot program, the standard recourse – and only option available – for those wishing to sponsor undeclared family members, is to apply for permanent residence on humanitarian and compassionate (H&C) grounds under Article 25(1) of the Immigration and Refugee Protection Act. Your application will have to explain the reasons for the non-disclosure of the family member.
Section 25 of the Immigration and Refugee Protection Act allows immigration officers to waive nearly any provision of the law if it is justified on humanitarian and compassionate grounds, including Regulation 117(9)(d). H&C applications allow the immigration authorities to grant permanent residence status to foreign nationals who would not otherwise qualify in any class, on the basis of compelling humanitarian and compassionate reasons to provide them with legal status in Canada.
What Are the Risks of Sponsoring an Undeclared Family Member?
Sponsoring previously undeclared family members may come with some risks. The pilot program does not suspend other admissibility provisions. The immigration authorities can still investigate individuals who may be inadmissible due to misrepresentation, if there are grounds to believe they have misrepresented material facts in their applications. Misrepresentation is the intentional changing of facts or information, and can be done by lying, providing wrong information, or intentionally providing false documents.
Misrepresenting yourself to Canadian immigration authorities is a criminal offence, and often results in having your application refused, being barred from re-applying for five years, and being banned from entering Canada for five years. It is possible in serious cases to have your permanent residence or citizenship revoked, and you could be removed from Canada.
Failing to declare family members who would have made the applicant ineligible or inadmissible to Canada when they applied for permanent residence may amount to misrepresentation. Hiring an experienced immigration lawyer to assist you in this process is highly recommended due to the complexity of Canada’s immigration policies and the severe consequences that could be imposed.
If My Application to Sponsor an Undeclared Family Member is Refused, Can I File an Appeal?
If your sponsorship application of a previously undeclared family member is refused, you can appeal to the Federal Court by way of a two-step process: application for leave and judicial review.
The first step is to apply for leave from a judge of the Federal Court. Generally, an application for leave must be made to the Federal Court within 15 days of receiving an immigration decision made in Canada, and 60 days for decisions made outside Canada.
If you are granted leave, you have permission to bring your case before the court and a hearing will be scheduled within 90 days of being granted leave. If you are denied leave, then your case will be dismissed and finally concluded. Appeals to the Federal Court are highly complicated matters and often take up to a year to complete.
You do not have the right to appeal to the Immigration Appeals Division (IAD) as you would if you were applying under the regular family sponsorship categories. The IAD does not have jurisdiction over these appeals because undeclared relatives are not considered to be members of the family class. Therefore, appeals must be made to the Federal Court.
Conclusion:
Sponsoring a previously undeclared family member, either through the pilot program or on H&C grounds is highly complex process, and legal representation is definitely recommended. The Law Office of Matthew Jeffery has years of experience successfully representing sponsorship applicants and can assist you with your case.
At the Law Office of Matthew Jeffery, we also have years of successful experience assisting clients with humanitarian and compassionate applications. These applications are highly technical – they require you to address both the legal issues and why an exemption is warranted. Sponsors may also potentially risk facing misrepresentation proceedings for the non-disclosure of their family members. A permanent resident sponsor who misrepresents a material fact on their application may be found inadmissible and lose their status as a permanent resident. Our office can help.
To learn more about sponsoring undeclared family members, you can read more on our webpage.
If you are interested in sponsoring an undeclared family member, please fill out our FREE ASSESSMENT form to determine whether you qualify, or contact us to see if we can help with your immigration matters.
