Lifetime sponsorship ban under Section 117(9)(d) exemption now in effect for certain family members
A very welcomed change by the Government of Canada
What is Section 117(9)(d)?
Regulation 117(9)(d) was introduced in 2002 to combat fraud and misrepresentation based on the presumption that non-disclosure is motivated by the deliberate intention to deceive. As a means of deterring “fraudulent abuse”, it imposes a permanent ban on Family Class sponsorships of family members who were not examined at the time of the sponsor’s immigration to Canada. As the only regulation in the immigration regime that imposes a lifetime ban against family reunification, R.117(9)(d) is unnecessary and excessive in light of the other proven means available to protect the system’s integrity, such as the misrepresentation provisions.
Section 117(9)(d) of the Immigration and Refugee Protection Regulations imposes a lifelong sponsorship ban on family members who were not examined at the time of the sponsor’s immigration to Canada. Although R.117(9)(d) affects all categories of immigrants, it has a disproportionately negative effect on refugees and vulnerable migrants who fail to disclose a family member. Their reasons for doing so include fear of endangering the family member, gender-based oppression, lack of information, and unexpected life events. The regime set out in R.117(9)(d) is overbroad, excessive, and inflicts devastating harm on vulnerable people, especially children.
Who does the lifetime ban impact?
R.117(9)(d) imposes a lifetime ban on family reunification without considering the underlying reasons for non- disclosure. It acts as a strict liability regime because it applies whether or not the person was at fault or negligent. This stands in stark contrast to the immigration scheme’s primary objective of “see[ing] that families are reunited in Canada.”
Of particular concern is the fact that the ban also applies to children. In most cases, children affected had no input as to whether or not they were disclosed on the application. They are in no way at fault, and yet they suffer the consequences of being rendered inadmissible. In fact, children suffer the worst harms as a result of the Regulation: they are separated from family members at an age when being with family is crucial, and in many cases they are left behind in situations where they are exposed to abuse and neglect.
This is contrary to Canada’s obligations under the Convention on the Rights of the Child. Article 3 of that Convention requires that children’s best interests be considered in all matters affecting them, while Article 10 guarantees the right to family reunification and to maintain direct contact with both parents on a regular basis.
New public policy introduced by the Canadian Government on September 9, 2019
A new two-year pilot began on September 9, 2019 that will allow sponsorship applications for certain family members who would normally be banned from obtaining permanent residence under Canada’s Immigration and Refugee Protection Regulations.
The pilot concerns non-accompanying family members who were not examined and in some cases were not even declared when a foreign national applied for Canadian permanent residence, which normally results in a lifetime ban from sponsoring the family members in question under paragraphs 117(9)(d) and 125(1)(d) of the regulations.
Who is eligible to apply?
The pilot will facilitate immigration to Canada for the “most vulnerable populations” affected by the ban who meet the following conditions:
- the foreign national has applied as a spouse or as a common-law partner in the Spouse or Common-Law Partner in Canada Class or as a spouse, common-law partner or dependent child under the Family Class.
- the foreign national has a sponsor who:
- applied for and was granted permanent residence status as a Convention refugee or a person in similar circumstances; or
- was granted permanent residence after being deemed a protected person; or
- was determined to be a Family Class member and was granted permanent residence as a sponsored spouse, common-law partner, conjugal partner, or dependent child; or
- was determined to be a member of the Spouse or Common-Law Partner in Canada Class and was granted permanent residence as a sponsored spouse or common-law partner.
- the foreign national would not have made their sponsor ineligible in the class that the sponsor applied for had they been declared and examined at the time their sponsor immigrated to Canada.
Which provisions does this law exemption may be granted?
- Paragraph 117(9)(d) – A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
- Paragraph 125(1)(d) of the Regulations – A foreign national shall not be considered a member of the spouse or common-law partner in Canada class by virtue of their relationship to a sponsor if the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.
All admissibility provisions and other eligibility requirements not exempted above are applicable.
Fees: Where applicable, the standard fees for processing applications in the Family Class or the Spouse or Common-law Partner in Canada Class must be paid.
Dependent children have to meet the definition of a dependent child, as set out in section 2 of the Regulations, at the time their application for permanent residence is received by the Department.
For the applicants whose sponsor resides in the province of Quebec, the requirement to have a sponsor who has given a sponsorship undertaking to the Government of Quebec continues to apply.
Start Date and End Date: This public policy takes effect on September 9, 2019 and ends on September 9, 2021. The public policy applies to the following: applications that were pending on May 31, 2019; applications received between May 31, 2019 and September 9, 2021; and, applications that were pending reconsideration between May 31, 2019 and September 9, 2021.
As with all public policies, this public policy may be cancelled at any time.
Contact us or book an initial consultation if you would like to assess your eligibility under the new public policy