The Ultrahazardous Activity of Excluding Family Members in Canada's Immigration System

31 Pages Posted: 2 Apr 2016 Last revised: 4 May 2016

See all articles by Jamie Liew

Jamie Liew

University of Ottawa - Common Law Section

Date Written: March 31, 2016

Abstract

A family, while waiting to be resettled as refugees, welcomed a new baby and for fear of delaying the processing of their application, they did not disclose of the birth of their child. A woman is afraid to disclose her baby born out of rape due to social stigma and the shame of being unwed. A father is afraid to speak to a local interpreter at a Canadian embassy about the existence of a child born out of an affair. A father believed his son was killed in genocide but after he arrived in Canada, the International Committee of the Red Cross located his son.

What do all of these stories have in common? They are tragic stories that start with the non-disclosure and non-examination of a family member in an immigration application and end with permanent family separation.

This paper is about Regulation 117(9)(d), a law whose purpose is to prevent immigration based on misrepresentation and fraud, but actually results in the harsh imposition of a lifetime ban from sponsoring bona fide family members. The paper argues that the regulatory regime is prejudicial, a sticky generalization that allows non-discretionary exclusion of persons from Canada. Further, while the government may feel that this regulation makes it easier to determine who is in the family class, it is not merely suboptimal, but inhumane and unconstitutional.

The paper first provides an overview of Canada’s family reunification scheme, and how family members are excluded from sponsorship by regulation 117(9)(d). The paper then discusses the real consequences of being caught under the provision, how it addresses a non-existent problem, and finally, how it violates the Charter of Rights and Freedoms.

Keywords: immigration; family reunification; refugee; sponsorship

Suggested Citation

Liew, Jamie, The Ultrahazardous Activity of Excluding Family Members in Canada's Immigration System (March 31, 2016). Ottawa Faculty of Law Working Paper No. 2016-16. Available at SSRN: https://ssrn.com/abstract=2757471 or http://dx.doi.org/10.2139/ssrn.2757471

Jamie Liew (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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