Troubling Trends in Canada's Immigration System via the Excluded Family Member Regulation: A Survey of Jurisprudence and Lawyers

33 Pages Posted: 20 Sep 2016 Last revised: 4 May 2017

See all articles by Jamie Liew

Jamie Liew

University of Ottawa - Common Law Section

Prasanna Balasundaram

University of Toronto - Faculty of Law

Jennifer Stone

Neighbourhood Legal Services

Date Written: September 15, 2016

Abstract

When a law purports to combat a problem, many of us take for granted that it is doing it effectively, and that it in turn is not harming people. This paper looks at one regulation that, while aiming to protecting the integrity of the immigration system, in fact erodes the humanitarian and compassionate objective of reunifying families and imposes harm on persons within and outside of Canada. Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations imposes a life-time ban on sponsoring a family member if the sponsor, when immigrating to Canada, did not disclose the existence of the family member and therefore have them examined by immigration officials.

This piece investigates the harms imposed by regulation 117(9)(d) by conducting two surveys: a survey of case law and a survey of lawyers. The findings are alarming. First, in looking at the reasons for non-disclosure and non-examination, 90 percent of cases had nothing to do with fraud, but involved tragic and heartbreaking reasons. Second, even in cases where children were involved, the best interests of those children did not lead to greater rates of family reunification. Third, while the courts have pointed to alternative remedies such as humanitarian and compassionate assessments, the surveys reveal that this, at best, only provides relief to half of the 90 percent not engaged in fraudulent activity. Finally, this regulation not only imposes family separation, but it also punishes sponsors who engaged in “misrepresentation” via non-disclosure of a family member, and places a chill on persons seeking alternative remedies to bring their family to Canada. The paper concludes that the problem of fraud in family reunification is overblown, and that regulation 117(9)(d) does more harm than good and should be repealed.

Suggested Citation

Liew, Jamie and Balasundaram, Prasanna and Stone, Jennifer, Troubling Trends in Canada's Immigration System via the Excluded Family Member Regulation: A Survey of Jurisprudence and Lawyers (September 15, 2016). Ottawa Faculty of Law Working Paper No. 2016-36, Available at SSRN: https://ssrn.com/abstract=2839415 or http://dx.doi.org/10.2139/ssrn.2839415

Jamie Liew (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

Prasanna Balasundaram

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

Jennifer Stone

Neighbourhood Legal Services ( email )

333 Queen St. East
Toronto, Ontario M5A 1S9
Canada

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