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

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of fraud in family reunification is overblown, and that regulation 117(9)(d) does more harm than good and should be repealed.