Failing to Disclose Family Members – R117(9)(d) Exclusion and Misrepresentation

Failing to Disclose Family Members – R117(9)(d) Exclusion and Misrepresentation

When applying for immigration to Canada, foreign nationals must declare and have all their family members (including spouses or common-law partners and children) examined, even if those family members are not accompanying the principal applicant.

Failure to have a non-accompanying family member examined can result in a lifetime exclusion from sponsoring that person under the family class or the spouse or common-law partner in Canada (SCLPC) class, as outlined in paragraphs R117(9)(d) or R125(1)(d) of the Immigration and Refugee Protection Regulations (IRPR).

These exclusions are common in certain circumstances, but there are possibilities to obtain exemptions from this rule.


Understanding R117(9)(d) Exclusion

Paragraph R117(9)(d) of the IRPR states that a foreign national is not considered a family member if, during a previous permanent residency (PR) application, they were a non-accompanying family member of the sponsor and were not examined by a visa officer. In simpler terms, if a sponsor failed to declare their family member during a prior application, that family member may face exclusion.

Common Scenarios for Exclusion

Here are some scenarios that can lead to excluded family members:

  1. Late Additions: A sponsor doesn’t declare a new baby born after their interview with the visa officer but before departure for Canada. The baby becomes an excluded family member.
  2. Last-Minute Marriage: A sponsor marries their fiancé just days before immigrating to Canada, failing to declare the new spouse. The spouse becomes excluded.
  3. Undisclosed Children: A sponsor learns about a child after becoming a permanent resident. If the child wasn’t declared during the application, they become excluded.
  4. Pressure to Conceal: A sponsor is pressured not to mention a child born out of wedlock. The child becomes excluded.
  5. Same-Sex Partners: A sponsor applies for family reunification as a same-sex couple. If they don’t declare their partner’s cohabitation for a year, the partner becomes excluded.

Solutions and Relief

  • Humanitarian and Compassionate (H&C) Considerations: IRCC recognizes cases where the excluded family member rule shouldn’t apply. H&C considerations under section 25 of the Immigration and Refugee Protection Act can be used to overcome exclusion. Examples include situations where family members were believed to be deceased or faced extreme hardship due to cultural norms.
  • One Year Window Applications: Refugees (Protected Persons) can apply under the One Year Window provision. However, Regulation 141 still excludes family members who weren’t declared.
  • Pilot Program for Relief: Effective September 10, 2023, a temporary public policy facilitates the immigration of certain sponsored foreign nationals excluded under R117(9)(d) or R125(1)(d). This program has been extended for an additional 3 years. Applications pending on its effective date will be processed according to its provisions.

Spousal Sponsorship

Pilot program to exempt permanent residence applicants in the spouse and family class

To address concerns about the impact of exclusion provisions on families, the Canadian government introduced a 2-year pilot project via a temporary public policy. The pilot was extended further from inital trieal period from September 10, 2023, to September 10, 2026.

  • Eligibility:
    • The foreign national has applied as either of the following:
      • a spouse or a common-law partner under the SCLPC class
      • a spouse, a common-law partner, conjugal partner or a dependent child under the family class
    • The sponsor was granted permanent residence status in Canada as any of the following:
      • a resettled refugee (such as a Convention refugee or a person in similar circumstances, or an applicant under the country of asylum class)
      • a protected person
      • a sponsored spouse, a common-law partner, a conjugal partner or a dependent child under the family class
      • a sponsored spouse or a common-law partner under the SCLPC class
    • The foreign national, if declared and examined at the time their sponsor immigrated to Canada, would not have made their sponsor ineligible in the class under which the sponsor applied and was granted permanent residence.
  • Cases where the policy does not apply:
    • Other Permanent Residence Categories:
      • The public policy does not apply if the sponsor was granted permanent residence status under immigration categories not specified by the policy. These categories include:
        • Any of the economic classes.
        • Other members of the family class (such as parents, grandparents, dependent children, orphaned relatives, and other relatives).
        • The permit holder class.
        • Permanent residence obtained from within Canada based on humanitarian and compassionate (H&C) grounds.
    • Sponsor Ineligibility:
      • The public policy does not apply if the foreign national, when declared and examined at the time their sponsor immigrated to Canada, would have rendered their sponsor ineligible in the class under which the sponsor applied. Examples include situations where the sponsor:
        • Immigrated as a spouse but was already married to the current applicant (in a bigamous or polygamous relationship) when becoming a permanent resident.
        • Immigrated as a dependent child of a principal applicant (including applicants in refugee categories) or as a dependent child under the family class but failed to declare their spouse or common-law partner, thus affecting their dependent child status.
        • Would have needed to meet financial requirements under the family class or the SCLPC class if the dependent children of a sponsored dependent child were disclosed.
        • Came to Canada through a program that required them to have no dependents.

Conclusion

The pilot program signifies Canada’s commitment to fostering a welcoming and inclusive environment for families. Its success holds the potential for an extension beyond the initial two-year period. For those seeking to reunite with their loved ones, this program offers a beacon of hope. Consulting with experienced immigration consultants or lawyers familiar with the pilot program can ensure a smooth and efficient process.

Have you or someone you know been impacted by the R117(9)(d) or R125(1)(d) exclusions? Please contact MM Immigration law to speak with an expert lawyer.

Disclaimer: This guide provides general information and should not be considered legal advice. Always consult official government sources and seek professional assistance for personalized guidance.

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Disclaimer: This article is for general information purposes only and it is not intended as legal advice. The information is not a substitute for professional legal advice, and it may not be appropriate for you. Do not rely solely on this blog. Always do your own research and due diligence. Immigration laws and regulations can change over time. It is important to consult with a qualified immigration lawyer if you are unsure how to proceed.

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