Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations provides that 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. An exception exists where the foreign national was not examined because an immigration officer determined that they did not need to be. Regulation 117(9)(d) typically arises where a person immigrates to Canada, does not disclose that they are either married or have children, and then attempt to sponsor for immigration the people that they did not disclose.
The Charter
If one has a regulation 117(9)(d) refusal and wishes to make a Charter challenge, they should know that the Federal Court of Appeal has already held that the law is constitutional.
In de Guzman v. Canada (Minister of Citizenship and Immigration), [2006] 3 FCR 655, 2005 FCA 436, Ms. de Guzman’s counsel argued that by preventing her from sponsoring her children, and keeping her apart from them, regulation 117(9)(d) deprived her of the Charter’s right to liberty because it restricted her right to make fundamental personal choices, and also that regulation 117(9)(d) deprived her of her Charter right to security of the person by subjecting her to the psychological stress of being separated from close family members.
The Federal Court of Appeal disagreed, and found that s. 7 of the Charter was not engaged because regulation 117(9)(d) was not the cause of Ms. de Guzman’s 12 year separation from her children. Rather, her decision to immigrate to Canada without them, and to lie during her immigration process, was the cause. In sum, Ms. de Guzman had not established that she was the victim of the “serious state-imposed psychological stress” to which s. 7 of the Charter applies.
Furthermore, the court held that the children were free to make H&C applications.
Public Policy
A public policy is in place to facilitate the immigration of certain sponsored nationals excluded under paragraph 117(9)(d) or 125(1)(d) of the Immigration and Refugee Protection Regulations (the Regulations). The measure, originally established in 2019, enables the sponsorship of certian spouses, partners and dependent children currently barred from being sponsored as members of the Family Class because they were not declared and expaned when their sponsor immigrated to Canada.
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