One of the more frustrating aspects for prospective immigrants is Citizenship and Immigration Canada’s (“CIC”) general requirement that they have their non-accompanying dependants (spouses and children) undergo medical and criminal examination. The task can be taunting for those who do not have full custody of their non-accompanying children. However, CIC’s requirement is understandable in light of Canadian immigration legislation..
Section 42(1)(a) of the Immigration and Refugee Protection Act (“IRPA”) states:
42. (1) A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or
In other words, there are certain circumstances in which CIC must refuse an individual’s permanent residence application if their non-accompanying dependants are inadmissible. Section 23 of the Immigration and Refugee Protection Regulations (“IRPR”) states that these circumstances are:
23. For the purposes of paragraph 42(1)(a) of the Act, the prescribed circumstances in which the foreign national is inadmissible on grounds of an inadmissible non-accompanying family member are that
(a) the foreign national is a temporary resident or has made an application for temporary resident status, an application for a permanent resident visa or an application to remain in Canada as a temporary or permanent resident; and
(b) the non-accompanying family member is
(i) the spouse of the foreign national, except where the relationship between the spouse and foreign national has broken down in law or in fact,
(ii) the common-law partner of the foreign national,
(iii) a dependent child of the foreign national and either the foreign national or an accompanying family member of the foreign national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law, or
(iv) a dependent child of a dependent child of the foreign national and the foreign national, a dependent child of the foreign national or any other accompanying family member of the foreign national has custody of that child or is empowered to act on behalf of that child by virtue of a court order or written agreement or by operation of law.
IRPR r. 23 is clear that non-accompanying family members of prospective immigrants must be examined unless if
- they are the principal applicant’s spouse, and the relationship has broken down in law or in fact; and
- they are the principal applicant’s child, unless the principal applicant does not have custody of the child or is not empowered to act on behalf of the child by virtue of a court order or by written agreement or by operation of law.
In recognition of the fact that there will be circumstances where the above does not apply, but where a principal applicant genuinely cannot compel a non-accompanying family member to be examined, CIC’s Inland Processing Manual (the “Manual”) states:
The applicant should be advised that they will lose this right should their family members not be examined.
If family members are genuinely unavailable or unwilling to be examined, the consequences of not having them examined should be clearly explained to the applicant and noted on the record. Officers may wish to have applicants sign a statutory declaration indicating that they understand the consequences of not having a family member examined.
Officers should be open to the possibility that a client may not be able to make a family member available for examination. If an applicant has done everything in their power to have their family member examined but has failed to do so, and the officer is satisfied that the applicant is aware of the consequences of this (i.e., no future sponsorship possible), then a refusal of their application for non-compliance would not be appropriate.
Officers must decide on a case-by-case basis, using common sense and good judgment, whether to proceed with an application even if all family members have not been examined. Some scenarios where this may likely occur include where an ex-spouse refuses to allow a child to be examined or an overage dependent refuses to be examined. Proceeding in this way should be a last resort and only after the officer is convinced that the applicant cannot make the family member available for examination. The applicant themselves cannot choose not to have a family member examined.
CIC handles exemption requests based on the Manual on a case by case basis. In some circumstances, it has found that an-wife hiding the passport of a joint-custody son was not a sufficient reason to not have the child medically examined as the applicant could have gone to court to order the ex-wife to return the passport. However, in countries where divorce is not legal, but it is clear from the facts that a relationship has broken down, then CIC will be required to consider the de-facto circumstances.
In light of the above, it is clear that applicants where de-facto custody of non-accompanying dependants is questionable need to do their utmost to have their non-accompanying dependants examined, as CIC will only agree to exemptions as a last resort.