Last updated on September 13th, 2018

Last Updated on September 13, 2018 by Steven Meurrens

Sometimes, the Immigration and Refugee Protection Act and its regulations can force individuals to make really difficult choices.  I recently encountered this when a client presented issues raising a refugee claim based on sexual orientation, an inadmissible spouse who had been working with a work permit, potential misrepresentation based on a misunderstanding of the law, and really difficult choices.

Because I for obvious reasons cannot get into any details on my own clients, I’m going to present the “inadmissible spouse issue” by summarizing a recent Federal Court case: Abalos v. Canada (Citizenship and Immigration).

In Abalos, the Applicant was a live-in caregiver living in Canada whose application for permanent residence was approved-in-principle.  As there was nothing to suggest that she was medically or criminally inadmissible, the coast was essentially clear for her to become a permanent resident. 

Prior to the Applicant’s application being approved in principle, the Applicant married a refugee claimant in Canada.  The man was from the same country that she was.

Shortly after learning that her application was approved-in-principle, the Applicant sent a letter to Citizenship and Immigration Canada informing them that she had gotten married.

One month later, the Applicant’s husband’s refugee claim was rejected.  The rejection of the refugee claim resulted in the husband being the subject of an unenforceable removal order.

This, unfortunately, triggered the application of s. 113(1)(e) of the Regulations, which provide that:

Permanent residence

113. (1) A foreign national becomes a member of the live-in caregiver class if

(e) they are not, and none of their family members are, the subject of an enforceable removal order or an admissibility hearing under the Act or an appeal or application for judicial review arising from such a hearing;

Accordingly, an immigration officer rejected her application for permanent residence, a decision which the court upheld.

A Note on H&C Submissions

It is worth noting that the applicant did ask the Officer to consider humanitarian & compassionate considerations after the officer informed the applicant of his concerns regarding s. 113(1).  However, as noted in the decision, the applicant did not state what the humanitarian & compassionate grounds should have been.