Last updated on January 6th, 2020
Last Updated on January 6, 2020 by Steven Meurrens
Canadian immigration legislation provides that a Canadian citizen or permanent resident may sponsor their spouse, common-law partner, child, parents or grand-parents to immigrate to Canada. It also provides that in certain circumstances a Canadian may sponsor another relative.
Section 117(1)(h) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:
A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father
(i) who is a Canadian citizen, Indian or permanent resident, or
(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor.
The following are key things to know about sponsoring relatives other than spouses, common-law partners, children, parents or grand-parents.
1. The Canadian sponsor must not have a spouse, common-law partner, child, parent or grand-parent, niece, nephew, aunt or auncle or cousin that is either a Canadian citizen or one that they can sponsor.
Indeed, when assessing such applications, Immigration, Refugees and Citizenship Canada (“IRCC”) will often ask applicants to provide detailed family trees listing all family members and to provide evidence as to whether a person’s parents and grandparents are deceased.
The IRCC website provides the following examples:
Example 1: Eligible to sponsor an aunt
Veronica doesn’t have a spouse or a common-law partner. She has no children, and lives in Canada as a permanent resident. Her parents and grandparents have all passed away and she doesn’t have any relatives in Canada who are Canadian citizens, permanent residents or registered Indians. Veronica would like to sponsor her aunt Betty, who she is very close with. Her aunt Betty is married and has a daughter.
Veronica meets the requirements to sponsor her aunt because she doesn’t have:
- a close living relative she could sponsor instead (such as a spouse, partner, child, orphaned sibling, parent or grandparent) and
- any other relative such as an aunt who is a citizen, permanent resident or registered Indian of Canada.
Example 2: Eligible to sponsor a cousin
Sam is an only child. His parents and grandparents have passed away. He was raised in the United States by his only cousin. He immigrated to Canada as a permanent resident. He’s single (doesn’t have a spouse or a common-law partner). Sam doesn’t have any relatives in Canada who are Canadian citizens, permanent residents or registered Indians. Sam wants to sponsor his American cousin. His cousin is single (doesn’t have a spouse or a common-law partner).
Sam meets the requirements to sponsor his cousin to come to Canada because he doesn’t have:
- a close living relative he could sponsor instead (such as a spouse, partner, child, sibling, parent or grandparent) and
- any other relative who is a citizen, permanent resident or registered Indian of Canada.
2. It does not matter if the Canadian sponsor is not close to, or estranged from, his or her parents.
In Bousaleh v. Canada (Citizenship and Immigration), Justice Fothergill stated that although the results may seem unfair, it does not matter if a potential Canadian sponsor is estranged from his or her parents. The fact that they can legally be sponsored means that the Canadian cannot sponsor another relative instead.
3. There was previously uncertainty in the law as to whether a sponsor’s parents or grand-parents have to be deceased, or simply likely inadmissible to Canada, however, it is now clear that the jurisprudence requires that they be deceased.
Traditionally, most people have interpreted Canadian immigration law as requiring that a Canadian may sponsor a relative only if they do not have any living spouses, children, or parents who they can sponsor. However, the Federal Court in Sendwa v. Canada (Citizenship and Immigration) ruled that this is too restrictive. The Federal Court found that the stated that the purpose and intent of paragraph 117(1)(h) of the IRPR is “to favour persons who do not have relations in Canada and have no possibility to sponsor any relations under other provisions.” The Court went on to state:
In the present case, the Immigration Appeal Division held that the Applicant’s application was rejected simply because her parents were alive. The Immigration Appeal Division did not consider whether the Applicant would (even) be eligible (or in position) to sponsor her parents. As a result, the IAD’s decision is unreasonable.
4. The Federal Court of Appeal has determined that it is not necessary to consider whether a sponsor’s parents or grand-parents application would have a reasonable likelihood of success.
In Bousaleh v. Canada, Justice Fothergill certified the following question of general importance:
Does determination of a person’s eligibility to sponsor a relative under s 117(1)(h) of the Immigration and Refugee Protection Regulations, SOR/2002-227 require consideration of whether an application to sponsor a person enumerated in s 117(1)(h) has a reasonable prospect of success?
In Bousaleh v. Canada (Citizenship and Immigration), 2018 FCA 14 the Federal Court of Appeal answered in the negative.
The Court noted that:
I also note that it is apparent that had Mr. Bousaleh’s mother been declared inadmissible by an officer reviewing her application for permanent residence, the IAD would have had jurisdiction to waive the requirement with respect to her health condition on appeal for humanitarian and compassionate considerations (section 65 of the IRPA).
In the same manner, it appears that the visa officer in the present matter would have considered Mr. Bousaleh’s brother’s request under section 25 of the IRPA had it been established that the mother was indeed inadmissible. From my review of the scant medical evidence on file, it is not evident that such a conclusion could have been reached. In any event, the right to seek an exemption from the Minister pursuant to section 25 of the IRPA is not an empty or unjust remedy, especially considering the latest teachings of the Supreme Court of Canada in Kanthasamy.
5. Relatives have to be linked by blood, not marriage.
The IRCC website states:
Example 3: Not eligible to sponsor an aunt by marriage
Aba is a Canadian citizen. The only family she had in Canada was her mother, who passed away. Aba has always been close to her mother’s only brother and his wife. Aba’s uncle recently passed away, and Aba would like to sponsor his wife (her aunt by marriage) to come to Canada. Aba does not meet the requirements to sponsor her aunt, because they’re not related by blood.