Last updated on August 10th, 2018
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 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.
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 is uncertainty in the law as to whether a sponsor’s parents or grand-parents have to be deceased, or simply likely inadmissible to Canada.
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.