Troubling Trends in Canada's Immigration System Via the Excluded Family Member Regulation: A Survey of Jurisprudence and Lawyers

摘要

When a law purports to combat a problem, many of us take for granted that it is effective in doing so, and that it is not harming people. This article looks at one regulation that, while aiming to protect the integrity of the immigration system, in fact erodes the humanitarian and compassionate objective of reunifying families. Regulation 117(9)(d) of the Immigration and Refugee Protection Regulations imposes a life-time ban on sponsoring a family member if the sponsor, when immigrating to Canada, did not disclose the existence of the family member and therefore have them examined by immigration officials. This article presents four main findings of two surveys: a survey of case law and of lawyers. First, in looking at the reasons for non-disclosure and non-examination, 90% of cases appear to have nothing to do with fraud, but involved tragic and heartbreaking circumstances. Second, in cases where children were involved, the best interests of those children did not lead to greater rates of family reunification. Third, while the courts have pointed to alternative remedies such as humanitarian and compassionate assessments, at best, these only provide relief in half of the cases. Finally, this regulation not only imposes family separation, but it also punishes sponsors who engaged in “misrepresentation” via non-disclosure of a family member, placing a chill on persons seeking alternative remedies to bring their families to Canada. The article concludes that the problem of fraud in family reunification is overblown, and that regulation 117(9)(d) does more harm than good and should be repealed.