Tag: Familly

Immigrating to Canada or seeking to enter Canada as a temporary resident or pursuant to a temporary resident visa is often a family affair. However, the provisions governing inadmissibility codified in the Immigration and Refugee Protection Act (“IRPA”) can result in family members being inadmissible to Canada based on one of their family members being inadmissible to Canada on one or more of the grounds of inadmissibility listed in sections 34 to 41 of the Act. Exceptions to these inadmissibility provisions exist, but it will generally not be possible for a foreign national deemed inadmissible on the basis of an inadmissible family member to obtain permanent residency in Canada. The present article discusses these matters in greater detail.

Inadmissibility based on an admissible member is governed by sections 42(1) and 42(2) of the IRPA. These provisions only apply to “foreign nationals,” and therefore not to Canadian citizens, permanent residents, or protected persons. Note that a protected person refers to a person to whom refugee protection has been conferred under IRPA, s. 97 or 114(a).

Section 42(1) provides for two forms of inadmissibility based on an inadmissible family member. These two forms of inadmissibility are governed by paragraphs 42(1)(a) and (b) of the IRPA, respectively.

IRPA, Paragraph 42(1)(a)

First, paragraph 42(1)(a) renders inadmissible to Canada a foreign national – other than a protected person – if their accompanying family member or non-accompanying family member is inadmissible. In other words, a foreign national who is otherwise admissible to Canada is inadmissible to Canada if their accompanying or non-accompanying family member is inadmissible one or more grounds listed in sections 34-41 of the IRPA.

Accompanying Family Member

An accompanying family member is a family member who is physically present and accompanying the foreign national either at the time of seeking to enter Canada or who was allowed to enter Canada with the foreign national. The inadmissibility of the foreign national’s accompanying family member can be determined at the time of seeking entry into Canada in circumstances when one or more grounds of inadmissibility can be established then. The inadmissibility of the foreign national’s accompanying family member can also be established after their entry into Canada. For example, the accompanying family member may have been admissible at the time of their entry into Canada, but subsequently became inadmissible due to having engaged in conduct or otherwise falling into one or more categories of inadmissibility listed in s. 34-41 of the IRPA and having had a declaration of inadmissibility made by the Immigration Division or the Minister of Public Safety and Emergency Preparedness.

Non-accompanying Family Member

A non-accompanying family member is a family member who is not physically present with the foreign national at the time of seeking to enter Canada and/or who did not accompany them into Canada upon been allowed to enter. Non-accompanying family members are often the family members of foreign nationals who have already entered Canada and who subsequently seek to enter Canada, either alone or with other family members other than the family member who has already entered Canada. As a result, a foreign national who already in Canada is rendered inadmissible to Canada if their non-accompanying family member is inadmissible to Canada.

IRPA, Paragraph 42(1)(b)

Second, paragraph 42(1)(b) renders inadmissible to Canada a foreign national – other than a protected person – if they are the accompanying family member or non-accompanying family member of a foreign national who is inadmissible to Canada. In other words, a foreign national who is otherwise admissible to Canada is inadmissible to Canada if they are the accompanying or non-accompanying family member of a foreign national who is inadmissible one or more grounds listed in sections 34-41 of the IRPA. Note that the definition of “foreign national,” “accompanying family member” and “non-accompanying family member” are the same as those discussed under IRPA , Paragraph 42(1)(a), above.

Exceptions to IRPA, Paragraphs 42(1)(a) and (b): temporary resident

Section 42(2) of the IRPA provides for limited exceptions to the application of paragraphs 42(1)(a) and (b). These exceptions only apply to a foreign national who is either a temporary resident, has made an application for temporary resident status or an application to remain in Canada as a temporary resident.

The temporary resident exception refers to a foreign national who has already been granted a temporary resident visa and is present in Canada. The exception pertaining to a foreign national who has made an application for temporary resident status refers to a foreign national who has not yet entered Canada as a temporary resident but seeks to do so. The phrase “who has made an application” indicates that the exception applies to this category of foreign national from the moment the application has been filed and even if it has yet to be decided. The exception for a foreign national who has made an application to remain in Canada is confined to foreign nationals who already physically present in Canada at the time of filing their application to “remain in Canada as a temporary resident”

If the foreign national falls within any of these three categories, paragraph 42(2)(a) provides for an exception to s. 42(1)(a) pursuant to which a foreign national is only inadmissible on the basis of an inadmissible accompanying or non-accompanying family member if that family member is inadmissible to Canada on grounds of security (section 34), human or international rights violations (section 35), sanctions (section 35.1), or organized criminality (section 37). Paragraph 42(2)(b) provides for an exception to 42(1)(b) pursuant to which a foreign national is not inadmissible to Canada if they are an accompanying or non-accompanying family member of a foreign national who is inadmissible to Canada on grounds other than those listed in sections 34, 35, 35.1 or 37

Importantly, however, the exceptions only apply in the specific case of temporary resident visas and do not impact the inadmissibility provisions for permanent resident visa applicants.

As a result, a foreign national who holds a temporary resident visa, has applied for one to enter Canada, or to remain in Canada will be inadmissible to Canada and generally unable to be conferred permanent resident status based on being or having an accompanying or non-accompanying family member who is inadmissible to Canada even if the grounds of inadmissibility fall outside sections 34, 35, 35.1 or 37 of the IRPA. This would be the case for a foreign national who applies for permanent resident status and who is or has an accompanying or non-accompanying family member who is inadmissible for serious criminality (section 36(1)) or criminality (section 36(2)).

A finding of inadmissibility is significant, as the Immigration Division or Minister will issue a removal order against the foreign national and their accompanying family members or the family members they are accompanying. However, under Rule 227(2) of the Immigration and Refugee Protection Regulations, a removal order made by the Immigration Division is also a removal order against their family members in Canada only under two conditions. First, an officer of the Canada Border Services Agency must have informed the family members of the inadmissibility report made against their accompanying family member or against the family member they are accompanying and of their right to make submissions and be represented at the admissibility hearing. Second, the Immigration Division’s decision concluding in the inadmissibility of the family member accompanying the foreign national, or who the foreign national accompanies, also concludes that each of their family members is inadmissible pursuant to s. 42 of the IRPA.

Solutions

Recourses and solutions exist for foreign nationals deemed inadmissible to Canada on grounds of an inadmissible family member. For comprehensive support and guidance through this complex process, consider partnering with Hasa Attorneys. Our experience in immigration law ensures that every step of your journey is navigated with precision and care, maximizing your chances of a favourable outcome and a new beginning in Canada.

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