WHAT HAPPENS WHEN YOU FAIL TO DECLARE A DEPENDENT ON AN APPLICATION?
Posted on 28/03/2018
- A resident of Canada who migrated to Canada under a spousal sponsorship admitted after the fact of his arrival in Canada, that he had an undeclared child outside Canada.
- He did not declare the child because his ex-wife, whom he had divorced, had gained full custody of their child, and both the undeclared child and the wife were living outside Canada.
- The resident now wanted to sponsor his undeclared child who was now 16 years old, and therefore still a dependent.
Canadian immigration authorities do not look on this situation favorably – with the exception of certain limited cases that usually involve refugees or people of protected status – and the applicant likely has endangered his own status as a Canadian Permanent Resident. Let’s examine why this is the case.
When Dependents are Excluded From the Family Class according to Immigration Rules
Under Canadian immigration regulations R125(1)(d) and R117(9)(d), persons are excluded from the family class – despite their relation to the sponsor – if they were not examined by immigration officials during the sponsor’s application for permanent residence. In order to be examined, which means immigration officials review all their relevant personal information, (like Medical Records, Any Criminal Records, or Security Concerns) relating to that person to determine if they are eligible to come to Canada, they of course first must be declared by the sponsor. A dependent who has not been declared is therefore excluded from the sponsor’s family class.
The intent of these regulations is precisely to ensure that in the cases where the applicant makes the decision to not declare a dependent, that applicant cannot later benefit by sponsoring the dependent as a member of the family class. They are specifically designed to ensure that otherwise inadmissible family members who would have prevented an applicant’s initial immigration to Canada due to admissibility concerns, do not later benefit from the misuse of generous family sponsorship rules in Canada.
When Sponsors Can Include Undeclared Dependents in a New Application
There are exceptions to these regulations but they are limited and should not be relied on as an “escape valve” for any applicant that changes their mind and decides to declare and sponsor a dependent. Situations in which an undeclared dependent may possibly be eligible are:
The OP-listed regulations say: Where, however, the applicant has declared the person and CIC (IRCC) chooses not to examine the family member, for example, because of an administrative decision or for policy reasons, or due to an administrative error, the family member is not excluded from membership in the family class. However a sponsor cannot sponsor a family member if an officer determined at the time the sponsor previously submitted their application for permanent residence:
- That the sponsor was informed that the family member could be examined and that the sponsor was able to make the family member available for examination, but did not do so, or
- That the family member did not appear for examination when he was able to do so.
- Non-accompanying family members of a protected person who is seeking to remain in Canada do not have to be examined under current regulations.
- Family members of an applicant for refugee status also do not have to be examined.
- Family members of a Humanitarian & Compassionate (H&C) grounds case who were not permitted to be part of the application are also excluded from having to be examined.
- Under the previous regulations, an applicant who was formally separated from his spouse and whose dependent was under custody of the sponsor’s spouse or ex-spouse, an application could proceed even if the dependent had not been examined.
In general, Canada does have obligations under the Convention on the Rights of the Child to consider the best interests of the child in specific cases. In these cases the following guidelines would generally apply:
Where family members were declared but not examined and it is clear that the applicant and/or sponsor made their best efforts to facilitate this examination, and this lack of examination was beyond the applicant/sponsor’s control, considering the use of H&C factors may be appropriate.
When the client presents compelling reasons for not having disclosed the existence of a family member, it may also be appropriate to consider the use of H&C factors. For example, a client presents evidence that they believed their family members were dead or that their whereabouts were unknown; or that the existence of a child was not disclosed because it would cause extreme hardship because the child was born out of wedlock in a culture that would put them in a vulnerable or dangerous situation.
These reasons, if they apply in a case, should be presented in a detailed affidavit and corroborated with other documentation if possible.
Is the Sponsor’s Permanent Resident Status at Risk?
A further complicating factor is that by not declaring a dependent, the resident is putting his status at risk. The sponsor appears guilty of misrepresentation – a broadly defined provision – and he is reportable under immigration rules. If he is subject to a report, he will be informed of the criteria on which his case will be assessed. This includes:
- Age when he became a permanent resident.
- Length of time in Canada
- Location of family support and related responsibilities
- How established he is: employment, language skills, community involvement
- Any criminal activity involved
- Any other factors deemed appropriate by the immigration officer
Once the immigration officer writes the report, it will be referred to the Minister’s Delegate. If the Minister’s Delegate finds the report is well-founded, they will refer it to the Immigration Division who will then hold an Inadmissibility Hearing. If at the conclusion of this hearing, the resident is found to have misrepresented a material fact on his original application to be sponsored as a migrant to Canada, a removal order could be issued.
Because this individual would be essentially admitting to not having declared a dependent, that removal order would likely be issued and the individual would be subject to deportation from Canada. He would, however, have a right of appeal before the Immigration Appeal Division. It is here at this appeal hearing, that the individual (or his representative) would have to make the case that he should remain in Canada and should be allowed to sponsor his undeclared dependent on Humanitarian and Compassionate grounds. This is, unfortunately, by far a guaranteed outcome in this case, and in many other similar cases.
In other words, it is never a good idea to make any material misrepresentation on any application involving the IRCC. If you have doubts and are uncertain about what information to include in any immigration application, consulting with an immigration lawyer or a regulated Immigration Consultant is essential.