December 4, 2017

Family Matters: Inadmissible Family Members and Temporary Residence Applications

Posted by Legal Team - Bellissimo Law Group PC

One of my family members is inadmissible but I am not. Can I still come to Canada and leave them at home? The short answer: sometimes and only temporarily.

The Immigration and Refugee Protection Act (IRPA) distinguishes between permanent and temporary residents when it comes to inadmissibility by virtue of having an inadmissible family member. One inadmissible member can make an entire family inadmissible. For permanent residents, the scope of inadmissibilities for accompanying family members is broader than for temporary residents. The policy behind this is understandable: permanent residents intend to remain in Canada forever and have the opportunity to sponsor family members, some of whom benefit from exemptions from certain grounds of inadmissibility in certain situations. Temporary residents are expected to leave at the end of their stay and cannot sponsor family members while their status is temporary. There is therefore a lesser risk of an inadmissible family member coming to Canada in the first place and then staying.

The distinction between temporary and permanent residents is set out in section 42 of the Act:

42(1) A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if

(a) Their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or

(b) They are an accompanying family member of an inadmissible person.

The Act sets out that foreign nationals can be inadmissible because their family members are inadmissible or because they are accompanying an inadmissible person. For this blog we will only deal with accompanying family members rather than non-accompanying family members, for whom different rules can apply.

Subsection 42(2), however, makes an exception exception:

 (2) In the case of a foreign national referred to in subsection (1) who is a temporary resident or who has made an application for temporary resident status or an application to remain in Canada as a temporary resident,

(a) the matters referred to in paragraph (1)(a) constitute inadmissibility only if the family member is inadmissible under section 34, 35 o5 37; and

(b) the matters referred to in paragraph (1)(b) constitute inadmissibility only if the foreign national is an accompanying family member of a person who is inadmissible under section 34, 35 or 37.

Section 42(2) only applies to temporary residents. This includes those who have visitor visas, study permits, or work permits, and those applying for one of these statuses for the first time or to extend it. Applicants for permanent residents are left out of the exception.

The exception in subsection (2) is actually two exceptions. The first applies to those people who are otherwise inadmissible but would not be inadmissible if they applied alone. The second applies to the inadmissible individuals themselves who will be accompanying the otherwise admissible family members.

Those who benefit from the exception can still be inadmissible because of their family members or render their family members inadmissible, but only if they are inadmissible under one of three sections of the Act: 34 – security, 35 – human or international rights violations, and 37 – organized criminality. These are some of the most serious grounds of inadmissibility and it appears that Parliament believes it is important that individuals meeting the criteria of these three sections be barred from Canada even if their intention is only to come on a temporary basis.

What this means, however, is that the other grounds of inadmissibility do not apply to family members of temporary residents. Permanent residents and permanent residence applicants can be inadmissible because of their family members’ serious criminality (36(1)), criminality (36(2)), health grounds (38), financial reasons (39), misrepresentation (40), and non-compliance with the Act (41), in addition to the grounds already mentioned. Temporary residents can only be inadmissible because of their family members if their family members are inadmissible for reasons of security, international or human rights violations, or organized criminality.

It is important to recognize that the inadmissible family member remains inadmissible. The distinction for temporary residence means that in practice, the still-admissible family member can go ahead with their application and leave their inadmissible family member behind.

While your family members may be inadmissible, it is crucial that they be disclosed on all applications that ask about them. Failure to disclose family members constitutes misrepresentation, as the disclosure allows immigration officers to determine whether you might be inadmissible because of your family members’ inadmissibility.