How to Sponsor a Relative to Canada?
Alone and planning to sponsor a relative? Read this article to learn about the court battles surrounding the “lonely Canadian” provision in Canada’s immigration regulations and what it means for you.
This article focuses on the “lonely Canadian” provision of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR] and the key cases: Sendwa 1, 2 and Bousalhe.
Conventional interpretation
Traditionally, section 117 IRPR was interpreted by immigration professionals to allow Canadians or permanent residents to sponsor the following family members:
- Spouse, common-law partner or conjugal partner (partner);
- children;
- parents;
- grandparents;
- orphans who are siblings, nephews, nieces or grandchildren;
- children intended for adoption in Canada;
- other relatives, regardless of age, if the sponsor:
a) has no living spouse, partner, child, parent, sibling, nephew, niece, grandparent, aunt and uncle, who is a Canadian citizen, permanent resident or registered Indian; and
b) has none of the listed family members (1 to 6) to sponsor.
Even if the sponsor does not want to sponsor relatives listed in paragraphs 117(1)(a) to (g) IRPR (1 to 6) due to estrangement, the possibility of their sponsorship takes priority over a sponsorship of other relatives.
The last resort to unite with a relative is the application for permanent residence based on humanitarian and compassionate considerations pursuant to subsection 25(1) of the Immigration Refugee Protection Act, S.C. 2001, c. 27 [IRPA].
A new approach
Sendwa 1
In Sendwa v. Canada (Citizenship and Immigration), 2016 FC 216, 39 Imm LR (4th) 328 [Sendwa 1], the Federal Court raised issues with the traditional interpretation and application of the “lonely Canadian” provision; in particular, the words “may otherwise sponsor” at subparagraph 117(1)(h)(ii) IRPR.
Michel M.J. Shore J. ascertained at paragraph 18 that the clear intent of paragraph 117(1)(h) IRPR is to help people who are alone in Canada by providing an opportunity to sponsor a distant relative. Further, he noted at paragraph 19 that “may” means “capable.”
On February 17, 2016, the court ruled that the Immigration Appeal Division’s (IAD) interpretation was too restrictive at paragraph 21 and overturned its decision as follows:
In the present case, the IAD held that the Applicant’s application was rejected simply because her parents were alive. The IAD 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.
Transitional phase
The uncertainty in law as to whether a sponsor’s parents must be dead before being permitted to sponsor another relative of any age, led the Chairperson of the Canadian Immigration and Refugee Board to announce on June 25, 2018:
In allowing the application for judicial review in Sendwa, the Federal Court introduced admissibility and eligibility considerations as factors in deciding eligibility for sponsorship applications under paragraph 117(1)(h) of the Regulations.
Bousaleh
In Bousaleh v. Canada (Citizenship and Immigration), 2018 FCA 143 [Bousaleh], the Federal Court of Appeal determined that it is not necessary to consider whether a hypothetical application for permanent residence by a relative would have a likelihood of success.
On July 26, 2018, the court found in Bousaleh, at paragraph 35 that Sendwa 1 created the only split in case law on the lone Canadian provision. Further, the panel of three judges agreed at paragraph 56 that “the only thing to consider is whether or not such a listed relative exists.” Consequently, the panel decided at paragraphs 73 and 75 as follows:
[73] Having considered this purposive analysis, in my view, it was reasonable for the IAD to conclude that subparagraph 117(1)(h)(ii) is meant to establish an objective criterion to determine if the relative selected by the sponsor is a member of the family class. Subparagraph 117(1)(h) (ii) speaks of a characteristic of the listed relatives. This characteristic is whether the listed relative is a person who may file an application for permanent residence as a family class member as it is only the application of such a member that a sponsor may otherwise sponsor under Part 7 of the Regulations. As it appears clearly from the French version, the focus is not on the merits of the application for a permanent residence but on the person who may file it.
[75] As found by the IAD in this case, and in the vast majority of cases before the IAD, subparagraph 117(1)(h)(ii) speaks of whether a sponsor has a listed relative that he has otherwise the right to sponsor as a member of the family class pursuant to paragraphs 117(1)(a) to (g), taking into consideration subsection 117(9). Thus, if Sendwa stands for the proposition that such an interpretation is unreasonable, it is wrong.
Return to tradition
Sendwa 2
In Sendwa v. Canada (Citizenship and Immigration), 2018 FC 569 [Sendwa 2], E. Susan Elliott J. held that the historical interpretation of section 117 IRPR has not been misinterpreted at paragraph 98 and dismissed the application for judicial review on June 1, 2018:
In my view, in the overall context of this legislation, a plain grammatical reading of the whole of section 117 of the IRPR means that both subparagraphs apply to the enumerated relatives. A generic relative can only be sponsored when there is no one who may be sponsored from the enumerated group of relatives.
On October 30, 2018, the Federal Court issued Supplemental Judgment and Reasons to address the split in recent case law and certified the following question of general importance in Sendwa 2, 2018 FC 1091 at paragraphs 6 and 7:
[6] The proposed question was answered by the IAD and that decision was upheld in my judgment as being reasonable. It transcends the interests of the parties and, as there is a split in the Court, the case law is not settled so it raises a question of general importance.
[7] Having considered the positions of the parties and the Court of Appeal reasons in Bousaleh, the following question is certified:
In determining an application for permanent residence under section 117(1)(h) of the Immigration and Refugee Protection Regulations SOR/2002-227, (IRPR) is consideration of the financial eligibility criteria in section 133(1)(j)(i)(B) of the IRPR required by subparagraph 117(1)(h) of the IRPR?
If so, does the existence of a right of appeal to the Immigration Appeal Division require a sponsor to appeal the denial of an application to sponsor such a relative because of the financial ineligibility of the sponsor in order to establish that there are no relatives whom the sponsor may otherwise sponsor?
Near future
On November 28, 2018, the Notice of Appeal was filed against the decision by Justice Elliot of the Federal Court (FC file no. IMM-5367-16). The Appeal is scheduled to be heard at a special sitting in Toronto on November 13, 2019, at 14:00 ET (FCA file no. A-384-18).
It remains to be seen whether the Federal Court of Appeal will settle the dispute and create legal certainty once and for all.
Opinion
Laws are rules made by people and for people. To cover many common life scenarios, the legislators must write statutory law abstractly. To interpret the intent of the legislators effectively, one must strike the balance between grammar, terminology and history.
Essentially, the uncertainty revolves around the interpretation of the verb “may” as stated in paragraph 117(1)(h) IRPR. In formal texts “may” expresses “ability” or “permission”; therefore, could mean either “to be able” or “to be allowed.” When interpreting federal statutory law, “may” is to be understood as “permissive action” per section 11 of the Interpretation Act, R.S.C., 1985, c. I-21. Generally, “may” indicates “discretion”, “option” or “permission” in the context of immigration law.
Context is the dominant factor in comprehending the true meaning of words used by the lawmakers. The purpose of legislation is to guide people throughout life by indicating how they are supposed to interact with each other. Consequently, the legislators create norms in harmony with the values of a nation that approve or disapprove of certain actions. In short, laws specify what people are allowed to do.
Concluding, the verb “may” in context of paragraph 117(1)(h) IRPR means that a solitary sponsor is permitted to sponsor one distant family member regardless of age. Concretely, the “lonely Canadian” has the right to apply for family sponsorship of “any remaining relative.”
The art of timing is essential in all aspects of life and law. If you want to know how the interpretation on paragraph 117 (1)(h) IRPR will be settled, pay attention to the appeal hearing. If you wish to sponsor a relative, contact an authorized representative at myconsultant.ca to discuss your case before you apply.
Disclaimer
Information provided in this article does not constitute immigration or citizenship advice. Authorized representatives are the only individuals allowed to assist applicants with immigration and citizenship services for a fee. In addition, immigration laws, regulations, and policies are changing constantly.
If you need help with the assessment of your case, then obtain sound immigration or citizenship advice from one of the authorized representatives at myconsultant.ca. Only with a proper case strategy can you reach the ultimate goal of Canadian permanent residence or Canadian citizenship.
Sources:
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