Acquiring Permanent Resident Status: The Family Class and Sponsorship

• Author: Jamie Chai Yun Liew; Donald Galloway
• Pages: 177-222

177

CHA PTER 6

ACQUIRING

PERMANENT

RESIDENT STATUS:

THE FAMILY CLASS

AND SPONSOR SHIP

A. INTRODUCTION

A primary objective of immigration law, identif‌ied in the Immigration

and Refugee Protection Act, section 3(1)(d), is “to see that families are

reunited in Canada.”1 To achieve this objective, Canadian law permits

Canadian citizens and perma nent residents to sponsor applications for

permanent residence by close relatives who meet the criteria for mem-

bership of the family class. An essentia l aspect of this program i s that

the sponsor must sign an undert aking to reimburse the federal or prov-

incial government within a specif‌ied time “for every benef‌it provided

as social assistance to or on behalf of the sponsored foreign national

and their family members.”2

Section 12 of the IR PA prov ides the underly ing principle. It st ates:

A foreign national ma y be selected as a member of the fa mily class

on the basis of thei r relationship as the spouse, common-law pa rtner,

child, parent or other pre scribed fami ly member of a Canadia n cit-

izen or permanent resident.3

1 SC 2001, c 27 [IRPA].

2 Immigration and Refugee Protection Regulations, SOR/2002-227, s 132(1) [Regula-

tions].

3 IR PA, above note 1, s 12(1).

IMM IGRAT ION LAW178

Apart from showing that they are in one of the specif‌ied relation-

ships with their spon sor, family class immigrants are not required

to meet any other selection criteria, such as those imposed on immi-

grants in the economic cla sses. They are, however, subject to criteria

of inadmissibility4 and, as discussed below, in some circumstances the

status they receive may be conditiona l. In addition, their sponsor must

meet a number of onerous eligibility conditions. This chapter e xamines

each of the components of the family cla ss program. First, it outlines

the criteria us ed to determine membership in the fam ily class, includ-

ing the standard s devised to adjudge whether a relationship is genuine.

Next, it focuses on the rules def‌i ning eligibility to sponsor and the na-

ture of the undertaking that a sponsor must make. Finally, it outlines

the appeal rights of a spon sor whose application has been rejected and

introduces the process of applying for judicial review.

B. MEMBERS OF THE FAMILY CLASS VERSUS

FAMILY MEMBERS

As a preliminary matter, it is important to recognize that the program

that permits sponsorship of family class members is only one of the

ways in which our laws pay heed to the impor tance of familial relations.

Most important, this program should be distinguished from the pro-

gram that allows i ndividuals who are applying to imm igrate to Canada

to seek admission simulta neously on behalf of their spouses, common

law partners, and dependent children. Section 1(3) of the Regulations

tries to draw t his distinction, but does so in a somewhat hamf‌isted

way by referring to the latter g roup as family members.5 The attempt is

clumsy because the IR PA also use s the term family me mber less tech-

nically in a number of sections, including section 12, quoted above. By

adopting this confusing terminology, the Regulat ions become unw ieldy

and prolix.6

4 It should be noted that under t he IRPA, s 38, a nd the Regulations, s 24, the cr ite-

ria of inad missibility are reduce d for intimate partners a nd dependent children.

5 Regulation s, above note 2.

6 Ibid, s 1(2): Section 1(3) of the Regulations prov ides the following def‌inition for

family member:

For the purpose s of the Act, other than sect ion 12 and paragraph 38(2)(d),

and for the purpo ses of these Regulat ions, other than sections 159.1 and

159.5, “family member” in re spect of a person means:

(a) the spouse or common-l aw partner of the person;

Acquiring Per manent Resident Status: The Fam ily Class and Sponsorsh ip 179

The law def‌ining membership in the family class (those who may

be sponsored) overlaps with the law def‌i ning family members (those

who may be included as dependants in an application for a permanent

resident visa) in three distinct ways. First, some relationships that f‌it

under both categories (spouse, common law partner, and dependent

child) are def‌ined or analyzed identicially in both contexts.7 It should,

however, be noted that the family class includes m any more relation-

ships than does the law def‌ining family me mber.8 Second, a person who

is sponsored as a member of the fa mily class may include fam ily mem-

bers in an application.9 A sponsor’s spouse, for example, may include

dependent children in the application for permanent resident status.

This opportunity can lead to an apparent anomaly. Although, in most

circumstances, a person cannot sponsor a sibling as a member of t he

family class, a person can sponsor a parent who is able to attach a

dependent child (the sponsor’s sibling) to the application. Third, and

discussed i n greater detail below, a person applying to immigrate to

Canada as a per manent resident must identify all family members who

are not accompanying her.10 Should the applicant fail to do so, any indi-

vidual who should have been so identif‌ied is ineligible to be sponsored

as a member of the family cl ass by the applicant at a later time, after the

applicant has been gra nted status.11

The distinction between membership in the family class a nd family

members is partially ref‌lected in how the government reports im migra-

tion statistics. In its prel iminary t ables, Facts and Figures 2013: Immi-

gration Overview: Permanent Residents,12 Citizensh ip and Immig ration

Canada (CIC) reports that, in 2013, the Canadian government accepted

148,181 individuals as economic immigr ants; however, a subgroup

of these newcomers includes a large number of individua ls (79,684

in total) who are identif‌ied as spouse s and dependants of “principal

(b) a dependent child of t he person or of the person’s spouse or common-

law partne r; and

(c) a dependent child of a dependent chi ld referred to in paragraph ( b).

7 Ibid, ss 116–22: Sections 116 to 122 of the Regulation s refer to “family clas s”; s

70 refers to “family me mber” in the context of perma nent resident visa applica-

tions.

8 Ibid, s 117(1): Section 117(1) of the Regulations li sts these relationsh ips. See Sec-

tion C, below in th is chapter, for the list.

9 Ibid, ss 121–22.

10 Ibid, s 10(2).

11 Ibid, s 117(9)(d).

12 Citize nship and Immigration C anada, Facts and Figures 2013: Immigration Over-

view: Permane nt Residents, Canada – Per manent Resident s By Category, online:

www.cic.gc.ca/english/resourc es/statistics/ facts2013/permanent/02.asp.