There is a not-so hidden law in the immigration regulations that dictate who a person can sponsor to Canada.
Many people have used it.
More have been excluded from it.
Many have asked about it only to be disappointed.
The specific clause is not the run of the mill spousal or child sponsorship.
It is clear and widely known that a Canadian Citizen or Permanent Resident of Canada (called the sponsor) is able to sponsor a parent or child or spouse or common law partner.
While the definition of child is restricted to those under age 19 and while a sponsor must earn sufficient income to sponsor a parent, it remains clear as to the eligibility of these family class members entering Canada.
However, the same regulatory paragraph allows the sponsorship of any relative of any age where the sponsor does not have a relative in Canada AND which does not have a parent, child, spouse etc....who they can otherwise sponsor.
The interpretation of “who they can otherwise sponsor” has always meant to this writer, to all lawyers and to all courts that a sponsor can only sponsor under the rule if their parents were deceased, grandparents were deceased and had no living relative eligible to sponsor.
In other words, the sponsor had to first prove they had no other person to sponsor to qualify.
In support of this interpretation there are hundreds and countless of cases that have been refused and dismissed by the courts when a sponsor tried to sponsor a niece for example when their elderly parent was still alive.
However, a recent Federal Court of Canada case seems to cloud the waters on the interpretation of this regulation.
The court has allowed the appeal of a sponsor who was refused when she tried to sponsor her 22-year-old niece.
The Canadian Embassy refused the application because the sponsor’s mother was alive.
The sponsor appealed the decision of the visa officer to the Immigration Board (IAD) but the IAD upheld the refusal because it stated that the niece was not a member of the family class since the sponsor’s mother was still alive.
As stated above, the Canadian Embassy’s refusal letter has been the correct approach for years.
The IAD’s decision was also the correct one based on countless previous cases.
However, this particular sponsor went further and brought a judicial review application to the Federal Court.
She argued to the federal court that she should be able to sponsor her niece even though her mother was alive because she did not earn sufficient money to sponsor a parent and that her mother would not pass a medical.
So she is arguing that the words “can otherwise sponsor” should mean that she is not eligible to sponsor due to some admissibility or eligibility consideration.
This is shocking and opens the floodgates to all applications of this type now.
The dust has not settled but it seems the courts are now in need of a clear guideline of how to interpret the clause.
Further, how will a sponsor be able to prove that that their parent is inadmissible?
In my view, the interpretation by the recent federal court case is incorrect and the drafters of the regulations did not intend on having sponsors bring over a niece for example just because a parent was old or income was too low.
The reasoning behind the rule is to allow sponsors to bring over one relative because they are truly alone in the world.
We will need to see if I am correct or not as other cases get adjudicated.
Atty. Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.
The above article is general advice only and is not intended to act as a legal document.