Sponsoring undeclared child

[Rob_TO]

I am kind of agreeing Rob_TO on this. But it is a very tricky situation. I went to read both IRCC 117 and OB2, and it seemed that the dependent's child on a family sponsorship doesn't fall into the definition of a family member that listed on IRCC117 (1), but in OB2, the authority stated that the sponsor should declare all the family members and it should be the VO to determine if any of the family member will be qualified under IRCC117 (10), who would be allowed not to go throw the VO's inspection.

"As per R117(10), the exclusion of R117(9)(d) does not apply to an applicant where it is established that an officer determined, during the course of the sponsor’s own application for permanent residence, that this applicant (then a family member of the foreign national who later became a sponsor) was not required to be examined, as applicable, under IRPA or the former Act. The key notion operating here is whether it was the decision of the officer who, being fully advised of the existence of the family member through the truthful declaration of the foreign national who later became a sponsor, determined that it was not required that that family member be examined and did not require that the family member be examined. If the decision for nonexamination was made by the officer, then R117(9)(d) does not apply in respect of that family member and that family member is not excluded."

My understanding of how the OB2 works regarding this situation is if you as a dependent (a foreign national) of a family sponsorship, you have a child (Then a family member of the foreign national), then the sponsor/PA has to declare the child, and the VO would determine if that child needs to be examined or not (Usually it won't be required (IRCC117 (10)). If the sponsor/PA didn't declare that child, and later the foreign national (the formal dependent) became the sponsor to sponsor his/her family member(s), then R117(9) (d) should apply to his/her family members.

Yes but the other rule offers a clear loophole to this regardless of how the child was not examined, or whose fault it was:
This may seem to contradict R117(9)(d). However, the intent of R117(9)(d) is that the sponsor may not sponsor a person as a member of the family class if that person was not examined as part of the sponsor's application for permanent residence. In the example given above, the child is not being sponsored as the dependent child of the sponsor, but rather as the accompanying family member of the principal applicant.

Again I have not seen many cases of this in practice, but the rule basically states as long as child is not sponsored directly as principal applicant, they get a free pass regardless of the misrepresentation in sponsor's original app.

 

[Miraclejj]

Yes but the other rule offers a clear loophole to this regardless of how the child was not examined, or whose fault it was:
This may seem to contradict R117(9)(d). However, the intent of R117(9)(d) is that the sponsor may not sponsor a person as a member of the family class if that person was not examined as part of the sponsor's application for permanent residence. In the example given above, the child is not being sponsored as the dependent child of the sponsor, but rather as the accompanying family member of the principal applicant.

Again I have not seen many cases of this in practice, but the rule basically states as long as child is not sponsored directly as principal applicant, they get a free pass regardless of the misrepresentation in sponsor's original app.

Now, I am pretty sure that in this situation, the child will be excluded as a family member. The example you used in your post refers to the following situation that if the sponsor's own PR application was submitted before June 28, 2002, when a common law partner was not defined as a family member.

Family members not excluded from family class
355 If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.

And if you read carefully the paragraph in OP2, it clearly referred to R355.

"Accompanying family members not excluded Visa offices may encounter situations where a common-law partner and dependent child of a sponsor are applying for permanent residence and these individuals were not examined at the time of the sponsor’s own pre-IRPA application for permanent residence. Common-law partners were not family members pre-IRPA so were not required to be examined. These individuals are not inadmissible under R117(9)(d). See R355. However, any children of the sponsor who met the pre-IRPA definition of dependent child should have been examined. If they are now being sponsored in the family class, then they are inadmissible under R117(9)(d). If, on the other hand, they are included in the common-law partner’s application for permanent residence as accompanying family members, then they are not being sponsored themselves as members of the family class but rather are the family members of a member of the family class and hence they are not inadmissible under R117(9)(d). R70(4) states that, "A foreign national who is an accompanying family member of a foreign national who is issued a permanent resident visa shall be issued a permanent resident visa, if, following an examination, it is established that (a) the accompanying family member is not inadmissible; . . . ". This may seem to contradict R117(9)(d). However, the intent of R117(9)(d) is that the sponsor may not sponsor a person as a member of the family class if that person was not examined as part of the sponsor's application for permanent residence. In the example given above, the child is not being sponsored as the dependent child of the sponsor, but rather as the accompanying family member of the principal applicant."

The child will not be excluded only for those sponsors that their own application filed before June 28, 2002 .

 

[Rob_TO]

Now, I am pretty sure that in this situation, the child will be excluded as a family member. The example you used in your post refers to the following situation that if the sponsor's own PR application was submitted before June 28, 2002, when a common law partner was not defined as a family member.

Perhaps it's only for cases where sponsor applied pre-IRPA. However it's the child of the applicant at that time that is in question, not the relationship to the child's other parent. Change in definition of a common-law partner, would not change the fact the child was still not included in original app.
All I know is that the rule has recently been cited by a visa officer and someone in a similar case was able to sponsor an undeclared child.

I don't know if all visa officers view this rule the same way, there are not enough cases to judge.

 

[Miraclejj]

Perhaps it's only for cases where sponsor applied pre-IRPA. However it's the child of the applicant at that time that is in question, not the relationship to the child's other parent. Change in definition of a common-law partner, would not change the fact the child was still not included in original app.
All I know is that the rule has recently been cited by a visa officer and someone in a similar case was able to sponsor an undeclared child.

I don't know if all visa officers view this rule the same way, there are not enough cases to judge.

Sure, that is why I said this is a very tricky situation in my previous post.

 

[Rob_TO]

Sure, that is why I said this is a very tricky situation in my previous post.

I found very few cases on Canlii dealing with this, and most of them were in fact for pre-IRPA cases when a child was undeclared.

However there is 1 of interest of a later case (so original app and non-declaration was after 2002), that cited the rules and allowed it for the dependent child. This appeal was actually dismissed but for another reason related to a fraudulent marriage. Below part is key just in reference to the dependent child.
https://www.canlii.org/en/ca/irb/doc/2012/2012canlii98582/2012canlii98582.html

He testified that she sponsored him to Canada and he was landed in Canada in October 2006.

The appellant does not dispute the fact that he did not include his daughter on his application for permanent residence. Had the appellant been sponsoring his daughter on his own, I would have no choice but to find that the appellant’s daughter would be caught by section 117(9)(d) of theRegulations as she would not be considered a member of the family class. However, in these circumstances, the appellant’s daughter is being sponsored as a dependent child of the applicant and I find that section 117(9)(d) does not apply to her in this context. While clearly this panel has to come to its own decision, my legal reasoning is supported by the Minister’s own procedures found in the Immigration Overseas Manual[1] which specifically deals with this very situation:

This may seem to contradict R117(9)(d). However, the intent of section 117(9)(d) is that the sponsor may not sponsor a person as a member of the family class if that person was not examined as part of the sponsor's application for permanent residence. In the example given above, the child is not being sponsored as the dependent child of the sponsor and thus a member of the family class, but rather as the accompanying family member of the applicant. As such, the appellant’s daughter is no longer an issue for this appeal.

 

[Miraclejj]

I found very few cases on Canlii dealing with this, and most of them were in fact for pre-IRPA cases when a child was undeclared.

However there is 1 of interest of a later case (so original app and non-declaration was after 2002), that cited the rules and allowed it for the dependent child. This appeal was actually dismissed but for another reason related to a fraudulent marriage. Below part is key just in reference to the dependent child.
https://www.canlii.org/en/ca/irb/doc/2012/2012canlii98582/2012canlii98582.html

He testified that she sponsored him to Canada and he was landed in Canada in October 2006.

The appellant does not dispute the fact that he did not include his daughter on his application for permanent residence. Had the appellant been sponsoring his daughter on his own, I would have no choice but to find that the appellant’s daughter would be caught by section 117(9)(d) of theRegulations as she would not be considered a member of the family class. However, in these circumstances, the appellant’s daughter is being sponsored as a dependent child of the applicant and I find that section 117(9)(d) does not apply to her in this context. While clearly this panel has to come to its own decision, my legal reasoning is supported by the Minister’s own procedures found in the Immigration Overseas Manual[1] which specifically deals with this very situation:

This may seem to contradict R117(9)(d). However, the intent of section 117(9)(d) is that the sponsor may not sponsor a person as a member of the family class if that person was not examined as part of the sponsor's application for permanent residence. In the example given above, the child is not being sponsored as the dependent child of the sponsor and thus a member of the family class, but rather as the accompanying family member of the applicant. As such, the appellant’s daughter is no longer an issue for this appeal.

Interesting enough, there is a case that is more similar to the issue that we are discussing that the father (then a dependent who later became a sponsor) was charged on the ground of misrepresentation and was barred from Canada.
https://www.canlii.org/en/ca/irb/doc/2008/2008canlii91118/2008canlii91118.html?searchUrlHash=AAAAAQASbm9uIGRlY2xhcmVkIGNoaWxkAAAAAAE&resultIndex=1

So, I guess, it really depends on the judge.

 

[Rob_TO]

Interesting enough, there is a case that is more similar to the issue that we are discussing that the father (then a dependent who later became a sponsor) was charged on the ground of misrepresentation and was barred from Canada.
https://www.canlii.org/en/ca/irb/doc/2008/2008canlii91118/2008canlii91118.html?searchUrlHash=AAAAAQASbm9uIGRlY2xhcmVkIGNoaWxkAAAAAAE&resultIndex=1

So, I guess, it really depends on the judge.

Yes a very interesting case. It's really a hit and miss if they make moves to proceed with the misrepresentation charge in these undeclared dependent cases. Definitely a huge risk to consider though.

Also interesting in that they chose not to charge the mother (primary applicant) with misrepresentation even though by default she would have misrepresented as well. Mainly due to the fact she was unaware of the child's existance. So they really try to confirm the intentions and if it was a purposeful move to not declare the child.

 

[conjea]

so,do you mean if i sponsor my husband there will be no problem if i add my daughter in my application?

Hi aireen I have exactly the same situation as yours. I am from philippines also and I am so scared about our situation that the immigration can send us back to the philippines.

 

[Jermy100]

Hello!!
My wife is currently in a similar situation as "aireeen725" . My Wife was a dependent on her Stepmother's application and during the process my wife got pregnant with our son. To my understanding the Stepmother wasn't aware of how the whole declaration works, more over while going through immigration at the airport they didn't ask my wife any questions and all the question were directed towards the Stepmother. My wife had obtained her PR card and 6 months after she had returned to our homeland and we got married. Now she would like to start the sponsorship process for me and our son and while doing some research we were told getting our son there would pose a problem because he wasn't declare. :-(

I had went ahead and done the application on my own, even though the all those lawyers that I had talk to told me it is impossible and my app would lead to misinterpretation and even wanted to charge me $6000CAD for their assistance.
Am so happy that I didn’t listen to them and took a leap of faith and now My application has now been approved and I’ve obtain my PR for myself and my son

 

[ConnieCL]

09 Oct 2019

Immigration Pilot Program to Sponsor Undeclared Family Members Opened in Canada

Could anyone please refer me to the process and the forms? I was sponsored by my mother to come to Canada. I did not declare my son when I entered Canada then. Now I want to sponsor him under this pilot program. I have searched and searched but I cannot find the process of how to do it. Please HELP....

 

[zardoz]

09 Oct 2019

Immigration Pilot Program to Sponsor Undeclared Family Members Opened in Canada

Could anyone please refer me to the process and the forms? I was sponsored by my mother to come to Canada. I did not declare my son when I entered Canada then. Now I want to sponsor him under this pilot program. I have searched and searched but I cannot find the process of how to do it. Please HELP....

Exactly how did your mother "sponsor" you? Were you a dependent on HER application for PR? If so, how did she become a PR?

Also, are multiple people using this same forum account?

 

[Ram01]

I had went ahead and done the application on my own, even though the all those lawyers that I had talk to told me it is impossible and my app would lead to misinterpretation and even wanted to charge me $6000CAD for their assistance.
Am so happy that I didn’t listen to them and took a leap of faith and now My application has now been approved and I’ve obtain my PR for myself and my son

Hi Jermy.

Can I connect with you? We have similar situation and I'd like to ask for advise from you.

Thank you,

Ram

 

[msucanthave]

Hi Jermy.

Can I connect with you? We have similar situation and I'd like to ask for advise from you.

Thank you,

Ram

I have the same situation. Can I connect with you as well please? Thanks

 

[Thabe]

Hi guys. We’re having a concern since our son was undeclared by my husband. Our expectation is that our application might got refuse due to misrepresentation.
But we just received our GCMS note, stating this on our initial review:

“Dependent (name of our son) was not declared. However, as the Principal Applicant is not an excluded family member and Dependent is not being sponsored themselves as members of the family class but rather as an accompanying dependent of a member of the family class, the Dependent is not inadmissible under R117(9)(d). Eligibility passed.”

Guys, what are your thoughts/understandings about this? Thank you in advance.

Hello
I am also in trouble, could you please let me know that you married before or after your spouse landing and what kind of application your spouse proceed like sponsor from family or self migration.
Thanks

 

[LC2017]

Hello family!!!So my husband sponsored me in 2017,got two kids ...But he has a son back home that he did not declare when he came as a refugee.I want to know if I can sponsor him since he is going thru bankruptcy under the new pilot project of sponsoring undeclared family members.Can I sponsor my step son?