Claimants who have family members in Canada (R159.5(a) to (d))
Under Article 4(2)(a) and 4(2)(b) of the Agreement, a family member of a claimant means one of the following:
- A spouse, son, daughter, parent, sibling, grandparent, grandchild, aunt, uncle, niece, or nephew. Under the STCA, in-laws are not considered family members; and
- a legal guardian provided the claimant is under 18 years of age. A guardian is a person who has custody of the claimant or who is empowered to act on the claimant’s behalf by virtue of a court order or written Agreement, or by operation of law.
A marriage that took place abroad must be valid both under the laws of the jurisdiction where it took place and under Canadian federal law. The onus is on the applicant to prove that their marriage is legal where it took place. Canada recognizes common-law and same-sex spouses as family members for purposes of the Agreement. The U.S.A. may not recognize common-law and same sex relationships for the purposes of the Agreement.
and
A claimant arriving from the U.S.A. qualifies for an exception and will not be returned to the U.S.A. if they have:
- A family member who is a Canadian citizen or a permanent resident under the Act and who is in Canada at the time the claim is made
- A family member in Canada who is a protected person within the meaning of subsection A95(2)
- A family member in Canada who is a person in favour of whom a removal order has been stayed in accordance with Section R233 (H&C considerations)
- A family member 18 years of age or older who is physically in Canada, has made a refugee claim that has been referred to the RPD, and
- the claim has not been rejected or declared abandoned or withdrawn
- the RPD proceedings have not been terminated under subsection A104 (2), and
- with respect to a positive RPD decsion, the claim has not been nullified under 104(2)
- A family member who is 18 years of age or older and holds a valid work or study permit (other than the holder of a permit that does not confer status), and who is in Canada at the time the refugee claim is made.
For more information about marriages, common-law and same-sex spouses: