Sponsorship and DNA testing

Lecture, McGill Gis Workshop on DNA Testing and Family Sponsorship, April 30th 2015

Updated February 2018

1. General overview

Family reunification is one of the key goals of the Canadian immigration system and takes up a significant portion of all immigration. In 2013, family reunification made up 23.9% of all new permanent residents in Québec, and 30.77% Canada.

 In terms of general procedure, family reunification is realized through sponsorship: a qualified person sponsors an eligible and admissible family member for a given period of time, which allows this family member to become a permanent resident. To quote the Supreme Court: «Family reunification is based on the essential condition that in exchange for admission to this country the needs of the immigrant will be looked after by the sponsor, not by the public purse.»

The family member does not need to qualify as an «economically viable» immigrant, the eligible family relation being the only category specific criteria that needs to be satisfied.

Certain criteria apply to the sponsor: he or she has to comply with financial and other criteria to qualify as a sponsor. These, as well as the applicable procedures, will depend on whether the sponsor is a resident of Quebec or not, as Quebec has its own set of financial criteria with respect to sponsorship undertakings and its administration, pursuant to section 8(1) of the Immigration and Refugee Protection Act (IRPA).

If a family member receives a permanent residence visa, the person will be admitted to Canada as a permanent resident on the condition that, at the time of landing, the family situation has not changed from the one disclosed at the outset of the application.

Once a sponsored family member receives permanent residence, he or she will need to comply with residency requirements to first keep his status, or eventually apply to become a Canadian citizen. If the application is refused, appeals are possible, as will be explained later on.

Obviously, the general requirements applying to all immigrants, in particular the absence of reasons of inadmissibility, apply to family reunification.

2. Who can sponsor?

The sponsor needs to be a permanent resident or a Canadian resident who:

• Is at least 18 years of age;
• Resides in Canada or intends to reside in Canada when the foreign national becomes a permanent resident;
• Sponsors a member of the family class or the spouse or common-law partner in Canada class.

And in the case of a sponsor who became a permanent resident after being sponsored by a spouse, common-law partner or conjugal partner, he/she may not sponsor a spouse, common-law partner or conjugal partner unless he/she has been a permanent resident for a period of at least five (5) years or has become a Canadian citizen.

Hence, the emancipated minor by marriage cannot sponsor a family member and in Quebec, the sponsor needs to be a Quebec resident.

2.1.  Undertaking

The undertaking is a written agreement to be signed by the sponsor that includes:

1. A statement by the sponsor and the co-signer (if applicable), that they will provide for the basic requirements of the sponsored and their accompanying family members during the applicable period referred to in subsection (1);
2. A declaration by the sponsor and the co-signer (if applicable), that their financial obligations do not prevent them from honouring their agreement with the sponsored and their undertaking to the Minister in respect of the person’s application; and
3. A statement by the sponsored that they will make every reasonable effort to provide for their own basic requirements as well as those of their accompanying family members.

It is an unconditional and legally binding contract by which the sponsor commits himself to support his sponsored family members for the entire duration of the undertaking, even if the family situation changes or if financial hardship arises.

Undertakings can only be revoked prior to the sponsored becoming a permanent resident, once the family member is a landed permanent resident, this cannot be done. In the case of a spouse, this means that the sponsor will remain financially responsible, even in case of a divorce or break up of the relation for common law spouses and conjugal partners. The question remains as regards the undertaking if the marriage is annulled.

No court decision as of yet determined the consequences of an annulment, though it does not seem unlikely that, even in this case, the courts might hold the sponsor to be financially responsible.

Hence, it is the sponsor’s, and not society’s responsibility to provide the sponsored family member(s) with food, clothing, lodging and all other necessary expenses. If the sponsor does not provide these, the family member can seek social assistance, but the competent authorities can demand that the amounts granted to the sponsored family members be reimbursed by the sponsor. These amounts can obviously rise quickly. The duration of the undertaking depends on whether the sponsor resides in Quebec or not.

2.1.1.    Québec

The duration of the undertaking of a partner and their accompanying family members is three (3) years. In the case of children, children to be adopted or minor single-family members (19(f) RRSFN), the duration depends on the age of the child:

• if the child is under thirteen (13) years old: the undertaking lasts until the child reaches majority, but can never be less than ten (10) years;
• if the child is older than thirteen (13) years: the undertaking lasts until the child becomes twenty two (22) years old, but can never be less than three (3) years;
• for all other family members (parents, grandparents or “sole family member”), the duration is ten (10) years.

Furthermore, the validity of the undertaking was confirmed by the Quebec Court of Appeal (KECHICHIAN).

For sponsorships of Quebec residents, the Ministère de l’Immigration, de la Diversité et de l’Inclustion (MIDI) has competence regarding the undertaking, but the first step remains the determination if a person is an eligible sponsor for the family member(s) concerned. The person will receive instructions from CIC to proceed with the MIDI.

2.1.2.    Federal

Signing of an undertaking to the MIDI or to the province which obliges the sponsor to reimburse Her Majesty in right of Canada or a province for every benefit provided as social assistance to or on behalf of the sponsored foreign national and their family members during the period, the duration of which is of:

• three (3) years, in the case of a spouse or common-law spouse or conjugal partner;
• the earlier of ten (10) years or on the day the dependent child less than nineteen (19) years of age reaches twenty two (22) years of age;
• three (3) years if the dependent child is nineteen (19) years of age or older from the day he became a permanent resident;
• of twenty (20) years from becoming a permanent resident for the sponsor’s mother, father, grandmother and grandfather; and
• of ten (10) years for any other person.

3. Conditions applicable to the sponsor

Since October 25, 2012, if a sponsored partnership fails and the sponsored spouse, common-law partner or conjugal partner remains in Canada, he or she cannot sponsor another partner, unless a waiting period of five (5) years has lapsed or he or she become a Canadian citizen.

Would be excluded in Canada offences for which a pardon was granted or if a period of five (5) years or more has elapsed since the completion of the sentence. Are also excluded acquittal of offences committed outside Canada, or if a period of five (5) years or more has elapsed since the completion of the sentence and the sponsor has demonstrated that they have been rehabilitated.

The sponsor needs not to be under an immigration investigation and not in default of any previous sponsorship undertaking or any support payment obligation ordered by a civil court, not in default in respect to the repayment of any debt referred to in subsection 145(1) of the Act payable to Her Majesty in right of Canada (immigration related payments), not an undischarged bankrupt under the Bankruptcy and Insolvency Act and not in receipt of social assistance for a reason other than disability

The sponsor needs also to be in compliance with immigration rules, amongst others: not be subject to a removal order, not detained in any penitentiary, jail, reformatory or prison, and not been convicted outside Canada or under the Criminal Code of any of the following:

• (i) an offence of a sexual nature, or an attempt or a threat to commit such an offence, against any person;
• (i.1) an indictable offence involving the use of violence and punishable by a maximum term of imprisonment of at least 10 years, or an attempt to commit such an offence, against any person; or
• (ii) an offence that results in bodily harm, as defined in section 2 of the Criminal Code, to any of the following persons or an attempt or a threat to commit such an offence against any of the following persons:
  • (A) a current or former family member of the sponsor,
  • (B) a relative of the sponsor, as well as a current or former family member of that relative,
  • (C) a relative of the family member of the sponsor, or a current or former family member of that relative,
  • (D) a current or former conjugal partner of the sponsor,
  • (E) a current or former family member of a family member or conjugal partner of the sponsor,
  • (F) a relative of the conjugal partner of the sponsor, or a current or former family member of that relative,
  • (G) a child under the current or former care and control of the sponsor, their current or former family member or conjugal partner,
  • (H) a child under the current or former care and control of a relative of the sponsor or a current or former family member of that relative, or
  • (I) someone the sponsor is dating or has dated, whether or not they have lived together, or a family member of that person;

 3.1. Financial eligibility

If the sponsor wants to sponsor a family member, other than his or her dependent child, who does not, in turn, have a dependent child, his or her partner who has no children, or has a child who has no dependent child, as well as the persons we called “sole family members” (par. 117(1)(g) IRPR and par. 19(g) RRSFN).

3.1.1. Quebec

In Quebec, to the exception of spouses (married, common law or conjugal partners), the sponsor will have to demonstrate having sufficient funds for the twelve (12) months prior to the application and will have for the period of the sponsorship undertaking. Whether or not a sponsor has sufficient funds will depends on the family size of the sponsor, and the number of persons to be sponsored.

The Basic Annual Income is determined by the family size of the sponsor onto which an amount accounting for the Basic Needs of the Sponsored Person and his or her family members is added (see RRSFN).

3.1.2. Federal

In the rest of Canada, the sponsor shall meet the Low Income Cut off (LICO) set forth in paragraph 133(j) of the IRPR and calculated by Statistics Canada. If the sponsor wishes to sponsor his parents, his grandparents or accompanying family members of these two categories, his or her income needs to meet LICO, increased by 30%, and he will need to meet this requirement for each of the three consecutive taxations years preceding the filing of the sponsorship application.

4. Appeals

4.1. Quebec

Over financial requirements, once administrative recourses are depleted, appeals regarding refusals or cancelation of sponsorship applications in Quebec should be made to the Administrative Tribunal of Quebec. This Tribunal has no equity jurisdiction, as indicated in numerous decisions. Appeals need to be made within sixty (60) days of notification of the decision. It needs to be noted that Quebec officials can, under certain circumstances, refuse to process an application to sponsor. In such a case, the right to appeal does not exist.

In case of misrepresentation, Quebec can refuse to examine said application, in which case, an appeal is impossible.

Judicial review is possible under the conditions of section 846 of the Code of Civil Procedure within a delay of thirthy (30) days. Pursuant to a refusal on financial grounds and consequently refusal by the visa officer, the sponsor may have another chance with the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), on humanitarian considerations, based on its equity jurisdiction.

4.2. Federal

The Immigration Appeal Division of the Immigration and Refugee Board of Canada has jurisdiction in matters of refused sponsorship applications from family class members by visa officers. The appeal needs to be filed within thirty (30) days of receipt of the written reasons by the Officer. A failed Quebec sponsor on financial grounds may appeal the visa officer refusal on H&C grounds.

Appeals are not possible if the foreigner is inadmissible on grounds of security, violation of human or international rights, serious criminality or organized criminality. In case of misrepresentation, appeal is only possible if the sponsored person is a spouse, common-law partner or a child of the person who made the misrepresentation.

Judicial review before the Federal Court of Canada is possible under section 72 of the IRPA, but only with an application for leave and if any other recourse of appeal has been exhausted. The application for leave needs to be served on to the other party within fifteen (15) days, in a matter arising in Canada, or within sixty (60) days, in the case of a matter arising outside of Canada.

5. Who can be sponsored?

Under the current legislation, the following seven (7) categories of family class members can be sponsored:

1. Spouses
2. Dependent children
3. Parents
4. Grandparents
5. Orphaned (half) brothers or sisters, (half) nieces and nephews and grandchildren under the age of 18 who do not have a spouse or common law partner;
6. A child the sponsor intends to adopt;
7. Any other family member, if the sponsor does not have any of the above relatives who he could sponsor and does not have any of the aforementioned relatives with permanent status in Canada. In the rest of this presentation, we will refer to this category as “Sole Family Members”.

 5.1. Spouses

The term spouse includes not only legally married spouses, but also common law spouses and conjugal partners.

A marriage is the union of same sex or opposite sex persons  –as long as the marriage is legal in the country or state where it was solemnized, a partner will be considered a spouse.

The common-law partner of a CC or PR is the partner with whom said CC or PR has cohabitated and was in a conjugal relationship with for an uninterrupted period of one (1) year (with the exception of short absences for business or family reasons). Cohabitation, in this context, means that the partners lived under one roof and acted as a family unit, sharing their lives as married persons would.

Conjugal partners on the other hand is a category established to safeguard couples who, due to exceptional circumstances beyond their control, have not been able to cohabitate, but who have an equivalent commitment towards one another. It is a category mostly intended for same sex partners who cannot live together due to legal constraints in the country and often when a visitor’s visa to Canada has been denied to the foreigner. Hence, these partners need to proove that their relationship has lasted for at least a year, that they could not cohabitate for reasons beyond their control, and that they are mutually dependant on one another.

The spouse needs to be at least eighteen (18) years of age. Provisions are also made to ascertain that spouse and sponsor have a monogamous relationship, as well as to safeguard serial spousal sponsorship applications (a sponsor cannot sponsor a new spouse unless the previous undertaking has ended.

The law no longer recognizes marriages that were conducted abroad by proxy, telephone, fax, Internet or other similar forms, across all permanent and temporary immigration programs. An exemption is however provided for members of the Canadian Armed Forces who, due to travel restrictions related to their service, are not physically present at their marriage ceremony and registration;

Furthermore, pursuant to paragraph 4(1) IRPR, a person is not considered a spouse if the partnership or marriage is not genuine, or was entered into primarily for the purpose of acquiring a status or privilege under IRPA (see section Bad faith, INFRA).

5.2. Children

In order to be eligible for sponsorship, children have to be dependent children.

According to the regulations, a «dependent child», in respect of a parent, means a child who:

1.  has one of the following relationships with the parent, namely:
   •  is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
   •  is the adopted child of the parent; and
2.  is in one of the following situations of dependency, namely:
   • is less than 22 years of age and is not a spouse or common-law partner, or
   • is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition.

Furthermore, pursuant to paragraph 4(2) IRPR, a person is not considered an adopted child if the adoption did not create a genuine parent-child relationship or was adopted primarily for the purpose of acquiring a status or privilege under IRPA. The age of the adoption matters as well: a child needs to be adopted prior to reaching eighteen (18)  years of age to be considered as a member of the family class, unless the genuine parent-child relationship existed prior to that age.

The adoption does not need to be final however, sponsorship of a child the sponsor intents to adopt, after landing, is also possible. Under the Citizen Act, it is possible to immediately grant Canadian citizenship to an adopted child, the rules set forth here being mostly identical to what is indicated above.

6. Inadmissibility of the sponsored person

A foreign national and/or permanent resident can be inadmissible to Canada on grounds of:

1. Security (s. 34 IRPA)
2. Violations of human and international rights (s. 35 IRPA)
3. Serious criminality (s. 36 IRPA)
4. Organized criminality (s. 37 IRPA)
5. Health, i.e. if their health is likely to be a danger to public health or public safety, OR, if their health might reasonably be expected to cause excessive demand on health or social services (s. 38 IRPA)
6. Financial reasons (s. 39 IRPA). The financial undertaking will take care of this requirement.
7. Inadmissible family member (s. 42 IRPA): if a family member is inadmissible, the inadmissibility may extend, under prescribed circumstances, to all family members.
8. Misrepresentation (s. 40 IRPA). Full disclosure of all involved is needed:
   • Misrepresenting or withholding facts that were essential to the application can render the person who made the misrepresentations inadmissible. If a permanent resident is found inadmissible due to misrepresentation, he or she may be declared inadmissible to Canada for a period of 5 years.
   • If a sponsor has misrepresented facts, his sponsored family members will also be inadmissible, and this for the same period of time. During that period, the sponsored person cannot apply for permanent residence (s. 40(3) IRPA)
   • Moreover, misrepresentation can lead to charges under the act and lead to fines up to $50,000 for natural persons, in case of a first offence (s. 12.5 of the Act Respecting Immigration to Québec (ARIQ)), and misrepresentations towards the federal government can lead to convictions on indictment, punishable by a fine up to $100,000 and imprisonment for a maximum term of 5 years, or both (s. 128 IRPA).
   • Furthermore, full disclosure is particularly necessary in the light of par. 117(9)d) Immigration and Refugee Protection Regulations (hereafter: “IRPR”). If a sponsor was once himself a permanent resident, and failed to declare a family member at the time of his or her application, causing that person to not have been examined, this family member cannot be sponsored later on, because he or she will not be considered a member of the family class. See for instance, Seshaw v. Canada (Citizenship and Immigration), 2014 FCA 181.
   • Finally, in case a person provided false or misleading information or document within two years of a sponsorship application, appeal rights can be affected.

 7. Bad faith

Section 4 of the Regulations provides for two (2) «bad faith» tests.

One applicable to spouses, common-law partners and conjugal partners (4(1)) and one for adopted children (4(2)). It reads as follows:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.

4. (2) A foreign national shall not be considered an adopted child of a person if the adoption

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) did not create a genuine parent-child relationship.

4. (3) Subsection (2) does not apply to adoptions referred to in paragraph 117(1)(g) and subsections 117(2) and (4).

In section 4(2), the term «genuine» is associated with the assessment of the parent-child relationship. On the other hand, subsection 117(2)(b) adds to 4.(2)(a) in providing for an assessment of the bona fides of an adoption and requiring the assessment of whether the adoption was primarily «for the purpose of acquiring any status or privilege under the Act».

Section R117(2) reads as follows:

R117(2) A foreign national who is the adopted child of a sponsor and whose adoption took place when the child was under the age of 18 shall not be considered a member of the family class by virtue of the adoption unless

(a) the adoption was in the best interests of the child within the meaning of The Hague Convention on Adoption; and
(b) the adoption was not entered into primarily for the purpose of acquiring any status or privilege under the Act.

Consequently, one will fall in its application to sponsor a family member if either one of the two tests is not met: genuineness or acquisition of status.

8. Procedure

All sponsorship applications are dealt with in Canada. The procedure contains two parts:

1. the determination of a valid sponsorship and
2. an application for permanent residence.

The competent CIC office is in Mississauga (Ontario), as far as the sponsorship is concerned i.e. for a determination on the sponsor himself/herself. As to the foreigner, the embassy of the country of origin has competence over the PR application.

9. DNA tests and family reunification

Parliament chose to restrict all categories of family members who can be sponsored, with the obvious exception of spouses and adopted children, to those who are genetically related to the sponsor, regardless of the legal status of the family member.

As regards to children, Section 2 of the IRPR defines dependent child as either the biological child of a parent, or the adopted child of said parent:

• Dependent child, in respect of a parent, means a child who:
  • has one of the following relationships with the parent, namely:
    • (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
    • (ii) is the adopted child of the parent; and
  • is in one of the following situations of dependency, namely,
    • (i) is less than twenty two (22) years of age and is not a spouse or common-law partner, or
    • (ii) is twenty two (22) years of age or older and has depended substantially on the financial support of the parent since before the age of twenty two (22) and is unable to be financially self-supporting due to a physical or mental condition.

For other categories of family members, with the obvious exception of partners, the required biological link is not as clearly stated in the IRPR (nor is it in the Citizenship Act), but this requirement seems to have been recognized by jurisprudence and discussed in the (non-legally binding) Operational Manuals. For instance, Manual OP-1, Procedures, section 5.9 states:

«Citizenship and Immigration Canada (CIC) accepts DNA test results as proof of parent/child and sibling relationships. The test compares DNA profiles extracted from genetic material taken from persons claiming to be father, mother, children or siblings [our emphasis].»

While this legislative choice can be heavily debated, given the difficulties that can arise from this restriction and its inconsistency with Canadian family Law, the choice of the legislator has been recognized as legal by the courts.

In order to establish these biological relationships, DNA tests are obviously a reliable tool. However, DNA testing is not a general, legal requirement. Nowhere in the IRPA or IRPR is a genetic test required.

The practice of using DNA tests to establish family relations started in 1991.

9.1. Positive aspect

The practice can obviously bring relief to such families who cannot otherwise proove their relationship, by lack of the required official paperwork. Despite the clear will to limit sponsorship to biologically related family members, official and reliable documentary submissions remain the cornerstone of proof to establish bona fide family relations, and DNA testing is, at least on paper, stated as being a last resort.

Numerous reasons can cause families to lack the type of documents to establish their relation: military crisis, lost or unobtainable records, etc.

9.2. Negative aspects

However, they can also be an unexpected hurdle, either when the results are not expected or simply because such testing is a high financial burden.

Indeed, the financial burden to undergo DNA testing falls entirely upon the family. In order to ascertain the reliability of the tests, they can only be done in approved laboratories. Furthermore, the taking of the samples needs to be done fool-proof. The identification of the person or laboratories where these samples can be taken are decided by the local Immigration medical officers.

Obviously, the sample taking can take some time, the fool-proof kit used for these tests might not be available at the local Immigration office, and the family might need to travel, which imposes further costs. Furthermore, the delivery of the samples to the lab ideally should be within seven (7) days of the sample collection, which means the family, who is responsible for the courier services, will need to pay for such expedited international shipping. As well, the actual processing of the sample will take extra time, adding to already lengthy sponsorship delays.

In May 2013, CIC undertook a Pilot Project in India, to allow the Panel Physicians, the doctors authorized to conduct immigration medical examinations for CIC in Canada or abroad, to collect and assess DNA samples. The project was extended until March 31, 2014.

9.3. When is DNA testing required?

As stated above, DNA sampling should be used as a last resort. This also appears clearly from jurisprudence: DNA testing is considered to be intrusive. Since DNA tests are not currently a requirement under the law, they cannot be imposed upon applicants, a reality which is clearly reflected in the Operational Manual.

In practice however, there is no way to ascertain how often DNA testing is requested. Moreover, although DNA testing is not a formal requirement, in practice, jurisprudence shows clearly how, in some cases, the testing is de facto imposed. For instance, in Martinez-Brito, the officer treated the testing as the only option available and the family went ahead with the request, hence unknowingly providing proof that the presumed son wasn’t biologically related.

In cases where such a demand is made, procedural fairness might be violated, if other documentary evidence of the relationship is available. This approach (violation of procedural fairness) has ultimately been proven to be the only way to contest DNA results, or a negative or delayed decision based on the unwillingness to undergo DNA testing.

Indeed, an officer can only suggest DNA testing, and this request as such can only be made when there are sufficient reasons to believe that documentary evidence does not reflect/confirm the biological relationship needed. In order to allow applicants to negate these reasons, they should, out of concern of procedural fairness, be sufficiently explained.

When this is not the case, appeals are possible. Before going into these appeal possibilities however, it is noteworthy that, while it might be counterintuitive to think that DNA testing cannot be used when the sponsoring concerns a partner, DNA testing has been used in some of these cases as well, in order to refute doubts regarding the truthful nature of the partner relationship or the truthfulness of prior immigration declarations.

To give an example, in Muhammad vs. Canada, a permanent resident wanted to sponsor the wife he married after becoming a permanent resident, as well as her two dependent children. The officer received information from a non-divulged source, pretending that the children were the sponsor’s biological children, whom he had not included in his application, and demanded a DNA test to refute these doubts.

Also, in Aisikaer vs. Canada, a DNA test of a third wife of a permanent resident was requested to proove her identity. Although the decision does not clearly state why such a test was requested, the case concerned the removal of a person who had achieved PR through marriage, presumably under false pretences, and it seems the third wife was either suspected to be his first, or the PR was suspected to have married the third wife for the sole purpose to allow her to immigrate to Canada.

 9.4. Other avenues in case of an unsuccessful sponsorship application.

As explained previously, under section 24 of IRPA, residency applications can be made on humanitarian and compassionate grounds, to allow ineligible family members to immigrate to Canada. This section allows the government to issue a temporary resident permit to an otherwise inadmissible person, as it allows for certain criteria to be waived.

For instance, if a person was not declared in a permanent residence application, and is rendered inadmissible under 117(9)(d), as explained above, the explanation of this omission, combined with other considerations, such as the best interest of the child, could bring relief of consolation.

The same goes for dependent de facto members of a nuclear family, such as a child who is not a biological child and cannot be legally adopted, for instance because adoption does not exist in the country of origin of the parents

However, these are exceptional discretionary measures and can be revoked at all times. If obtained, they do however allow the holder to apply for study and work permits, and allow access to health care. After a certain lapse of time, the holder can also apply for permanent residence, unless he or she has become inadmissible for another reason.

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Notes

As of November 2014, CIC (Citizenship and Immigration Canada) changed name and is now IRCC (Immigration, Refugees and Citizenship Canada).

References

Joly, Y., Salman, S., Ngueng Feze, I. et al. Int. Migration & Integration (2017) 18: 391. https://doi.org/10.1007/s12134-016-0496-7

https://link.springer.com/article/10.1007/s12134-016-0496-7