Authored by Amit Vinayak, and Charu Vinayak, Canadian Immigration Lawyers, Amit Vinayak Law Office.
Canadian immigration law mandates that individuals applying for permanent residence must declare all family members, including spouses, even if those family members do not intend to accompany the principal applicant to Canada. This requirement ensures that immigration officials possess comprehensive information to assess the permanent residence application and confirm that these family members would not render the principal applicant ineligible or inadmissible. Failure to declare and have a non-accompanying spouse examined at the time of the principal applicant’s permanent residence application typically results in a lifetime bar on sponsoring that family member. This exclusion is codified in paragraphs 117(9)(d) and 125(1)(d) of the Immigration and Refugee Protection Regulations (IRPR), which aim to promote full disclosure, enhance the integrity of Family Class immigration, and safeguard the health, safety, and security of Canadians.
Legal Framework: IRPR 117(9)(d)
Paragraph 117(9)(d) of the IRPR stipulates that a foreign national cannot be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously applied for and obtained permanent residence, and at that time, the foreign national was a non-accompanying family member who was not examined. This provision applies equally to the Spouse or Common-Law Partner in Canada class under paragraph 125(1)(d). The period “at the time of that application” encompasses the entire duration from the submission of the application until the sponsor acquires permanent resident status.
The rationale behind this provision is threefold. First, it promotes transparency and integrity in the immigration process by requiring full disclosure of all family members. Second, it protects the Canadian immigration system from abuse by ensuring that all family members are properly assessed. Third, it safeguards the health, safety, and security of Canadians by ensuring that all individuals seeking to enter Canada are properly examined.
Strict Application and Irrelevance of Reason for Non-Disclosure
The application of IRPR 117(9)(d) is consistently strict, with courts and tribunals emphasizing that the reason for non-disclosure is entirely irrelevant to the analysis. What matters is the absence of examination by an officer, which is a direct consequence of non-disclosure. The regulations make no distinction regarding the motivation behind the failure to declare a non-accompanying spouse; whether the omission was deliberate or inadvertent, the legal consequence remains the same.
In Shamas v Canada (Citizenship and Immigration), 2019 CanLII 129263 (CA IRB), the Immigration Appeal Division (IAD) found the appellant’s explanation for failing to declare his spouse entirely irrelevant, concluding that the spouse was excluded under paragraph 117(9)(d) because she was not disclosed or examined. The panel emphasized that the motivation for non-disclosure is immaterial; what is determinative is the fact that the non-accompanying spouse was not examined by an officer during the relevant period.
Similarly, in Ogoanah v Canada (Citizenship and Immigration), 2019 CanLII 132819 (CA IRB), the Tribunal found that the applicant was excluded because the appellant did not declare her as his common-law partner during his permanent residence application process. There was no evidence that an officer had excused her from examination, and accordingly, the exclusion under paragraph 117(9)(d) was upheld. The Tribunal reinforced the principle that the absence of an officer’s determination excusing the family member from examination is fatal to any subsequent sponsorship application.
In Chimi v Canada (Citizenship and Immigration), 2024 CanLII 138051 (CA IRB), the IAD again confirmed that the sponsorship application was refused because the spouse was not declared or examined during the principal applicant’s immigration process. The panel reiterated that the IAD lacks the authority to consider humanitarian and compassionate grounds when a sponsored person is excluded from the family class by operation of paragraph 117(9)(d), further underscoring the severity and finality of this exclusion.
Most recently, in Singh v Canada (Citizenship and Immigration), 2025 CanLII 28422 (CA IRB), the IAD reaffirmed these principles, confirming that the period “at the time of that application” encompasses the entire duration from submission to the grant of permanent residence, and that neither the IAD nor any other tribunal has jurisdiction to apply humanitarian and compassionate considerations to override the exclusion.
Narrow Statutory Exception
A narrow exception to paragraph 117(9)(d) exists under subsection 117(10) of the IRPR. This exception applies only if an officer determined, during the sponsor’s own application for permanent residence, that the non-accompanying family member was not required to be examined under the Immigration and Refugee Protection Act (IRPA) or the former Act. However, this exception is rarely applicable in practice, as there must be explicit and documented evidence that an officer made such a determination and excused the applicant from examination.
Without such evidence, the exclusion applies in its full force. In Chimi v Canada (Citizenship and Immigration), the IAD confirmed that in the absence of an officer’s determination excusing the non-accompanying spouse from examination, the exclusion under paragraph 117(9)(d) remains operative. Similarly, in Ogoanah v Canada (Citizenship and Immigration), the Tribunal found that the absence of any evidence of an officer’s determination was determinative of the exclusion.
In some instances, the exclusion may not apply if the spousal relationship did not exist at the time of the sponsor’s permanent residence application. In Baytec v Canada (Citizenship and Immigration), 2020 CanLII 113261 (CA IRB), the IAD allowed an appeal where the panel found that the appellant’s failure to add the applicant to her permanent residence application was consistent with the absence of a committed common-law relationship at the relevant time. The panel concluded that the applicant was not caught by paragraph 117(9)(d) because the relationship had not yet crystallized into a legally recognized union at the time of the sponsor’s application. This case illustrates that the exclusion is relationship-specific and temporally bounded; it applies only to relationships that existed at the time of the sponsor’s application.
Jurisdictional Limitations of the Immigration Appeal Division
A critical aspect of the legal framework governing non-accompanying spouses is the jurisdictional limitation of the IAD. The IAD does not have the authority to consider humanitarian and compassionate grounds when a sponsored person is excluded from the family class by operation of paragraph 117(9)(d). This limitation was affirmed in Shamas v Canada (Citizenship and Immigration), Chimi v Canada (Citizenship and Immigration), and Singh v Canada (Citizenship and Immigration). Furthermore, the IAD does not have jurisdiction to determine eligibility under public policy exemptions; such exemptions must be granted by a delegated Immigration, Refugees and Citizenship Canada (IRCC) officer under section 25.2 of the IRPA.
This jurisdictional limitation has significant practical implications for sponsors and their non-accompanying spouses. It means that once the exclusion under paragraph 117(9)(d) is established, the only avenue for relief is through a public policy exemption granted by a delegated IRCC officer, or through a successful judicial review of the officer’s decision by the Federal Court.
Public Policy Exemptions: A Pathway for Certain Excluded Spouses
Recognizing the potentially harsh impact of the exclusionary rules under paragraphs 117(9)(d) and 125(1)(d), IRCC has implemented consecutive public policy exemptions to facilitate the immigration of certain sponsored foreign nationals who would otherwise be permanently barred from sponsorship. The current public policy, extended for an additional three years effective September 10, 2023, applies to applications received between May 31, 2019, and September 10, 2026.
Under these public policies, previously undeclared spouses may be eligible for sponsorship if they were not declared or examined when their sponsor became a permanent resident, and the sponsor obtained permanent resident status under specific circumstances. These circumstances include sponsors who:
- Were resettled refugees or protected persons under the Convention Refugees Abroad Class or the Country of Asylum Class.
- Were sponsored as a spouse, common-law partner, conjugal partner, or dependent child under the Family Class.
- Were sponsored as a spouse or common-law partner under the Spouse or Common-Law Partner in Canada class.
It is crucial to note that these public policies do not permit the sponsorship of spouses who would have made the sponsor ineligible to immigrate to Canada under their original program. For example, if a sponsor immigrated as a sponsored spouse but was already married to the undeclared family member at that time, or came under a program requiring them to be single, the exemption would not apply. There is no special application process for this public policy; eligibility is determined during the normal sponsorship application process by a delegated IRCC officer.
Practical Implications and Conclusion
The strict application of IRPR 117(9)(d) and 125(1)(d) has profound implications for sponsors and their non-accompanying spouses. The lifetime bar on sponsorship that results from the failure to declare and have a non-accompanying spouse examined is a severe consequence that underscores the importance of full and accurate disclosure in all immigration applications. Immigration practitioners must ensure that their clients understand this obligation and its consequences before submitting any permanent residence application.
The narrow statutory exception under subsection 117(10) and the public policy exemptions provide limited relief for certain excluded spouses, but these avenues are not universally available and are subject to strict eligibility criteria. The jurisdictional limitations of the IAD further constrain the options available to sponsors and their excluded spouses, making it essential for practitioners to explore all available avenues for relief at the earliest possible stage.
In conclusion, the legal framework governing non-accompanying spouses in Canadian immigration law is complex, strict, and unforgiving. The consequences of failing to declare a non-accompanying spouse can be permanent and irreversible, making it imperative for immigration practitioners to provide thorough and accurate advice to their clients on this issue.
References
- Shamas v Canada (Citizenship and Immigration), 2019 CanLII 129263 (CA IRB): https://www.canlii.org/en/ca/irb/doc/2019/2019canlii129263/2019canlii129263.html
- Ogoanah v Canada (Citizenship and Immigration), 2019 CanLII 132819 (CA IRB): https://www.canlii.org/en/ca/irb/doc/2019/2019canlii132819/2019canlii132819.html
- Baytec v Canada (Citizenship and Immigration), 2020 CanLII 113261 (CA IRB): https://www.canlii.org/en/ca/irb/doc/2020/2020canlii113261/2020canlii113261.html
- Chimi v Canada (Citizenship and Immigration), 2024 CanLII 138051 (CA IRB): https://www.canlii.org/en/ca/irb/doc/2024/2024canlii138051/2024canlii138051.html
- Singh v Canada (Citizenship and Immigration), 2025 CanLII 28422 (CA IRB): https://www.canlii.org/en/ca/irb/doc/2025/2025canlii28422/2025canlii28422.html
- Immigration and Refugee Protection Regulations (SOR/2002-227), ss 117(9)(d), 117(10), 125(1)(d)
- Immigration and Refugee Protection Act (SC 2001, c 27), s 25.2
Disclaimer:
The content provided in this article is intended for general informational purposes only and does not constitute legal advice. Readers should not act upon any information contained herein without first seeking appropriate legal or professional counsel based on their individual circumstances. The author and the publisher disclaim any liability in connection with the use of this information.
