Written by Michael Battista, Founding Counsel of Battista Migration Law Group and Adjunct Professor at the University of Toronto’s Faculty of Law.
Life’s sudden changes do not yield to our dreams.
Between the excitement of completing immigration forms and the relief of being granted permanent residence, life continues, mostly out of our control. Processing times for immigration applications lengthen, illnesses develop, jobs end, and family members die.
A recent victory in our office led us to think comprehensively about the infrequent but serious circumstances involving the death of a family member who is part of an immigration process. In which circumstances is the application jeopardized, and what are the remedies?
The specific case in our office involved the sponsorship of a mother by our Canadian client. The Canadian sponsor’s brother was included as a dependent child on the mother’s permanent residence application. The brother was 39 years old, but he was included in the application as a dependent child because his disabilities (autism and neurological conditions) made him dependent on his mother.
Tragically, the sponsor’s mother died of COVID during the pandemic. This left the brother alone and vulnerable in an African country with minimal resources to support him.
Thankfully, our office was able to convert his application into an overseas humanitarian and compassionate application, and the sponsor and her brother are now reunited and living in Ottawa.
Here is a summary of situations in which a family member dies, along with the potential courses of action:
WHAT HAPPENS WHEN A PRINCIPAL APPLICANT DIES?
A principal applicant is the lead or primary person in a family who initiates the immigration application. A principal applicant’s qualifications for permanent residence in any category lead to the eligibility of family members for permanent residence. Family members are dependent on the principal applicant.
Therefore, the death of a principal applicant significantly jeopardizes an immigration application. If no action is taken, the application will be rejected without further consideration.
How can an application for permanent residence for a dependent family member be saved when the principal applicant dies? One remedy is to request that the application of the dependent family member proceed for consideration on humanitarian and compassionate grounds. Section 25 of the Immigration and Refugee Protection Act enables such applications to be made if the applicant doesn’t otherwise meet qualifying criteria under the Act or Regulations.
Dependent family members of principal applicants who die usually don’t independently meet the criteria to be processed for permanent residence. That is why they are described as “dependents” of the principal applicant.
A request for processing on humanitarian and compassionate grounds for dependents of deceased principal applicants should be made as soon as possible, prior to the refusal of the principal applicant’s application. The basis of the request can be anything from difficulties faced by the dependents in their home country, connections to Canadian family, the best interests of children or establishment in Canada.
Made promptly, the request for humanitarian and compassionate processing should be considered thoroughly by an officer.
In the case of Addae v. Canada (Minister of Citizenship and Immigration) 2022 FC 375, the Federal Court seemed to imply that an officer was not obligated to consider the humanitarian and compassionate request by children of a deceased principal applicant. However, in that case the children were listed in the original application as “non-accompanying dependents” and in fact the Court eventually determined that the officer did not deal fully with the request for humanitarian and compassionate processing.
Section 25 of IRPA does in fact grant broad discretion to make humanitarian and compassionate requests in circumstances where applicants do not meet eligibility criteria, and such requests should be fully considered.
WHAT HAPPENS WHEN A SPONSOR DIES?
A family class application for permanent residence requires a Canadian or permanent resident sponsor. The very definition of a member of the family class is that they must have a specific relationship with a sponsor. These relationships are described in Regulation 117.
The death of a family class sponsor will therefore result in a refusal of the application, unless further action is taken. That further action can be a request for the processing of the application on humanitarian and compassionate grounds pursuant to s. 25 of IRPA.
In fact, the family class immigration application forms specifically contemplate the processing of requests on humanitarian grounds. The first question on Form 1344 (Application to Sponsor and Undertaking) is:
If you are found ineligible to sponsor, indicate whether you want to:
By choosing the second option (proceeding with the application for permanent residence), the right to consideration on humanitarian and compassionate grounds is preserved. Sponsors should, as a matter of course, select this option if they wish to preserve the ability for humanitarian and compassionate processing in the event of sponsor ineligibility or death.
It should be noted that if the application is eventually refused on humanitarian and compassionate grounds, there will be no right of appeal to the Immigration Appeal Division (IAD). This is because appeals before the IAD require a sponsor as an appellant: section 63 of IRPA. In these cases, a challenge to the decision may occur through an application for judicial review in the Federal Court.
WHAT HAPPENS WHEN A DEPENDENT FAMILY MEMBER DIES?
This is generally the least risky situation. If a death relates to a dependent family member on an application, the application generally not be jeopardized. The only situation in which an application will be jeopardized by the death of a dependent family member is in the case of economic applications in which the qualities of the dependent spouse/partner (for example, their language fluency or education) will decrease the points acquired by the principal applicant to such an extent that the principal applicant will no longer qualify.