Filipiniana News - July
2018
Only the most
hardened of hearts will not be moved by video footage and photos of
children separated from their parents in
the aftermath of the United States' zero tolerance immigration policy.
While we
express concern over, or join protests against, this heartbreaking news from
south of our border, we must not forget that Canada has its own similar issues,
albeit committed in subtler, but not necessarily more justifiable ways.
Since one of the main objectives of
Canada's immigration policy is to reunite families, priority is supposedly given to family class
sponsorships and the automatic inclusion of spouses and dependent children in
most permanent residence applications.
Sadly however, this objective is often thwarted in ways that many people
may not even realize.
Rigid Application of Age Limit for
Dependent Children
The
age limit for dependent children in
Canadian immigration law had undergone changes a number of times. At present, the definition of dependents
covers children who are below 22 years old, unmarried and not in a common-law
relationship. Although this is perhaps
an acceptable cut-off age in Western cultural settings, this is often not the
case in other, more conservative and close-knit family settings, particularly
from countries where Canada sources many of its immigrants.
In the Philippines for instance, it is not
unusual for children to continue to depend on their parents long after reaching
22 years old or even after having gotten married or their own children. Children can therefore be considered
dependents of their parents long after they reach 22 years old. Thus, the present legal definition of
dependent children in Canada's immigration policy does not necessarily meet the
family reunification objectives of the very immigrants it wishes to
attract.
Parent-Grandparent Sponsorship Lottery
For the longest time, the processing time
for sponsoring elderly parents and grandparents in Canada was taking a
ridiculously long 5 to 10 years. In an
attempt to reduce lengthy processing times, the government not only imposed a
quota on the annual intake of parent-grandparent sponsorship applications, it
also introduced a lottery system whereby prospective sponsors are picked at
random before they are allowed to submit applications to sponsor their parents
and/or grandparents.
Hence, many prospective sponsors are forced
to wait year after year to be picked in
this lottery system. Meanwhile,
their parents and grandparents are advancing in age and may become too old to
migrate to Canada, or worse, become medically inadmissible if they will be
found to have a medical condition that will impose an excessive demand on
Canadian health and social services.
Unjust Consequences of Regulation
117(9)d
The controversial section 117(9)d of the Immigration
and Refugee Protection Regulations is another beast that continues to rear
its ugly head when it should have been slain a long time ago.
This section provides that family members
who were not disclosed and/or examined when the sponsor became a permanent
resident of Canada cannot anymore be sponsored under the family class. Often, those caught by this regulation have
failed to disclose a family member inadvertently or for reasons that were
beyond their control. Although the
legal option of seeking an exemption from this regulation on humanitarian and
compassionate grounds is available, the highly discretionary nature of this
remedy is often not the most desirable due to cost, delays and a high risk of
refusal.
Therefore, regulation 117(9)d has led and continues to lead to permanent
family separation for families, including dependent children and spouses.
Marriage Fraud Crackdown Prejudicing
Genuine Spouses
Despite government warnings and stricter
scrutiny of spousal sponsorship applications, sponsorship fraud still
persists. Meanwhile, there are couples
in genuine, committed and loving relationships who are forced to endure
prolonged family separation due to lengthy processing delays of their
sponsorship applications. This can be
partly due to the immigration officers’ sometimes overzealous attempts at
disputing the genuineness of marital/common law/conjugal relationships. For instance, in highly-intimidating
immigration interviews, visa officers rarely consider the fact that “failure”
in such interviews can often be attributed to language barriers, nervousness or
even cultural differences or misunderstandings.
We understand the immigration officers'
reasonable efforts to prevent abuse of the spousal sponsorship process since
there are truly those who try to use this as a way to circumvent Canada's
immigration requirements. However, these
efforts must be balanced by a healthy dose of empathy for couples who are
applying in good faith. There also
needs to be adequate training of immigration officers to equip them with a
better understanding of cultural differences and personality types that will
avoid a one-size-fits-all standard for assessing the genuineness of
marital/common-law/conjugal relationships.
Caregivers in the LCP Backlog
Lengthy delays in achieving family
reunification is a perennial complaint among live-in caregivers and their
families. A huge part of the reason is
that those who enter Canada under the Live-in Caregiver Program (LCP) are
initially granted work permits and are not allowed to bring their families at
the outset. It is only after having
satisfied the requirements of the LCP
(i.e. two years of full time live-in caregiving work within four years
of arrival) will they qualify to apply for permanent residence for themselves
and their families, which could easily take several more years to be
processed. Thus, even long after the LCP
had been repealed and many failed promises to expedite processing, there are
still thousands of caregivers whose permanent residence applications are
languishing in the current immigration backlog.
These are just some examples of situations
when serious family reunification issues arise in the Canadian immigration
context. So even as we feel sorry for
the victims of the cruel immigration antics of our neighbor, we might do well
to also be concerned about similar injustices occurring in our very own
backyard.
The author is a Canadian immigration
lawyer and may be reached at deanna@santoslaw.ca.
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