The Immigration and Refugee Protection Act (IRPA) gives the Minister discretion to grant an exemption of any applicable criteria or obligation of the Act or grant permanent residence, when it is justified by humanitarian and compassionate or public policy considerations.
The purpose of this discretion is to provide the Minister with the flexibility to approve deserving cases. It is not an alternative stream for immigration to Canada, nor is it an appeal mechanism. It is a discretionary tool to enhance the attainment of the objectives of the Act and to uphold Canada’s humanitarian tradition.
Purpose of these provisions
The intent of the humanitarian and compassionate provisions is to maintain program integrity and service to clients by providing structure for making requests for relief from the provisions of the IRPA and by setting out individual conditions that must be imposed on foreign nationals seeking relief under subsection 25(1) of the Act.
What the regulations do
- these regulatory provisions specify the form in which a request to the Minister can be made under subsection 25(1) of the IRPA;
- where the Minister grants exemptions from particular regulatory class requirements, these regulations introduce specific requirements to be met prior to the issuance of the permanent resident visa (for applicants outside inside Canada); and
- the provisions prescribe the conditions that must be imposed on individuals who benefit from the specified relief from requirements specified elsewhere in the Regulations.
What has changed
The IRPA provides statutory authority to impose binding conditions on foreign nationals who are granted permanent residence for reasons of public policy or humanitarian and compassionate considerations. Under the current regime, only fiancés have a condition imposed on their landing, which is to marry the sponsor 90 days after their landing in Canada.
The specific requirements that apply to foreign nationals who do not meet the requirements that apply to foreign nationals who do not meet the requirements of the regulatory class, but who benefit from discretion under subsection 25(1) of the IRPA, reflect current Departmental administrative practices related to foreign nationals in similar circumstances. These requirements include that adequate arrangements for their care and support have been made, and that the foreign national is not inadmissible under the Act. Such requirements are consistent with requirements on other foreign nationals under the IRPA and Regulations and ensure fair and equitable treatment of foreign nationals seeking permanent residence in Canada.
An alternative to regulation would be to define the application process and requirements through administrative guidelines. Although the guidelines are publicly available, placing these requirements in regulation increases transparency and creates certainty for applicants. Guidelines could compromise program integrity if the means of application were not prescribed because sponsor. Failure to so satisfy the officer that applicants meet all requisite requirements may result in a refusal of the application.
Common-law couples are required to satisfy an officer that they have been residing together in a conjugal relationship for at least one year and that their relationship has not been established for immigration purposes. Failure to satisfy the officer may result in a refusal of the application.
If after becoming a permanent resident, any person, sponsored as a member of the family class, is found to have misrepresented material fact, a report may be written and removal action may be sought.
Sponsorship default that is not resolved by a sponsor may affect future undertakings that he or she may wish to submit,
Adoption and Guardianship
Family reunification has been a long-standing objective of the immigration program and continues to be recognized as an important component of the Immigration and Refugee Protection Act. Evolving social realities and changing structure of the family have warranted changes to definition of the Family Class. This Regulatory Impact Analysis Statement (RIAS) will specifically focus on Family Class applications which are submitted as a result of an adoption or guardianship arrangement.
In addition to the existing provisions to allow the sponsorship of children who are legally adopted outside Canada and whose adoptions are to be processed, in whole or in part, through Canadian provincial courts, certain children under guardianship and children who are related to their sponsor by simple adoption have been included in this category, if they satisfy specific criteria.
Purpose of these provisions
The intent of the adoption and guardianship regulations is:
- to provide guidelines that are equitable, to the degree possible, in the consideration of adoption and adoption-like cases; and
- to promote consistency in assessing the best interests of children, maintaining Canada’s commitment as signatory to the Convention on the Protection of Children and Co-Operation in Respect of Intercountry Adoption and the United Nations Convention on the Rights of the Children.
What the regulations do
In general terms, the adoption and guardianship regulations:
- facilitate the entry of children whom Canadian citizens or permanent residents adopt abroad, whom they intend to adopt in Canada or for whom they are the legal guardians;
- protect the interests of adoptive children and children placed in care, of their birth parents and of their adoptive parents or caregivers, by incorporating specific provisions to ensure that informed decisions are being mad;
- ensure that legislation is in accord with various conventions to which Canada is a signatory; and
- ensure program integrity by denying entry to children whose adoptions do not create a parent-child relationship or whose guardianship arrangements are meant to circumvent immigration requirements.
What has changed
The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption has provided the guiding principles in developing these provisions which require that there be an assessment of the child’s best interests in the context of adoption (both full and simple) or guardianship.
The provisions specify factors to be met on all application for adoption and guardianship. These factors are that:
- the adoptive parents or guardians are to be fully informed about the child’s health status in advance of a visa being issued to the child; thereby militating against cases of abandonment which sometimes occur when parents only become aware of the child’s health problems after his/her arrival in Canada;
- a competent authority in the province to which the child is destined has conducted or approved a home study of the adoptive parents or guardians;
- the adoption or guardianship arrangement does not involve and undue gain or improper financial transaction;
- the adoption or guardianship arrangement is in accordance with the laws of the place where the adoption or guardianship took place; and
- the child is sponsored by a person who meets all applicable conditions of sponsorship.
With respect to both full and simple adoption cases, the IRP Regulations require that:
- the parents give genuine and informed consent to the adoption in advance of the child’s application;
- the adoption creates a genuine parent-child relationship; and in the case of full adoptions, the adoption terminates any pre-existing, legal parent-child relationship involving the adoptive child.
Adoptions in Canada The criteria to be met by children to be adopted by their sponsor in Canada have been brought in line with what is required for adoption and guardianship cases. Specifically, children to be adopted in Canada must meet the following requirements:
- the adoption is not primarily for the purpose of obtaining permanent residence in Canada;
- the child has been placed for adoption in their country of residence and there is no evidence that this was done for the purpose of child trafficking or undue gain; the child is not permitted to be adopted in their country of residence either by means of a simple or full adoption;
- and a competent authority of the province of intended destination has stated in writing that it does not object to the adoption.
Recognizing that, in some countries, adoption of any kind is not an option to children in need of care, the Regulations expand the Family Class to included children in guardianship relationships to Canadian citizens or permanent residents. The Regulations establish the conditions which are to be met for these children to be eligible to be sponsored by a guardian in Canada, specifically:
- the child is orphaned (both parents deceased) or is declared abandoned by a competent authority;
- the child is less than 18 years old and has never been married;
- the child resides in a country that does not allow for full or simple adoption or adoption is not available to the child;
- the competent authority in the country in which the child resides gives a documented decision to entrust the Canadian citizen or permanent resident with guardianship of the child and authorizes the child to leave the country;
- the province of destination states, in writing, that it does not oppose the guardianship and recognizes it for the purposes of provincial law;
- and the Regulations require that the guardianship was not entered into primarily for the purpose of obtaining permanent resident status in Canada.
The provision to process simple adoption cases within the Family Class demonstrates Canada’s commitment to international instruments such as the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoptions to which Canada is a signatory. The new provisions set out the conditions under which a child may be sponsored on the strength of a simple adoption. These are:
- a full adoption is not possible in the child’s country of origin;
- the competent authority of the province of the child’s intended destination agrees in writing to convert the simple adoption into a full adoption once the child is in Canada; and
- before the adoption, the child’s birth parents give genuine and informed consent to the conversion of the simple adoption to the full adoption.
A person who, as a child, was adopted outside Canada and whose adoption is subsequently revoked by a foreign authority, may only sponsor an application for landing made by a member of the family class if an immigration officer is satisfied that the revocation of the adoption was not obtained for the purpose of sponsoring the application. Information about this may be found in the Canada Gazette, Part II, SOR/93-44 published on February 10, 1993. This regulation is expanded to include a revocation order issued by a Canadian court.
As a signatory to both the Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption and the United Nations Convention on the Rights of the Child, Canada has pledged to ensure that adoptions and other child care arrangements are done in the best interests of the child. Only a regulatory framework reflecting the safeguards and child protection measures found in these agreements provides that the best interests have been properly and consistently assessed