Hello and welcome to the Paolucci Law blog. My name is Melissa Elizabeth Eberly and I am a lawyer with Paolucci Law. I am an immigration lawyer by training with over five years of experience with helping clients with their immigration journey to Canada. I have helped my clients come to Canada temporarily as visitors, students or workers, or permanently as permanent residents or Canadian citizens, and just about everything in between. I am delighted to join Paolucci Law where I will continue my immigration practice in addition to expanding my scope of practice to include family law as well. Myself and my colleagues will be periodically publishing blogs on immigration and family law-related topics that we hope will help you with navigating these complex systems, but do not constitute legal advice.
Today I would like to tell you about a pilot program that Immigration, Refugees and Citizenship Canada has recently extended. On October 30, 2023, IRCC announced that it would continue to exempt certain permanent resident applicants under the Family Class or the Spouse or Common-law Partner in Canada (SCLPC) Class from certain exclusions that would ordinarily apply. Let me explain.
Difference Between “Accompanying” and “Non-Accompanying”
When someone applies for permanent residence in Canada, they are usually applying not only for themselves alone (the principal applicant), but also for their “family”, which typically includes any spouse or common-law partner and/or dependent children. If the principal applicant’s family is immigrating to Canada with the principal applicant, meaning that they will also become permanent residents through the application, they are called “accompanying”. If the principal applicant’s family is not coming to Canada with the principal applicant, meaning that they will not become permanent residents through the application, they are called “non-accompanying”.
Requirement for All Family to be Declared and Examined
In both cases, whether the principal applicant’s family is accompanying or not, their family must be “declared” in the application, and “examined”. What must be “declared” depends on the particular circumstances of the application, the applicant and their family. However, this typically means that any spouse or common-law partners and/or dependent children, as the case may be, must be disclosed in the application, in addition to providing all required information, forms and documents. The “examination” that each family member is required to complete also depends on the particular circumstances of the case, but typically means completing a medical exam and providing police certificates.
If the principal applicant did not declare their family member in their own application for permanent residence and the family member was not examined, then the principal applicant cannot sponsor that family member for permanent residence in the future. This is called an “exclusion”. This exclusion is outlined under paragraphs 117(9)(d) and 125(1)(d) of the Immigration and Refugee Protection Regulations with respect to the Family Class and the SCLPC Class respectively. These exclusion state that an applicant is not a member of the Family Class / SCLPC Class and cannot be sponsored by the sponsor if:
the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of application, the individual was a non-accompanying family member of the sponsor and was not examined.
Extension of the Pilot Program
The “Pilot program to exempt permanent residence applicants in the family class or the spouse or common-law partner in Canada (SCLPC) class from paragraph R117(9)(d) or R125(1)(d) exclusion” was announced on May 31, 2019 and was originally planned to be in effect for two years starting on September 9, 2021, but has now been extended until September 10, 2026. The pilot program applies a public policy to some Family class or SPCLC class applications in process as of May 31, 2019, received between May 31, 2019 and September 10, 2026 and applications pending reconsideration between May 31, 2019 and September 10, 2026.
Eligibility under the Public Policy
The public policy exempts some Family or SPCLC class applicants from the exclusion discussed above. This means that even if the family member was an undeclared and unexamined non-accompanying family member to their sponsor’s own application for permanent residence, if the public policy applies, the family member can still be sponsored. However, IRCC requires that the family member meet certain eligibility criteria before the public policy applies:
The family member must be applying for permanent residence as a spouse or common-law partner under the SPCLC class or as a spouse or common-law partner, conjugal partner or a dependent child under the Family class;
The sponsor must have become a permanent resident as a resettled refugee, protected person, as a spouse or common-law partner under the SPCLC class or as a spouse or common-law partner, conjugal partner or a dependent child under the Family class;
The family member must not have made the sponsor ineligible for permanent residence If the family member had been declared and examined in the sponsor’s own application.
As you can see, these eligibility criteria exclude a lot of family members from the benefit of this public policy and this pilot program. For example, if the sponsor became a permanent resident through any of the economic programs, like the Canadian Experience Class, then they do not meet the eligibility criteria for the public policy and cannot benefit from this pilot program.
As another example, let’s say that the sponsor immigrated to Canada under the Family class under the sponsorship of their parent as a dependent child. The definition of a “dependent child” typically requires that the individual not have a spouse or common-law partner. If the sponsor had a spouse or common-law partner when they were sponsored by their parent, then they would no longer meet the definition of a “dependent child” and would no longer be eligible to be sponsored. Since the sponsor’s common-law relationship would have made them ineligible to be sponsored by their parent, this public policy wouldn’t apply to them.
It can be challenging to determine when policies like this one may apply, and what to do if it doesn’t. If you have any questions, you should consider speaking with an immigration lawyer and I would be happy to speak with you.
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