Husband landed without medical for dependent child

[tartecerise]

Hello - I'm a Canadian citizen who sponsored my husband ( Australian)  about 10 years ago to become a permanent resident. He's now a Canadian citizen .

I don't know how we missed it, but although we declared that he had a dependent child (mother had full custody in the UK) we didn't realize that the 5 year old who was not living with him when he landed also needed to get a medical.

Two years ago the child ( who's now 13 yrs) came to live with us in Canada and we started the process to sponsor him. Two weeks ago we received a letter from the Buffalo Visa office asking us to bring in his passport with 3 photos to get the permanent residence visa.

A few days later we received a letter from the same office from an immigration officier who said because my husband " did not declare the presence of other dependents, for the purpose of immigration", on his landing record, his child was now excluded from applying for immigration in the family class.

When I looked at the CIC web site I finally see that without a medical for the child when I sponsored my husband so long ago we may forever be banned from sponsoring his son. It doesn't say that in the letter but it says the "onus is on you ( my husband)" to satisfy the immigration officer that a visa can be issued to his son.

After being approved for sponsorship and getting the letter from Buffalo indicating the process is complete we don't understand why this other letter has arrived now. It took so long to get to this point that my step-son has already had to have 2 medicals ( he's in excellent health). 

Is it really possible that my husband will never be able to sponsor his own son?! Can I sponsor my step-son ( now 15?). Can my husband renounce his citizenship and start the whole process over again. Should we just go to Buffalo with the letter indicating the process is complete and take our chances?

We aren't sure how to proceed. Any suggestions would be extremely welcome.

[tartecerise]

I wanted to add that the sponsorship of my husband begin in 1999 and the form we filled out at that time asked us to indicate if he had any children. He answered yes and gave name and date of birth. He did not have to indicate in anyway that he didn't want his child included in an assessment of his application nor did it say anything about getting a medical for his 5 year old son who was living in the UK with his mother at the time.

The dreaded regulation 117(9) d - which I've learned about today- and which is quoted in the letter we rec'd from the immigration officer, did not come into effect until 2002. Does that make a difference?

[err88]

Hi there, I have not yet applied for my residency but am worried about exactly the same thing. My father received his PR in 2002. He put me on his application at the time, but as this was in 2001 it was before this regulation, and neither me not my siblings had medicals. My brother applied just after my father as a seperate application and he was accepted, however now everyone is saying I will be refused, and after reading your post this has worried me also. But the law was not in place at the time of his application!! Anyway, I hope you got it all sorted out, please let me know what happened

[Karlshammar]

If he was indeed declared and this was before the medical requirement took effect, I think you have an excellent case. I'd recommend a good immigration lawyer, though.

I wanted to add that the sponsorship of my husband begin in 1999 and the form we filled out at that time asked us to indicate if he had any children. He answered yes and gave name and date of birth. He did not have to indicate in anyway that he didn't want his child included in an assessment of his application nor did it say anything about getting a medical for his 5 year old son who was living in the UK with his mother at the time.

The dreaded regulation 117(9) d - which I've learned about today- and which is quoted in the letter we rec'd from the immigration officer, did not come into effect until 2002. Does that make a difference?

[PMM]

Hi

If he was indeed declared and this was before the medical requirement took effect, I think you have an excellent case. I'd recommend a good immigration lawyer, though.

Child was not examined, therefor R117(9)(d)

"(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

PMM

[Karlshammar]

PMM, are you sure that this applies even when the landing happened before this came into force? I strongly doubt it.

Hi

Child was not examined, therefor R117(9)(d)

"(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

PMM

[PMM]

Hi

PMM, are you sure that this applies even when the landing happened before this came into force? I strongly doubt it.

Read the links in my post here: http://www.canadavisa.com/canada-immigration-discussion-board/family-class-application-very-confused-any-help-t30527.15.html 

From OP 2

Dependent child in the custody of a former spouse

In some cases where a child was in the custody of the other parent, the applicant may have been advised, pursuant to R6(5) of the Immigration Regulations, 1978 and per R23 of the current
Regulations, that the child did not have to be examined because of the custody situation. In this situation, the decision whether or not to have a child examined is definitely the applicant's
decision.

You may wish to read http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf starting at 5.12.  A sponsor can put for Humanitarian an Compassionate Grounds for a minor and that may be accepted.

PMM

[Siouxie]

Medicals were not required pre 2002 for non accompanying children.  You can still sponsor her.

http://www.cba.org/cba/cle/pdf/Rubinoff2.pdf

Excluded relationships (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if ... (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

Exception (10) Subject to subsection (11), paragraph (9)(d) does not apply in respect of a foreign national referred to in that paragraph who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.

Paragraph 117(9)(d) excludes from the family class a foreign national where the foreign national was a non-accompanying family member of the sponsor (spouse, common-law partner8 or dependent child and dependent grandchild)9 and was not examined when the sponsor obtained their landing as a permanent resident.

Subsection 117(10) provides an exception to the application of paragraph 117(9)(d), as paragraph 117(9)(d) will not apply to a sponsored foreign national “who was not examined because an officer determined that they were not required by the Act or the former Act, as applicable, to be examined.”

Transitional rules come into force:

http://laws.justice.gc.ca/eng/SOR-2002-227/page-1.html  sections 351-355


Requirements not applicable

354. If a person makes an application before the day on which this section comes into force, their non-accompanying dependent children, referred to in section 352, and their non-accompanying common-law partner shall not, for the purposes of that application, be considered inadmissible non-accompanying family members, referred to in paragraph 42(a) of the Immigration and Refugee Protection Act, and are not subject to the requirements of paragraph 30(1)(a) or 51(b).

Family members not excluded from family class

355. If a person who made an application under the former Act before June 28, 2002 sponsors a non-accompanying dependent child, referred to in section 352, who makes an application as a member of the family class or the spouse or common-law partner in Canada class, or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.

[Leon]

Get a lawyer and appeal this.  If you can't appeal on the grounds that he was not required to have him examined under the previous rules (if that was the case), then appeal on H&C grounds.  No guarantees, might take a long time but definitely worth a shot.

[ariell]

I agree. Get yourself a good lawyer and appeal this. I think you have a good chance.

[mrsJDL]

hi there everyone,

tartecerise's post was july 21, 2009. have you heard anything from her since? she was not replying to people's posts and suggestions either.

i hope she is well.