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Legal
Thought Leadership
Legal
#778247
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Canadian Immigration Lawyers Association
Job Description
The Exclusion of Non-Accompanying Spouses Under Canadian Immigration Law
Authored by Amit Vinayak, and Charu Vinayak, Canadian Immigration Lawyers, Amit Vinayak Law Office.
Canadian immigration law mandates that individuals applying for permanent residence must declare all family members, including spouses, even if those family members do not intend to accompany the principal applicant to Canada. This requirement ensures that immigration officials possess comprehensive information to assess the permanent residence application and confirm that these family members would not render the principal applicant ineligible or inadmissible. Failure to declare and have a non-accompanying spouse examined at the time of the principal applicant’s permanent residence application typically results in a lifetime bar on sponsoring that family member.
This exclusion is codified in paragraphs 117(9)(d) and 125(1)(d) of the Immigration and Refugee Protection Regulations (IRPR), which aim to promote full disclosure, enhance the integrity of Family Class immigration, and safeguard the health, safety, and security of Canadians.
Legal Framework: IRPR 117(9)(d)
Paragraph 117(9)(d) of the IRPR stipulates that a foreign national cannot be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously applied for and obtained permanent residence, and at that time, the foreign national was a non-accompanying family member who was not examined. This provision applies equally to the Spouse or Common-Law Partner in Canada class under paragraph 125(1)(d). The period “at the time of that application” encompasses the entire duration from the submission of the application until the sponsor acquires permanent resident status.
The rationale behind this provision is threefold. First, it promotes transparency and integrity in the immigration process by requiring full disclosure of all family members. Second, it protects the Canadian immigration system from abuse by ensuring that all family members are properly assessed. Third, it safeguards the health, safety, and security of Canadians by ensuring that all individuals seeking to enter Canada are properly examined.
Strict Application and Irrelevance of Reason for Non-Disclosure
The application of IRPR 117(9)(d) is consistently strict, with courts and tribunals emphasizing that the reason for non-disclosure is entirely irrelevant to the analysis. What matters is the absence of examination by an officer, which is a direct consequence of non-disclosure. The regulations make no distinction regarding the motivation behind the failure to declare a non-accompanying spouse; whether the omission was deliberate or inadvertent, the legal consequence remains the same.
In Shamas v Canada (Citizenship and Immigration), 2019 CanLII 129263 (CA IRB), the Immigration Appeal Division (IAD) found the appellant’s explanation for failing to declare his spouse entirely irrelevant, concluding that the spouse was excluded under paragraph 117(9)(d) because she was not disclosed or examined. The panel emphasized that the motivation for non-disclosure is immaterial; what is determinative is the fact that the non-accompanying spouse was not examined by an officer during the relevant period.
Similarly, in Ogoanah v Canada (Citizenship and Immigration), 2019 CanLII 132819 (CA IRB), the Tribunal found that the applicant was excluded because the appellant did not declare her as his common-law partner during his permanent residence application process. There was no evidence that an officer had excused her from examination, and accordingly, the exclusion under paragraph 117(9)(d) was upheld. The Tribunal reinforced the principle that the absence of an officer’s determination excusing the family member from examination is fatal to any subsequent sponsorship application.
In Chimi v Canada (Citizenship and Immigration), 2024 CanLII 138051 (CA IRB), the IAD again confirmed that the sponsorship application was refused because the spouse was not declared or examined during the principal applicant’s immigration process. The panel reiterated that the IAD lacks the authority to consider humanitarian and compassionate grounds when a sponsored person is excluded from the family class by operation of paragraph 117(9)(d), further underscoring the severity and finality of this exclusion.
Most recently, in Singh v Canada (Citizenship and Immigration), 2025 CanLII 28422 (CA IRB), the IAD reaffirmed these principles, confirming that the period “at the time of that application” encompasses the entire duration from submission to the grant of permanent residence, and that neither the IAD nor any other tribunal has jurisdiction to apply humanitarian and compassionate considerations to override the exclusion.
Narrow Statutory Exception
A narrow exception to paragraph 117(9)(d) exists under subsection 117(10) of the I
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Authored by Amit Vinayak, and Charu Vinayak, Canadian Immigration Lawyers, Amit Vinayak Law Office.
Canadian immigration law mandates that individuals applying for permanent residence must declare all family members, including spouses, even if those family members do not intend to accompany the principal applicant to Canada. This requirement ensures that immigration officials possess comprehensive information to assess the permanent residence application and confirm that these family members would not render the principal applicant ineligible or inadmissible. Failure to declare and have a non-accompanying spouse examined at the time of the principal applicant’s permanent residence application typically results in a lifetime bar on sponsoring that family member.
This exclusion is codified in paragraphs 117(9)(d) and 125(1)(d) of the Immigration and Refugee Protection Regulations (IRPR), which aim to promote full disclosure, enhance the integrity of Family Class immigration, and safeguard the health, safety, and security of Canadians.
Legal Framework: IRPR 117(9)(d)
Paragraph 117(9)(d) of the IRPR stipulates that a foreign national cannot be considered a member of the family class by virtue of their relationship to a sponsor if the sponsor previously applied for and obtained permanent residence, and at that time, the foreign national was a non-accompanying family member who was not examined. This provision applies equally to the Spouse or Common-Law Partner in Canada class under paragraph 125(1)(d). The period “at the time of that application” encompasses the entire duration from the submission of the application until the sponsor acquires permanent resident status.
The rationale behind this provision is threefold. First, it promotes transparency and integrity in the immigration process by requiring full disclosure of all family members. Second, it protects the Canadian immigration system from abuse by ensuring that all family members are properly assessed. Third, it safeguards the health, safety, and security of Canadians by ensuring that all individuals seeking to enter Canada are properly examined.
Strict Application and Irrelevance of Reason for Non-Disclosure
The application of IRPR 117(9)(d) is consistently strict, with courts and tribunals emphasizing that the reason for non-disclosure is entirely irrelevant to the analysis. What matters is the absence of examination by an officer, which is a direct consequence of non-disclosure. The regulations make no distinction regarding the motivation behind the failure to declare a non-accompanying spouse; whether the omission was deliberate or inadvertent, the legal consequence remains the same.
In Shamas v Canada (Citizenship and Immigration), 2019 CanLII 129263 (CA IRB), the Immigration Appeal Division (IAD) found the appellant’s explanation for failing to declare his spouse entirely irrelevant, concluding that the spouse was excluded under paragraph 117(9)(d) because she was not disclosed or examined. The panel emphasized that the motivation for non-disclosure is immaterial; what is determinative is the fact that the non-accompanying spouse was not examined by an officer during the relevant period.
Similarly, in Ogoanah v Canada (Citizenship and Immigration), 2019 CanLII 132819 (CA IRB), the Tribunal found that the applicant was excluded because the appellant did not declare her as his common-law partner during his permanent residence application process. There was no evidence that an officer had excused her from examination, and accordingly, the exclusion under paragraph 117(9)(d) was upheld. The Tribunal reinforced the principle that the absence of an officer’s determination excusing the family member from examination is fatal to any subsequent sponsorship application.
In Chimi v Canada (Citizenship and Immigration), 2024 CanLII 138051 (CA IRB), the IAD again confirmed that the sponsorship application was refused because the spouse was not declared or examined during the principal applicant’s immigration process. The panel reiterated that the IAD lacks the authority to consider humanitarian and compassionate grounds when a sponsored person is excluded from the family class by operation of paragraph 117(9)(d), further underscoring the severity and finality of this exclusion.
Most recently, in Singh v Canada (Citizenship and Immigration), 2025 CanLII 28422 (CA IRB), the IAD reaffirmed these principles, confirming that the period “at the time of that application” encompasses the entire duration from submission to the grant of permanent residence, and that neither the IAD nor any other tribunal has jurisdiction to apply humanitarian and compassionate considerations to override the exclusion.
Narrow Statutory Exception
A narrow exception to paragraph 117(9)(d) exists under subsection 117(10) of the I
Report this listing
