Accompanying persons (instructions for citizenship judges)

Introduction

Who can be an accompanying person?

An accompanying person can be a friend, a relative or any other person who accompanies the citizenship applicant to provide support at the proceedings and during interactions with citizenship judges.

For example, accompanying persons may be present to provide moral support or assistance to applicants with physical disabilities.

The accompanying person should not have a citizenship application in progress.

Regulatory framework

Section 12 of the Citizenship Regulations states the following:

1. 12 (1) When an applicant appears before a citizenship judge, the judge may require the applicant to give evidence under oath.
2. 12 (2) A citizenship judge may permit an applicant to be accompanied by
   1. (a) a person who does not have a citizenship application in progress;
   2. (b) a person acting as an interpreter who is at least 18 years old and who does not have a citizenship application in progress; and
   3. (c) any other person, if their exclusion would cause the applicant undue hardship.
3. 12 (3) A person referred to in paragraph (2)(b) or a person referred to in paragraph (2)(c) who also acts as an interpreter must have sufficient knowledge of one of Canada’s official languages in order to be able to understand the judge’s instructions and questions and to communicate with the judge.

The relevant provisions for the use of accompanying persons are paragraphs R12(2)(a) and R12(2)(c).

Subsection R12(2) gives a citizenship judge the discretion to determine whether to allow an accompanying person to be present at hearings.

Also, as per paragraph R12(2)(a), the accompanying person should not have a citizenship application in progress. This provision is to prevent an accompanying person who is also applying for citizenship from becoming privy to information about the citizenship process that would give them an unfair advantage over other applicants and therefore weaken the integrity of the citizenship process.

However, in cases where the accompanying person has a citizenship application in progress, the citizenship judge may allow the accompanying person to be present at the hearing if their exclusion would cause undue hardship to the applicant.

Before the hearing

Send the Information on Accompanying Persons and Interpreters form

The Information on Accompanying Persons and Interpreters form should be sent to applicants prior to their appearance before a citizenship judge and should accompany the Notice to Appear.

This is to ensure that the applicant is well informed about who is permitted to accompany them and why the judge takes the time to assess whether the presence of the accompanying person should be granted.

At the hearing

Verification of the accompanying person and signing of appropriate forms

When an applicant brings a person to accompany them to the hearing with the judge, the following steps should take place prior to the hearing:

1. An Immigration, Refugees and Citizenship Canada (IRCC) official must ask the person whether they will be acting in the capacity of an accompanying person or an interpreter for the applicant.
2. An IRCC official will then require the accompanying person to fill out and sign the Accompanying Person Declaration and Interpreter’s Oath form, authorizing IRCC to verify information in the Global Case Management System (GCMS) on the application status of the accompanying person. An IRCC official will also ask the accompanying person for their identity document to confirm their identity.

   An Accompanying Person Declaration and Interpreter’s Oath form must be completed whenever an accompanying person is present. This form is used to provide IRCC with authorization to verify whether the accompanying person has a citizenship application in progress. The citizenship official or citizenship judge must ensure the accompanying person reads and signs the oath form. The citizenship official or judge witnesses and dates the oath. This oath becomes part of the applicant’s file.

   Note: In cases where the accompanying person has a citizenship application in progress, the citizenship judge administering the hearing will be responsible for assessing and determining whether the exclusion of the accompanying person from the hearing would cause the applicant undue hardship (see the next section, Undue Hardship, for more information).

   A minor 10 years of age or older who acts as an accompanying person must sign the Accompanying Person Declaration and Interpreter’s Oath form.

3. After the verification of information by the IRCC official, the accompanying person will bring the completed form with them to the hearing before the judge.

   Important: If an accompanying person begins translating for the applicant during the hearing, the citizenship judge should stop the proceedings and confirm whether the accompanying person will be acting as an interpreter. If the accompanying person agrees to become an interpreter, the procedures for interpreters must be followed. This step must be completed prior to the continuation of the hearing.

Cases where the accompanying person has a citizenship application in progress (undue hardship)

When to assess undue hardship

• At the hearing before a citizenship judge, the judge may permit an applicant to be accompanied by a person who does not have a citizenship application in progress.
• In cases where the accompanying person has a citizenship application in progress, the judge may permit the accompanying person’s presence at the hearing if the judge determines that the exclusion of the accompanying person would cause the applicant undue hardship.

What is undue hardship?

Paragraph R12(2)(c) provides the judge with the discretion to allow a person who does not meet the criterion in paragraph R12(2)(a) to accompany an applicant if the exclusion of that person would cause the applicant undue hardship.

Undue hardship is a difficult threshold to meet. In some cases, refusing the presence of an accompanying person at a hearing will cause hardship, inconvenience, or awkwardness to the applicant, but this does not meet the threshold of undue hardship. The hardship faced by the applicant must be excessive or disproportionate to be considered undue.

Undue hardship may differ for each individual and is determined on a case-by-case basis. It is assessed by weighing all the evidence presented by the applicant about the hardship they would face if the accompanying person were excluded from the hearing.

Factors on which an applicant might rely to show undue hardship if an accompanying person were excluded from the hearing could include, but are not limited to, the

• applicant’s health condition;
• cost and time to travel to an IRCC office for a hearing if it were rescheduled; and
• availability (or lack thereof) of another person to act as an accompanying person.

Guidelines for the assessment of undue hardship

In cases where the accompanying person has a citizenship application in progress, the following are some guidelines for the assessment of undue hardship:

• The determination of undue hardship is done on a case-by-case basis.
• The onus is on the applicant to provide all the relevant facts to support the claim of undue hardship.
• The judge should document the evidence and considerations that resulted in the applicant’s request for the presence of an accompanying person to be granted or refused on the basis of undue hardship. The judge’s notes should be placed on the applicant’s file and in GCMS to document what has transpired.

Assessment process and steps for undue hardship

In cases where the accompanying person has a citizenship application in progress, the following steps may take place when assessing undue hardship on the applicant:

1. The judge should let the applicant know that, as per paragraph R12(2)(a), an accompanying person may not be allowed at the hearing session when they have a citizenship application in progress.
2. The judge may ask the applicant whether the exclusion of the accompanying person would cause the applicant undue hardship and why.
3. The judge must consider all the factors presented by the applicant, which may include
   • commitments that would make it difficult for the applicant to come back to the IRCC office with a different accompanying person;
   • the high cost of travelling to the IRCC office for a hearing, if rescheduled;
   • a mental or physical disability of the applicant’s for which they need support or assistance from the accompanying person; and
   • availability (or lack thereof) of another person to act as an accompanying person.
4. If the judge determines that undue hardship exists and the accompanying person is therefore permitted to attend the hearing, the judge may proceed with the hearing in the presence of the accompanying person.
5. If the judge determines that undue hardship does not exist and the accompanying person is therefore not permitted to attend the hearing, the judge may ask the applicant if they would like to
   1. proceed without the accompanying person; or
   2. have the hearing rescheduled and bring another accompanying person.
6. The judge should ask the applicant if they received the Information on Accompanying Persons and Interpreters form with their Notice to Appear. If the applicant has not received the Information on Accompanying Persons and Interpreters form, the information sheet will be provided to them following the hearing session.
7. At the end of the hearing, the judge must document all the evidence used to determine why the applicant’s request for an accompanying person was granted or refused. The judge’s notes should be placed on the applicant’s file and in GCMS to document what has transpired.

Accompanying persons and minors applying as an adult

Minors applying as an adult must meet the residency requirement, unless prevented from doing so by special circumstances. See Minor applying as an adult. Therefore, in limited circumstances, minors may need to participate in hearings with judges.

Parents or guardians can accompany a minor to a residency hearing for support, but they are not permitted to provide assistance to the minor during any assessment.

If parents or guardians are also scheduled for residency hearing, the citizenship judge should assess them prior to any minor applicants.

Considerations

• Citizenship judges should be flexible in allowing parents or guardians to be present during a residency hearing.
• Minors must be able to meet the requirements on their own merit.
• Minors should be given the opportunity to express their views and wishes, including the wish to have a parent or guardian present.
• If a parent or guardian insists on being present with the minor, citizenship officials should give the family an opportunity to decide amongst themselves.
• Parents should be instructed that they are not to interfere with the assessment.

During the proceedings

When to cease the use of an accompanying person

Citizenship judges have the discretion to end the participation of an accompanying person at any time. The following situations may be grounds for the judge to ask an accompanying person to leave the proceedings:

• the accompanying person is assisting an applicant and seems to provide the answers to or on behalf of the applicant;
• the accompanying person is disruptive;
• the accompanying person takes notes;
• the citizenship judge becomes aware that the accompanying person has a citizenship application in progress. In this instance, the judge may wish to assess whether asking the accompanying person to leave would cause undue hardship to the applicant.

If the citizenship judge ends the participation of the accompanying person, the judge may ask the applicant if they would like to

• proceed without the accompanying person; or
• have their hearing rescheduled and bring a different accompanying person.

The judge’s notes should be placed on the applicant’s file and in GCMS to document what has transpired.

Misrepresentation

If the citizenship judge becomes aware that the accompanying person has a citizenship application in progress, despite having attested that they did not, the judge may refer the matter to the office supervisor to conduct a determination on misrepresentation.

As per subsection 14(1.1) of the Citizenship Act, a citizenship judge is not authorized to make a determination on residence until the completion of any investigation or inquiry for the purpose of asserting whether misrepresentation has occurred.

When misrepresentation is suspected, the office supervisor should consult with Nat-Cit-Operations before proceeding.

Authorized representative

When a citizenship judge has concerns that an accompanying person who is an authorized, paid representative is affecting program integrity or not complying with the intent of the Accompanying Person Declaration and Interpreter’s Oath form, the judge should raise the matter with the local office supervisor, who will take the necessary steps to determine if a local investigation is warranted. See chapter IP 9, section 9, Procedure: CIC office investigation process.