Humanitarian and compassionate (H&C) considerations: Inadmissibility of family members under subsection 42(1) of the Act

Family members who are in Canada may become permanent residents concurrently with a principal applicant. Family members residing abroad cannot be included for concurrent processing, but they can be processed as members of the family class supported by a sponsorship once the applicant becomes a permanent resident.

All family members must be examined with the principal applicant, even if they are not being processed for permanent residence. Family members who are not examined are excluded from the family class as per paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations (IRPR) and may not be sponsored at a later date. For additional information, refer to the Determining membership in the class: Spouse or common-law partners PDI.

Except in a few limited situations, an inadmissible family member, inside or outside of Canada, makes the principal applicant inadmissible, regardless of whether the inadmissible family member is seeking permanent resident status. An H&C applicant may specifically request an exemption from subsection A42(1), which requires that the applicant’s family members not be inadmissible.

Decision-makers may waive the requirement under paragraph R30(1)(a) that family members be medically examined, and paragraph R68(c) that family members not be inadmissible for a foreign national to become a permanent resident. Granting an exemption from subsection A42(1) should be done in exceptional circumstances only, when there is no other solution to the inadmissibility and when decision-makers are satisfied that:

• the family member is unavailable to be examined, or
• it would be unreasonable to require examination in light of the circumstances of the case

It should not be used to overcome a known or suspected inadmissibility of a family member abroad.

Possible scenarios involving examination of family members

• An accompanying family member who has been examined and found inadmissible:
  • applicants may request an exemption under subsection A25(1), or the decision-maker may consider an exemption under section A25.1 to overcome the inadmissibility of the family member
  • the responsibility for granting the waiver or preparing the case for the delegated decision-maker rests with the office responsible for the principal applicant’s file
  • once the subsection A25(1) or section A25.1 waiver is granted for the inadmissibility, a waiver for subsection A42(1) is not necessary
• A non-accompanying family member who has been examined and found inadmissible, making the principal applicant inadmissible under subsection A42(1); the applicant requests an exemption, or the decision-maker considers granting an exemption on their own initiative:
  • it is the delegated decision-maker for the principal applicant’s application who decides whether to grant an exemption to overcome the principal applicant’s subsection A42(1) inadmissibility
  • the waiver is not for the actual inadmissibility of the family member, but rather the requirement that a family member not be inadmissible (and as a result of the grant of a waiver, the principal applicant may be issued a permanent resident visa). The non-accompanying family member remains inadmissible
• A non-accompanying family member who cannot be examined:
  • the decision-maker must consider whether every effort has been made to have the family member examined
  • the decision-maker must advise the applicant that if the requirement to examine a family member is waived, the applicant will be barred from sponsoring that family member (paragraph R117(9)(d))
  • the authority to waive the requirement that non-accompanying family members be examined in order for a foreign national to become a permanent resident (paragraph R68(c)) is delegated to the decision-maker