IMMIGRATION: Canadian-born children no bar to removal

IMMIGRATION: Canadian-born children no bar to removal

When the end is near for those about to be removed from Canada, some take comfort in the fact that they have a Canadian-born child.

In a recent decision, the Federal Court made it clear that having a child born in this country will not necessarily act as a bar to removal.

Balroop Sookdeo came to Canada in 2005 with his wife and two children and made a refugee claim here. In 2006, he and his wife had a baby boy. After their refugee claim was refused they made an application for permanent residence on humanitarian grounds. While that application was in process the Canadian Border Services Agency attempted to remove the family. After failing to report for removal, Sookdeo was arrested but his wife and two older children remained at large.

Sookdeo’s counsel asked the removals officer to defer his client’s removal because no decision had yet been rendered on the humanitarian application. He also argued that Sookdeo was the principal breadwinner of the family and his removal would be contrary to the best interests of his son.

The officer noted that the humanitarian application had been pending with a local CIC for only about 5 months when 30 months is needed to complete the process. The officer reasoned that since Sookdeo was no longer authorized to work in Canada, he could no longer legally support his family here. As for the Canadian-born child, the officer acknowledged that since he was a Canadian citizen he could stay here but noted that, at the last minute, the father changed his mind and decided to take the boy to Trinidad with him. The officer refused the deferral request and Sookdeo appealed.

Sookdeo’s lawyer pointed the Federal Court to Canada’s obligations under the Convention on the Rights of the Child and on jurisprudence from the Supreme Court of Canada which requires immigration officials to be “alert, alive and sensitive” to the best interests of Canadian-born children.

Mr. Justice Mosley wouldn’t have any of it.

In his reasons for decision, the judge pointed out that in such cases “removal is the rule while deferral is the exception”. He noted that officers considering deferral should consider a pending humanitarian application as a relevant factor but not as a bar to removal. He also pointed out that the Federal Court of Appeal had already ruled that attempts to thwart such removals based on the Convention are “without merit”. In dismissing the judicial review, he reminded the applicant that the jurisprudence is clear, “illegal immigrants cannot avoid the execution of a valid removal simply because they are the parents of Canadian-born children”.

This decision helps to make it clear that when it comes to removal, Canadian-born kids do not offer their parents an automatic lifeboat. These children can be used to successfully obtain a deferral. However, more must be shown if the officer or the Federal court is to defer or stay the removal. Amongst other things, the possibility of irreparable harm to the applicant or to a family member arising from an untimely removal must be demonstrated. Clear, convincing, and extensive documentation must be shown to the removals officer proving the harm that might ensue if the removal were to proceed as scheduled.

Simply handing over a Canadian birth certificate will never do.

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Guidy Mamann practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email reporter@migrationlaw.com