Assessing the best interests of the child


Immigration Matters

Sukhram  Ramkissoon

Assessing the best interests of the child

In several of my columns, I have discussed  issues relating to the “best interests of the child” with respect to applications for permanent residence on humanitarian and compassionate (H&C) grounds.

This subject continues to be a matter of concern to many in our own  Caribbean community.

In this week’s column we will look at the recent case of a couple from Poland who applied for permanent residence from  within Canada  on H&C grounds or alternatively, a temporary resident permit.

The couple, James and Joan (not their real names) who have resided in  Canada for more than a decade, now have two Canadian-born  children.

In April last year when the couple had applied for permanent residence, they had a son and were expecting their second child.

They submitted that it was in their son ‘s best interest that they be allowed to remain in Canada.

But the immigration officer who considered their application found that the couple had provided “insufficient objective evidence that relocating to Poland and resettling there would have a negative impact on their son.”

“While I acknowledge their son has spent the majority of his life in Canada given his young age,it is reasonable that he would be able to adapt to changing situations with the continued support of his parents, ” the officer said.

The officer accepted that while the applicants might face some difficulties in readjusting to life in Poland, it was reasonable to believe that during their years in Poland they would have developed and continued to have friends, acquaintances, and social networks, and they would not be returning to an unfamiliar place, language, culture or place devoid of a familial network rendering re-integration unfeasible

” I find that the  applicants have not demonstrated that the general consequences  of returning to Poland would be counter to the best nterest of their son,”  the officer noted.

The oficer took into account that the applicants did not wish to return to Poland but not wishing to return to Poland was not, in the officer’s view, a sufficient reason to allow the applicants to become permanent residents of Canada.

The officer  refused the H&C application and, also found that  there were not sufficient grounds to warrant issuance of a temporary resident permit.

The couple then applied to the Federal Court of Canada to set aside the officer’s decision and remit their H&C application for reconsideration by a different officer.

Did the officer fail to resonably assess the best interest of the child?

According to the  couple, the officer misapprehended the evidence regarding their son’s establishment and ties to Canada. They noted that he has spent his whole life in Canada, and has never been to Poland; yet, the Officer appears to believe that the child previously resided in Poland.

The applicants said that this is evident in the reasons where the officer stated that their son “has spent the majority of his life in Canada” and his best interests would not be compromised were he to “return” to Poland with his parents.

The applicants acknowledged that this error alone would not be fatal but said that  when taken together with the officer’s overall approach, it demonstrates that the “best interests of the child” analysis is fatally flawed.

They complain that the officer never identified their son’s best interests, making it impossible for the officer to give them considerable weight.

According to the applicants, the officer failed to consider that it may be in their son’s best interests to remain in Canada with them and measure that against the scenario which is treated as a foregone conclusion that he would be resettling in Poland.

The judge found that the immigration officer unreasonably assessed the best interests of the applicants’ son as well as their establishment in Canada.

Judicial review was granted and the matter is returned for redetermination by a different immigration officer.

Best of luck to James and Joan.

Sukhram Ramkissoon is a member of ICCRC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756