Section 117 IRPR: Excluded Family Member Rule (And How to Avoid It)

Some sponsors discover years after becoming permanent residents that a spouse, partner, or child may be excluded from the family class because that person was a non-accompanying family member who was not examined during the sponsor’s permanent residence application.

The relevant provision is paragraph 117(9)(d) of the Immigration and Refugee Protection Regulations. The rule is serious, but it is not accurate to say that humanitarian relief is always the only possible solution. Statutory exceptions and a temporary public policy may apply in some cases.

This article covers what the rule says, why it exists, the case law behind it, and what to do if it applies to you. 

What Is Section 117 IRPR?

Statutory Definition of the Family Class

Subsection 117(1) identifies the principal relationships that may qualify for membership in the family class. These include a sponsor’s spouse, common law partner, conjugal partner, dependent child, parents and grandparents, certain orphaned relatives, certain persons intended for adoption, and a limited category of other relatives. 

Where Section 117(9)(d) Fits in the Regulations

Subsection 117(9) sets out excluded relationships. Paragraph 117(9)(d) states that, subject to subsection 117(10), a person is not considered a member of the family class where the sponsor has previously applied for permanent residence, became a permanent resident, and that person, at the time, was a non-accompanying family member who was not examined.

The Policy Rationale Behind the Exclusion Rule

Failure to declare the person is common, but non-declaration is not the precise statutory test. A person who was declared but not examined may also be affected. This provision exists to support immigration screening and prevents applicants from avoiding admissibility rules by withholding family members. The regulation says the person must have been “a non-accompanying family member of the sponsor and was not examined,” as stated in paragraph 117(9)(d), Immigration and Refugee Protection Regulations.

Section 117(9)(d): The Three-Part Test

 Element 1: Sponsor Previously Became a Permanent Resident

The exclusion becomes relevant to a later sponsorship after the sponsor is already a permanent resident. Before permanent residence is granted, however, the applicant has a continuing obligation to report all material changes in their family composition, including marriage, common-law relationship, birth of a child, or any other change. 

Element 2: Family Member Existed at Time of Sponsor’s PR

The person must have been a family member of the sponsor at the time the permanent residence application was filed. For a child, this means the child must have already been born and thus, met the applicable family-member definition. For a spouse or common law partner, the legal requirements of that relationship must have existed at the relevant time. Saying that the person merely “existed” is too broad. 

Element 3: Family Member Was Not Examined

The person must also have been non-accompanying and not examined. Paragraph 117(9)(d) is subject to subsection 117(10), which provides an exception where an officer had determined that the person was not required to be examined. Subsection 117(11) limits that exception in specified circumstances. 

Common Scenarios Where Section 117(9)(d) Applies

Undeclared Biological Children

The provision frequently arises where a dependent child who existed during the sponsor’s permanent residence application was not disclosed or examined. 

Undeclared Children From a Previous Relationship

The provision may apply even where the omission resulted from estrangement, custody problems, uncertainty, social stigma, misunderstanding, or incorrect advice rather than deliberate concealment. 

Adopted, Step, and De Facto Children

A stepchild may be a family member because the definition includes a dependent child of the applicant’s spouse or common law partner. An adopted child may also qualify depending on the validity and timing of the adoption. A child who has not been adopted and is not a biological or qualifying stepchild is not automatically a family member. 

Undeclared Spouses and Common-Law Partners

Paragraph 117(9)(d) can apply to spouses, common-law partners, dependent children, and other persons who met the regulatory definition of family member during the sponsor’s permanent residence application. 

Refugees Who Feared Disclosing Family in Country of Origin

Protected persons and resettled refugees may have compelling explanations for non-disclosure, including fear, separation, missing documents, or concern for relatives’ safety. Those explanations do not automatically prevent paragraph 117(9)(d) from applying, but they may be relevant under a public policy or humanitarian request. 

Cultural, Religious, and Custody-Related Non-Disclosure

Non-disclosure may arise from children born outside marriage, disputed parentage, custody restrictions, estrangement, or social and cultural stigma. The legal result depends on whether the person met the family member definition and whether the person was examined. 

Why ‘I Didn’t Know’ Doesn’t Save You

The Strict-Liability Nature of Section 117(9)(d)

Paragraph 117(9)(d) generally operates through objective statutory conditions. It is better not to describe it as a strict liability provision because that term normally belongs to offence law. Dishonest intent is generally not a required element.

Honest Mistakes Still Trigger Exclusion

A person who genuinely did not know about a child is not automatically excluded without examining whether the child legally qualified as a non-accompanying family member at the relevant time and whether every condition in paragraph 117(9)(d) is established. 

Reliance on an Immigration Consultant Is Not an Excuse

Incorrect professional advice does not automatically erase the exclusion. It may be relevant to a humanitarian request, procedural fairness argument, or exceptional claim of ineffective representation. 

The de Guzman Case: Foundational Precedent 

Facts of de Guzman v Canada (MCI), 2005 FCA 436

In de Guzman v Canada (Minister of Citizenship and Immigration), 2005 FCA 436, the sponsor failed to disclose her two sons at the time of her immigration to Canada. She later tried to sponsor them, and their applications were refused because they had not been examined as her non-accompanying family members. 

What the Federal Court of Appeal Held

The Federal Court of Appeal upheld paragraph 117(9)(d). It rejected the arguments made under section 7 of the Canadian Charter of Rights and Freedoms and under international instruments. 

Why de Guzman Still Governs 20 Years Later

De Guzman remains an important appellate authority on the validity and interpretation of paragraph 117(9)(d). It should not be described as establishing humanitarian relief as the only possible remedy because regulatory exceptions and public policies may also apply. 

Other Key Federal Court Cases on Section 117(9)(d)

Habtenkiel v Canada: Innocent Non-Disclosure

Habtenkiel v Canada (Citizenship and Immigration), 2014 FCA 180, is principally important for its treatment of the relationship between a sponsorship appeal and an application for judicial review. If a person is completely barred from being sponsored under the “family class” because their sponsor failed to declare them in the past (under section 117(9)(d) of the Regulations), they do not have to appeal to the Immigration Appeal Division (IAD) before going to court.

Because the IAD is legally prohibited from looking at humanitarian and compassionate (H&C) factors for these specific cases, an appeal there is useless. Therefore, they have the right to bypass the tribunal entirely and apply directly to the Federal Court for a judicial review of their denied H&C application. 

Kobita v Canada 2012 FC 1479 – Scope of Assessment Is not Just Inadmissibility

In Kobita, the Court stated an officer cannot reject an H&C application simply because a person is inadmissible, since being inadmissible is the whole reason they are applying for H&C relief in the first place, and the officer must clearly compare what is best for the child under each possible option rather than just looking at one scenario

Momi v. Canada (Minister of Citizenship and Immigration), 2019 FCA 163: Dependent Child Considerations

Momi is cited alongside these cases for its discussion of how officers weigh an applicant and/or her putative sponsor’s broader adverse immigration history, a factor that surfaces often in 117(9)(d) submissions involving children; given the lack of jurisdiction at the Immigration Refugee Board (Appeal Division)  applicants must have extensive and convincing Humanitarian & Compassionate evidence presented at the IRCC/visa office level for ready presentation to teh Federal Court if the case is refused.

A.B. v Canada: AB v. Canada (MCI), 2022 FC 1540: Best Interests of the Child in H&C Review

A.B. v Canada is one of several anonymized Federal Court decisions on how thoroughly an officer must engage with a child’s best interests before refusing H&C relief.  A.B. v Canada and similar rulings confirm a cursory mention of a child isn’t enough. 

What Happens When Section 117(9)(d) Is Applied

Refusal of the Sponsorship Application

If paragraph 117(9)(d) applies and no exception, public policy, or exemption is available, the person is not a member of the family class through that relationship. The family class application may therefore be refused without a full assessment under the ordinary family class requirements. 

The Permanent Family-Class Bar

The regulation contains no expiry period. The exclusion is commonly described as a lifetime family class bar. Time passing by itself does not remove it. However, humanitarian relief is not always the only possible response. 

Why the IAD Cannot Overturn a 117(9)(d) Refusal

A sponsor may have a right to appeal a family class refusal under subsection 63(1) of IRPA. However, section 65 prevents the Immigration Appeal Division from considering humanitarian and compassionate factors unless it first finds that the person is a member of the family class and that the sponsor qualifies as a sponsor. 

Section 25 IRPA H&C: The Only Way Around the Rule if No Public Policy Is Applicable 

When Humanitarian and Compassionate Grounds Can Apply

A regulatory exception or public policy may apply. Where neither applies, the foreign national may request an exemption under subsection 25(1) of IRPA based on humanitarian and compassionate considerations.  The public policy may apply where the sponsor became a permanent resident through specified categories, including as a protected person, resettled refugee, or sponsored spouse, partner, or dependent child. All eligibility conditions must still be satisfied.

The policy is scheduled to end on September 10, 2026, and may be canceled earlier. IRCC states: “There’s no special process to sponsor undeclared family members under this public policy.” Government of Canada, Public Policy for Undeclared Family Members. 

The Best Interests of the Child Test

Where a child is directly affected, the officer must meaningfully consider the child’s circumstances and interests. Those interests are important but are not automatically determinative of granting permanent resident status to a child. 

Evidence That Wins H&C Applications for 117(9)(d) Cases

Relevant evidence may include the history of the relationship, the reasons for non-disclosure or non-examination, family separation, dependency, medical or psychological conditions, country conditions, effects on children, and hardship to other directly affected persons. 

Success Rates and Realistic Expectations

Humanitarian relief is discretionary and fact-specific. There is no reliable general success rate that should be expected without current and properly defined data, such as ongoing access to information requests to the Immigration Department. 

How to Avoid Section 117(9)(d) Before You Become a PR 

Declare Every Family Member: Even Estranged or Unknown Ones

Applicants should disclose every person who may meet the legal definition of a family member, including estranged and non-accompanying family members. A person should not declare a purely speculative child as an established fact. Where parentage is uncertain, the applicant should disclose the circumstances accurately and seek instructions or legal advice. 

How to Amend Your PR Application Before Landing

Applicants must promptly report material changes in family composition before permanent residence is granted. These may include marriage, a common law relationship, separation, divorce, birth, death, adoption, or changes affecting dependent children. A permanent resident card does not cure incomplete disclosure. 

Voluntary Disclosure Strategy During Processing

A procedural fairness letter usually means the officer has already identified a concern. The response should be complete, accurate, and supported by evidence. Voluntary correction may be relevant but does not guarantee that paragraph 117(9)(d) or the misrepresentation provisions will not apply. 

If You’ve Already Landed Without Declaring 

Assessing the Risk Honestly

The first step is to determine what information appeared in the original permanent residence application, whether the person met the family member definition, whether the person was declared, whether an examination occurred, and why no examination took place. 

Voluntary Disclosure vs Waiting to Sponsor

There is no universal rule that a separate disclosure before sponsorship will produce a better legal result. The timing and form of any disclosure should be assessed carefully because it may also raise a possible misrepresentation investigation. 

Consequences Under Section 40 IRPA Misrepresentation

Section 40 of IRPA is separate from paragraph 117(9)(d). A permanent resident found inadmissible for misrepresentation may face enforcement proceedings and possible loss of permanent resident status. The five-year consequence should not be described simply as another sponsorship bar. 

Federal Court Judicial Review Options After a 117(9)(d) Refusal 

When to Seek Judicial Review

Judicial review may be available, but the relationship between an Immigration Appeal Division appeal and Federal Court review can be complex. Judicial review may concern the interpretation of paragraph 117(9)(d), a regulatory exception, public policy eligibility, procedural fairness, or the reasonableness of a humanitarian decision. 

Arguments That Have Succeeded on Judicial Review

Successful judicial review applications may involve an unreasonable assessment of a child’s interests, failure to address significant evidence, legal error, or procedural unfairness. The result depends on the reasons and record in the individual case.  Where judicial review succeeds, the usual remedy is to set aside the decision and return the matter for reconsideration. The Federal Court does not normally issue the permanent resident visa itself. 

Common Misconceptions About Section 117(9)(d)

Time alone does not remove paragraph 117(9)(d), and incorrect professional advice is not automatically a defence. The Immigration Appeal Division’s humanitarian jurisdiction is restricted by section 65 of IRPA.  It is also incorrect to assume that every case requires humanitarian relief. Subsections 117(10) and 117(11), the temporary public policy, and the facts of the original permanent residence application must be reviewed first. 

When to Hire an Immigration Lawyer for a 117(9)(d) Case

Legal advice may be useful where an undeclared or unexamined family member has been discovered, an application is pending, a procedural fairness letter has been received, a refusal has been issued, or a misrepresentation concern has arisen.

If you’re facing this rule, whether as an excluded family member in Canada; or a situation just discovered or a refusal already in hand, a lawyer can assess whether H&C relief, judicial review, or a Mandamus Canada application for a delayed decision fits your case. 

Conclusion

Paragraph 117(9)(d) can prevent a person from qualifying as a member of the family class where the person was a non-accompanying family member who was not examined during the sponsor’s permanent residence application.

Do you need an Immigration Lawyer in Canada?

Discovered an excluded family member in your file, or are you facing a refusal already?

Our team at Chaudhary Law has helped families navigate section 117(9)(d) cases and humanitarian applications.

Book a consultation by calling 416-447-6118 or visiting chaudharylaw.com. 

FAQs

 What is section 117(9)(d) IRPR?

It excludes a family member from the family class if they weren’t declared and examined when the sponsor became a permanent resident.

 What is the excluded family member rule in Canada?

The same section 117(9)(d) exclusion: a family member left off a sponsor’s PR application generally can’t be sponsored later. 

What happens if I didn’t declare a dependent when I applied for PR?

That dependent is generally permanently excluded from the family class, though an H&C application may offer a path forward. 

What is the de Guzman case in Canadian immigration?

The 2005 Federal Court of Appeal decision upholding section 117(9)(d)’s constitutionality remains the leading precedent on the rule. 

Can I sponsor an undeclared child later after becoming a permanent resident?

Generally no, not through the standard family class process; an H&C application is typically the only route. 

Does an H&C application work to overcome section 117(9)(d)?

It can, but success depends heavily on the evidence presented, particularly hardship and a child’s best interests where relevant. 

Can I appeal a section 117(9)(d) refusal to the Immigration Appeal Division?

The IAD has very limited jurisdiction, since the exclusion is a legal finding, not a discretionary decision it can override. 

Is section 117(9)(d) constitutional?

Yes, the Federal Court of Appeal upheld its constitutionality in de Guzman, and that finding has stood since. 

What if my immigration consultant told me not to declare my child?

That may support an H&C application, but it doesn’t undo the exclusion or guarantee approval on its own. 

How can an immigration lawyer help with a section 117(9)(d) case?

A lawyer can assess whether H&C relief, judicial review, or another remedy fits your situation, and help build the evidence these applications require.