Section 42 — Inadmissible family member
Text of provision
(1) A foreign national, other than a protected person, is inadmissible on grounds of an inadmissible family member if
(a) their accompanying family member or, in prescribed circumstances, their non-accompanying family member is inadmissible; or
(b) they are an accompanying family member of an inadmissible person.
(2) In the case of a foreign national referred to in subsection (1) who is a temporary resident or who has made an application for temporary resident status or an application to remain in Canada as a temporary resident,
(a) the matters referred to in paragraph (1)(a) constitute inadmissibility only if the family member is inadmissible under section 34, 35, 35.1 or 37; and
(b) the matters referred to in paragraph (1)(b) constitute inadmissibility only if the foreign national is an accompanying family member of a person who is inadmissible under section 34, 35, 35.1 or 37.
Plain English
Section 42 makes a foreign national inadmissible if an accompanying family member is inadmissible. The inadmissibility of one family member can therefore prevent the entire family from entering or remaining in Canada.
Section 42(2) provides that the inadmissibility of a non-accompanying family member does not make the applicant inadmissible, but may require disclosure.
Practical effect
The accompanying family member inadmissibility rule in s 42 is a significant practical concern in family immigration cases. Key points:
- Accompanying family members — a family member who will accompany the applicant to Canada must also pass all admissibility requirements; one inadmissible family member renders the entire group inadmissible
- Non-accompanying family members — a family member who is not accompanying the applicant does not trigger inadmissibility for the applicant, but failure to disclose a family member (whether or not accompanying) can itself be misrepresentation under s 40
- Rehabilitation and relief — if the accompanying family member's inadmissibility can be resolved (e.g., through rehabilitation under s 36(3) for criminality, or an A-17 waiver for temporary entry), the admissibility of the group is restored
- Interaction with the family class — family class applicants sponsored under s 12(1) must themselves pass admissibility; and the sponsor must not be in default of a previously sponsored person