Best interests of the child in immigration
Overview
In Canadian immigration law, the best interests of a child directly affected must be assessed as an important factor in humanitarian and compassionate (H&C) applications under s 25 of IRPA, and in other contexts such as IAD appeals involving removal orders. The Supreme Court of Canada in Baker v Canada (1999) held that decision-makers must be "alert, alive and sensitive" to children's interests. The best interests analysis does not necessarily determine the outcome but must be given significant weight.
The best interests of the child (BIOC) principle in Canadian immigration law draws on the United Nations Convention on the Rights of the Child (UNCRC), which Canada has ratified. While the UNCRC is not directly incorporated in domestic law, courts have held that IRPA must be interpreted consistently with Canada's international human rights obligations, including the UNCRC.
Legal basis
- IRPA s 25(1) — H&C applications must take into account "the best interests of a child directly affected"
- IRPA s 3(3)(f) — IRPA is to be construed and applied in a manner that complies with international human rights instruments to which Canada is signatory
- Baker v Canada (Minister of Citizenship and Immigration) [1999] 2 SCR 817 — the Supreme Court of Canada decision establishing the "alert, alive and sensitive" standard
- Kanthasamy v Canada (Citizenship and Immigration) [2015] 3 SCR 909 — reaffirms and elaborates the BIOC analysis in H&C decisions
- United Nations Convention on the Rights of the Child, Article 3 — the best interests of the child shall be a primary consideration in all actions concerning children
How it works
Whose interests are assessed?
The BIOC analysis applies to children who are "directly affected" by the decision. This includes:
- The applicant's own children (whether Canadian citizens, permanent residents, or foreign nationals)
- Canadian citizen children who would be separated from a parent by the removal decision
- Children in Canada who depend on the applicant (e.g., grandchildren, children in the applicant's care)
The analysis does not require the child to be a Canadian citizen, though Canadian citizenship of a child is a significant factor.
What the analysis must include
Courts have held that a proper BIOC analysis must consider:
- The age of the child
- The nature of the child's relationship with the applicant
- The impact of removal on the child's daily life, education, and development
- Whether the child would be separated from the applicant or would accompany them to the country of removal
- Conditions in the country of removal insofar as they affect the child
- The child's connections to Canada (language, school, community)
BIOC does not guarantee a positive outcome
The BIOC is one of many factors in the H&C analysis. Even where children's interests favour the applicant remaining in Canada, the decision-maker may conclude that other factors (e.g., serious criminal history, deliberate misrepresentation) outweigh those interests. The key requirement is that children's interests are genuinely considered, not that they determine the outcome.
BIOC in IAD appeals
When the IAD hears an appeal of a removal order on humanitarian and compassionate grounds, the BIOC is similarly an important factor. The IAD may stay a removal order where, among other factors, the best interests of children in Canada would be significantly harmed by removal.
Common errors in BIOC analysis
Courts frequently quash H&C decisions where the decision-maker:
- Failed to mention or analyse children's interests at all
- Treated BIOC as a threshold test (asking only whether the child would be in danger) rather than a holistic welfare assessment
- Conflated the children's interests with the applicant's interests without independent analysis