Adam Aboushady case: Immigration rules shouldn't separate families, experts say

Immigration experts say couples applying for permanent residency shouldn't have to choose between coming to Canada on their own or staying in their home country with their newborn — so long as proper immigration procedures are followed.

"We always tell people: 'Don't allow your immigration status to influence your family planning,'" says David LeBlanc, a managing director and senior counsel at Ferreira-Wells Immigration Services.

However, once a woman gives birth to a child, the couple must report that to Citizenship and Immigration Canada, he says. It is the same for any important change in family status.

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There have been a number of stories recently about immigrant parents being separated from an infant due to Canadian immigration policies.

Immigration consultants say the problem is more common than you might think. But at the same time it is not typical for immigration officials to force permanent residents to choose between Canada or their newborn.

​Samah and Ahmed Aboushady — permanent residents who live in Ontario with their two daughters — have been fighting with Citizenship and Immigration Canada to bring their baby boy into the country from Cairo. Samah gave birth to Adam in the U.K., after the couple officially became permanent residents. 

But when CIC rejected a visitor's visa for Adam, the parents had to either continue living outside of Canada and forfeit their permanent residency or leave Adam behind until the paperwork could be sorted out. That is what they did, leaving Adam in Cairo with his grandparents for most of the past year.

In a similar case in late 2014, an Indian couple with permanent resident status moved to Canada, leaving their three-year-old son behind. They thought they could sponsor him after their arrival.

However, Bhavna Bajaj, the mother, says the couple was told they had broken the law by not revealing they had a child in India. Their application to sponsor their child on humanitarian and compassionate grounds was rejected.

Births must be disclosed

A birth or any change in family structure, additional work experience or education, or a change in a person's medical condition should be automatically disclosed to the relevant overseas embassy and CIC if the individual's case is in process, says Dory Jade, the president of the Canadian Association of Professional Immigrant Consultants. 

Til you get to the point of entry, anything should be disclosed — anything.- Dory Jade, CAPIC president

In the Bajaj case, the couple say an immigration consultant advised them to sponsor their son after they arrived in Canada, which is why they did not disclose the birth to immigration officials.​​"Until you get to the point of entry, anything should be disclosed — anything," he says.

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Jade says there are "many cases like this" and that it is "common" for applicants to wait to disclose all their dependants until after they've received permanent residency and have arrived in Canada. Unregistered immigration consultants sometimes inform applicants that it's OK to sponsor an undisclosed child after arriving here.

However, the Canadian government views this as misrepresentation, regardless of whether the applicant concealed information intentionally or by mistake.

Applicants found guilty of misrepresentation under section 40 of Canada's Immigration and Refugee Protection Act can be banned from Canada for five years.

Unregistered consultants 'don't follow any law'

CIC does not require applicants to work with an immigration consultant. But, Jade and LeBlanc say it's important to work with a registered one to have recourse if anything goes awry.

If a consultant is registered with the Immigration Consultants of Canada Regulatory Council, then applicants who received misinformation can file a complaint. With unregistered consultants, that option doesn't exist. 

It can also be risky to apply without any help. When people attempt to apply on their own, they can be unaware of proper procedures and timelines, says LeBlanc.

"If they make any mistakes, CIC will usually not be very helpful," he says. "We've had families come to us that are just absolutely devastated at the possibility of being separated from a young baby."

We've had families come to us that are just absolutely devastated at the possibility of being separated from a young baby.- David LeBlanc, senior counsel at immigration services firm

His firm has helped a number of families avoid being separated like Bajaj and the Aboushadys. 

They helped a young Canadian in Kenya, who was attempting to sponsor his wife and register their newborn for Canadian citizenship.

They had him also apply to sponsor the child because citizenship often takes longer to be granted, which could have left the child alone in Kenya after the mother was granted permanent residency.

In situations like the Aboushadys, the firm will push hard for special consideration from the embassy's program manager or secretary of immigration, who supervise the visa program.

"That's often the case where the visa office really should just issue a visitor visa immediately to facilitate that family returning," he says.

Officers have discretion

Both experts are confounded by the Aboushadys' situation. CIC rejected the baby's visitor visa in July of last year. Recently, the family was told their application to sponsor Adam's permanent residency was "incomplete."

LeBlanc calls the initial visitor's visa rejection "gross." While Jade says the decision seems "weird" and shows "a lack of judgment from the officer."

Adam should be granted a visitor's visa on humanitarian and compassionate grounds, they both say.

"Discretion can be used," says Jade. "It's just a visa, you know."

LeBlanc agrees. He says no changes to CIC's system are necessary, but officers should be alert to humanitarian and compassionate circumstances.