A skilled worker has applied for a working visa in Canada. She has two sons, one is 21 years old and the other is 22 years of age. She wants to put them in the application as her dependent children. Technically, children who are 22 years old and under are considered dependents. However, since the application takes more than one year to process, her children will turn more than 22 years of age at the time when the application is approved. At that time, her children must have finished their schools and are defined as independents. The question is, will the sons be eligible to immigrate as dependents?
The answer is yes, but its processes still depend on the definition of “dependent.” Before defining that, it is important to review the case based on the following context.
Many overseas workers apply to Canada as skilled workers. A skilled worker has years of experience and education on a particular field, thereby creating skills specific only to the field. These types of immigrants are favored in Canada and other western countries. Applicants under the skilled worker category are allowed to include their spouse and dependent children on their applications. When approved, the spouse and children may immigrate to Canada as well.
For the skilled workers applications, dependent children are legally defined as those who are 22 years old or below. However, there is an exception to this definition. Children who are more than 22 years old are still considered as dependents if they are substantially dependent on their parents’ remittances even before they reached that age. Also, those who are taking continuing courses until they reach this age is considered dependent.
On the other hand, one important factor to consider regarding this definition lies not in the statutory rules but in the in the application status. Sometimes, information regarding dependents is “locked in” or “frozen.” In other words, a child’s age and financial dependency may be calculated or taken into consideration in three different situations: as of the application date, as of some other dates, or as of the immigration officer’s bidding whenever that may be.
Lock-in Date for Age
Under this condition, the Canadian immigration officials (Citizen and Immigration Canada or CIC) have internal policies regarding the age of the children. They identify the lock-in date on the date of the skilled worker’s application. The lock-in date is defined by the following adaptations from the CIC policy manual:
The lock-in date serves as a reference point in order to freeze certain factors until such time that the applications are processed. Such definition is not under any Act or regulations. However, it does not go against any of those laws that an applicant must follow.
For the refugees or those belonging to the economic class, the lock-in of age occurs when a visa officer has accepted an application submission. This policy does not present any conflicts with the jurisprudence, which normally overrules CIC policies in the occurrence of conflicts.
In this case, the younger son in the example, eligibly qualifies as a dependent. Also, he still qualifies as a dependent even after one year and a half because he is below 22 years old at the time of the lock-in for age.
Lock-in Date for Financial Dependency
In contrast, the lock-in date for financial dependency is on the date when a decision is made for the application. This means that the oldest son is not considered a dependent on the day when an immigration officer decides on an application. After one year and a half, he not considered financially dependent anymore. This is according to the former Canadian immigration policy.
This policy is amended already. In 2005, the Hamid (a Federal Court of Canada) stated that in the absence of a contrary statutory requirement, the lock-in date for financial dependency of a skilled worker’s children is on the date of application. This rule is still being followed today.
The court of Hamid logically reasons that the lock-in definition for age must also be the same as the lock-in for financial dependency. Moreover, there is not enough reason to hold the applicants responsible for the delay in the application process. Since this is beyond their control, giving them more chance to have their dependent children immigrate with them is being favored today.