Hilary Evans Cameron & Josh Stark, “Under the IRPA and after Irving: The Right to Standing before the Federal Court for Canadian Children Seeking to Challenge Their Parents’ Deportations”
Working Abstract
The Federal Court has long held that Canadian children are not “directly affected” by the
decision to deport their nonstatus parents. If a nonstatus parent seeks to challenge her
deportation before the Court, her Canadian child will therefore not be a party to the
proceedings. As a result, the Court may not consider the child’s interests and may allow
the deportation to proceed even if the administrative decision that triggered it is
potentially unlawful. The jurisprudence that established this principle was decided under
the former Immigration Act over a decade ago and has not been revisited since the passing
of the 2002 Immigration and Refugee Protection Act (IRPA). This paper argues that the
IRPA fundamentally changes the lay of the land for Canadian children, especially in light
of the Federal Court of Appeal’s recent decision in Irving Shipbuilding Inc., which
clarifies the muddled law of standing on applications for judicial review. This paper will
review the current approach to the question of standing for Canadian children of non
status parents; give an overview of the principles of the law of standing developed in
other, related, contexts; and argue that under the IRPA, and in light of Irving, this
approach is no longer good law. Before he loses a parent as a result of a potentially
unlawful administrative decision, a Canadian child has the right to be heard.
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