Last Updated on January 24, 2019
A Canadian immigration panel’s ruling that unborn children have no best interests has been dismissed by a federal judge.
Instead the best interests of an unborn child should be considered in exactly the same way as a child post-birth when immigration decisions are made, according to Judge Michel Shore’s April 21 ruling.
The issue was raised in a case concerning a Chinese man and his Canadian wife, who was five months pregnant when the Immigration Appeal Division (IAD) upheld a 2012 deportation order on appeal, in June 2014.
Judge Shore quashed the ruling and ordered the case reopened, saying an error was made when Fangyun Li’s appeal against his deportation on humanitarian grounds was rejected.
The IAD’s report said that until the baby was born there were no best interests to consider.
But Judge Shore found unborn and born children should be treated without distinction when it comes to assessing the child’s best interests.
Now legal experts are suggesting the ruling could be used outside immigration cases when establishing the rights of an unborn child.
Current Canadian law does not recognize a child as a person until the birth has taken place.
Li first came to Canada aged 18 on a student visa in 2002 and engaged in a sham marriage to a Canadian citizen to gain permanent residency, according to the case notes.
It was five years until he was eventually granted that status in 2007, before he divorced in 2008.
In 2012 he genuinely married current wife Ka Kei Tang, also a Canadian. In the same year immigration officers caught up with him and began deportation proceedings related to his first marriage.
But the time the appeal hearing came around, in 2014, Li’s wife was pregnant, but the IAD did not take into account the best interests of the unborn child.
Judge Shore says those best interests should have been considered, so now the case will be revisited.
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