November 17, 2017

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U.S. family launches appeal after Canadian residency rejected due to child's epilepsy

SUPPLIED</p><p>Karissa and Jon Warkentin with four of their children: son Gabe, 14, Grace, 17, Shataya, 18, and Karalynn, six. The American family may be forced to leave Canada in November when their work visas expire.</p>

SUPPLIED

Karissa and Jon Warkentin with four of their children: son Gabe, 14, Grace, 17, Shataya, 18, and Karalynn, six. The American family may be forced to leave Canada in November when their work visas expire.

The Warkentins are staying put for now, their lawyer says.

The American family, rejected for permanent residency by immigration officials because their daughter might someday impose an excessive demand on Canada’s medicare system, has filed legal action to have their case reviewed.

Winnipeg immigration lawyer Alastair Clarke filed a motion for leave to have a federal court judge look at the Warkentins’ case.

“At this point, the issue before the courts is whether the immigration officer who made that decision made an error in making it. My assessment is he did,” Clarke said Wednesday.

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The Warkentins are staying put for now, their lawyer says.

The American family, rejected for permanent residency by immigration officials because their daughter might someday impose an excessive demand on Canada’s medicare system, has filed legal action to have their case reviewed.

Winnipeg immigration lawyer Alastair Clarke filed a motion for leave to have a federal court judge look at the Warkentins’ case.

"At this point, the issue before the courts is whether the immigration officer who made that decision made an error in making it. My assessment is he did," Clarke said Wednesday.

Technically, the family’s best shot is to have a federal judge order a new review of the family’s application by a different immigration officer.

"It could take a while to get through the federal court, and there are various steps, two federal court judges and scheduling," the lawyer said.

With the court action ongoing, their lawyer is optimistic he can get the family an extension on their work permit, which expires Nov. 24, so they can stay through the appeal process.  

"Yes, there’s hope," Clarke said.

The Warkentins’ application for permanent residency was denied by Canadian immigration officials because of a section of the Immigration and Refugee Protection Act that states a foreign national is inadmissible on health grounds if their condition might reasonably be expected to cause excess demand on health or social services.

Their six-year-old daughter, Karalynn, was diagnosed with epilepsy and global developmental delay in 2014, a year after the family moved to Canada. She hasn’t had a seizure in more than two years, and her parents say she is relatively healthy, rarely catches colds, gets along with her classmates and has no need of special physical aides.

"The case is proceeding and we’re hopeful. And there are a lot of avenues our case could go; there’s a possibility the Department of Justice could overrule the Immigration (Department) before the case goes to a judge or it could proceed to court. Or the minister of citizenship and immigration could intervene on our behalf and give us a permit of residency. He has the power to do that," Karalynn’s father, Jon Warkentin, said.

"You know lawyers. He’s hedging his bets, but he thinks we have a good case," he said in a phone interview from the family-owned tourism lodge on the Waterhen River in the Interlake village of Waterhen, located about 320 kilometres northwest of Winnipeg.

Both the Waterhen mayor and the school principal have publicly vouched for the family, while Immigration, Refugees and Citizenship Canada has yet to publicly comment on the case.

Another Winnipeg immigration lawyer, meanwhile, also questioned the federal grounds for refusing the family.

"They’ve certainly got compelling facts which should enable an immigration officer to see that this particular child would not create excessive demand on social services," Kenneth Zaifman said.

For instance, Karalynn gets all the help she needs in school now through block funding allocated to the local school division, and the family have said if she ever needs more care they can cover the cost.

"Another factor is the prognosis for the child and what’s called humanitarian and compassionate factors. An immigration officer can go beyond the medical grounds and look at all the circumstances of the case," Zaifman said.

alexandra.paul@freepress.mb.ca

— with files from Carol Sanders

Read more by Alexandra Paul .

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