Abstract
Given Canada's child care deficit, economic migration remains contingent on the unpaid care work of grandparent migrants, particularly grandmothers or ‘flying grannies’, who arrive through temporary pathways such as the super visa and often juggle multiple transnational caring obligations. However, routine pauses to the parent and grandparent sponsorship program render humanitarian and compassionate applications one of the few options available for grandparents seeking permanent residence. Yet this discretionary tool and grandparents’ multiple caregiving roles continue to be understudied. This socio-legal study, therefore, unpacks narratives of care in 171 humanitarian and compassionate grounds cases involving grandparents who applied to, considered applying, or were referred by judges and immigration officers to apply for the Super Visa. Drawing on Ellermann, we argue that the types of care that are valued and, subsequently, which ‘exceptional’ cases are granted permanent residence, reflect a human-capital citizenship logic and membership status. The subjective criteria used by judges and other ‘gatekeepers’, especially when determining the best interest of any child and hardship, reveal multiple tensions, inconsistencies and a limited notion of care that entrench stereotypes based on race, gender, culture, class and other vectors of social location. Ultimately, family reunification is deemed conditional, and grandparents are rendered temporary.
Introduction
In the last two decades, Canada has prioritized economic migration over other immigration pathways due to the belief that skilled migration contributes more to economic growth. The quest for the ‘best and brightest’ contrasts with greater restrictions for non-economic migrants, specifically family-class migrants (Abu-Laban et al., 2022). These restrictions have typically favoured spouses/partners and children, making reunification for extended family members increasingly difficult (Gaucher, 2018). Considering an ageing population and a ‘crisis of care’ (Fraser, 2022), grandparents are often painted as ‘human liabilities’ (Chen and Thorpe, 2015: 90) that burden the public health care system and the social welfare state. Yet, immigrant grandparents, specifically grandmothers, continue to play a significant role in transnational caregiving. Often referred to as ‘flying grannies’ (Plaza, 2000), these grandmothers are paradoxically constructed as ‘feminine, dependent, and non-contributing’ (Bragg and Wong, 2016: 48), but also as essential providers of culturally specific child care that strengthen multicultural societies (Yalamarty et al., 2022).
Introduced in 2011, the Super Visa is a 10-year multiple-entry pathway that permits grandparents to come to Canada as visitors, championed by political parties as a solution to bureaucratic backlog and reducing processing wait times for family-class migrants. Because Canada's Super Visa is valid for a longer period of time compared to similar schemes implemented in Australia (Hamilton et al., 2022) and New Zealand (Liu and Ran, 2022), which respectively give grandparents up to five and up to three years entry, the Super Visa is touted as one of Canada's policy innovations. Indeed, thirteen years later, the Super Visa has become the primary pathway for grandparent migration due to periodic pauses in parent and grandparent (PGP) sponsorship. On the one hand, politicians praise these programs because they allow Canadians to provide their children with culturally competent care through their parents. On the other hand, the substance of the Super Visa program relegates grandparent migration as only being conditionally allowed in Canada because of its temporariness. There is, therefore, a gap between rhetoric and practice with respect to state treatment of grandparents seeking family reunification. The Super Visa has been widely criticized as a system of family reunification that means ‘reunion without immigration’ (Chen and Thorpe, 2015: 90).
As a result, humanitarian and compassionate (H&C) applications and grounds are one of the few options grandparents have towards permanent residence. A discretionary tool for ‘exceptional’ cases not otherwise covered by the Immigration and Refugee Protection Act (IRPA), an H&C assessment is seen as a last resort for migrants pursuing permanent legal status. For grandparents, H&C claims are typically grounded in a discourse of care work that encompasses the care they continue to provide for family members. How then do these discourses of care used in H&C assessments that situate grandparents as providers of care reinforce framings of grandparent care as a temporary good? What happens to state conceptualizations of care when grandparents use these narratives to secure permanency via these grounds?
This paper, part of a larger project on grandparent sponsorship, unpacks how care-based arguments are adopted and evaluated in 171 H&C cases involving grandparents who applied to, considered applying to, or were referred by judges and immigration officers to apply for the super visa. We contend that immigration officers and judges tend to rely on the logic of ‘human-capital citizenship’ (Ellermann, 2020) to determine which types of care are valued and which ‘exceptional’ cases should be granted permanent residence. Grandparents’ caregiving skills are often scrutinized, with case evaluations grounded in debates around whose care needs matter, who is responsible for providing care, and whether the carer has sufficient skills. Assessment criteria are thus informed by gendered, classed, and racialized notions of social reproduction, reinforcing longstanding constructions of ‘desirable’ familial migrants.
We start with a brief definition of care and review of the relatively scant yet growing scholarship on migrant grandparents in Canada. Then, following an overview of the Super Visa program, we discuss Ellerman's concept of human-capital citizenship. Next, we describe H&C pathways and show how grandparents often use care-based arguments to obtain permanent residence. Finally, we present our findings, which reveal multiple tensions, inconsistencies and a limited notion of care that entrenches stereotypes based on race, gender, culture, class and other vectors of social location. Ultimately, drawing on human-capital citizenship, we argue that family reunification is conditional, and grandparents’ care work is valued only insofar as it supports more preferred ‘high-skilled’ economic migrants.
Situating Care in the H&C Pathway
There exists a rich multi-disciplinary literature ‒ including gerontology, migration, geography, law, and anthropology ‒ on grandparents migrating to Canada and other settler colonies (Aggarwal and Das Gupta, 2013; Baldassar and Merla, 2013; Battista, 2022; Braedley et al., 2021; Chen and Thorpe, 2015; Dossa and Coe, 2017; Ferrer, 2015; Ferrer et al., 2020; Hamilton et al., 2022; Lamas-Abraira, 2021; Neborak, 2013; Nguyen et al., 2024; Syed, 2023; Szigeti, 2022; Vanderplaat et al., 2012). Most scholarship that centres grandparents as carers relies primarily on qualitative interviews along with textual analyses of press releases and/or other government documents (Ferrer, 2015; Neysmith and Zhou, 2013). Recognizing the role of women's unpaid care, feminist scholars of gender and migration note how women from the Global South disproportionately provide caregiving; however, grandparents who migrate for the explicit purpose of providing care have not been taken up in this research (Askola, 2016; Sassen, 2002). Therefore, research on grandmothers’ multiple caregiving roles is much needed (Ferrer et al., 2020); particularly in the understudied context of H&C cases (Delisle and Nakache, 2022).
There is growing recognition and evidence that caregiving within families is not interrupted by migration and how this care work is transnational and multidirectional (Baldassar et al., 2024; Hamilton et al., 2022; King et al., 2014; Plaza, 2000; Pratt, 2012; Ran and Liu, 2021; Wyss and Nedelcu, 2018). Most scholars note that grandparent caregiving is necessary due to several different factors, including the difficulty in finding affordable childcare (Fuller-Thomson et al., 2014). Migrant grandparents’ experiences are marked by their movement across borders and navigation of different immigration regimes to support their children, which can be a fraught and uncertain process. Hamilton et al. (2022: 380) further note the ‘complex moral geographies of care’ that migrant grandparents face, given the uneven power dynamics between them and their children, who are their sponsors. A 2013 study revealed that ‘sponsored parents and/or grandparents make significant economic contributions to Canadian society as well as other non-economic ones that are often overlooked’ (Vanderplaat et al., 2012: 79). These ‘direct and indirect economic contributions’ have also been cited in recent government reports (Immigration, Refugees and Citizenship Canada, 2024c).
Cultural notions of care, including filial duties and the role of familism, play a significant role in shaping caring relations (Aggarwal and Das Gupta, 2013; Braedley et al., 2021). Zhou's (2018) multiple studies on Chinese grandparents, for example, show how family members are expected to take care of their elderly parents and relatives based on the Chinese tradition of filial piety. Similarly, Aggarwal and Das Gupta (2013) show the prominent role Punjabi grandmothers play in their families’ settlement and integration. Ferrer et al. (2020) photovoice study elaborates on how grandparents’ caregiving is not restricted to their ‘homes’ and how grandparents create ‘communities of care’ (Francisco-Menchavez, 2018) through volunteerism.
Scholarship on care from and care for grandparents highlight how migration regimes restrict transnational care, and argue that grandparent sponsorship and visa programs are gendered insofar as they ‘function to provide supplemental child care and domestic labour for immigrant families’ (Braedley et al., 2021: 39). Redmond and Martin argue that, ‘Canadian immigration policies disproportionately deny the right to family life to transnational Canadians and their children who hail from the Global South and/or who are socio-economically disadvantaged’ (2023: 766). Building on this work, our paper offers a sociolegal examination of grandparents as providers of care, and examines how care narratives are taken up in H&C assessments when the Super Visa is either no longer, never was, or is the only viable option available for grandparents seeking reunification. Studying care narratives in this context is particularly salient considering Canada's reputation as one of the most ‘caring’ immigrant-receiving countries, where humanitarianism is considered one of the hallmarks of Canadian national identity (Bauder, 2008). In addition, this allows us to consider the multiple caring relationships at play in these assessments - between the grandparents and their various family members, as well as between grandparents and the migrant-receiving state.
We understand care as ‘a species of activity that includes everything we do to maintain, contain, and repair our “world” so that we can live in it as well as possible. That world includes our bodies, ourselves, and our environment’ (Tronto and Fisher, 1996: 36). As Raghuram (2019: 621) elaborates, care is a combination of attentiveness, responsibility, responsiveness and competence. This multidirectional nature of intergenerational care frames grandparents as both givers and receivers of care, and foregrounds ‘care circulation’ wherein many local and transnational care practices are performed across time and distance (Nguyen et al., 2024; Lamas-Abraira, 2021)
Taking stock of these caring relationships is at the heart of migrant grandparents’ H&C claims. The H&C pathway is seen as a ‘safety net’, a way to introduce some flexibility and counterbalance restrictive rules which were recognized as a need by the Canadian government as early as 1967 (Delisle and Nakache, 2022). It is a discretionary tool where exceptions are made on the basis that the facts ‘would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another…’ (‘Chirwa v Canada’, 1970: 19). In other words, through H&C exceptions, applicants are asking the state and its gatekeepers to care.
Within the H&C assessment, the core components of care ethics are invoked, that is, ‘emotional motivation that enables the intentional meeting of another's needs, and forward-looking responsibility in particular relationships’ (Wrage, 2022: 17). In many ways, claims for H&C relief ask the Canadian state to grant an exception to prospective immigrants, whose applications for permanent residence have been rejected on either economic, humanitarian and family-class grounds or whose applications to stay in the country do not easily fit into either of these categories. Used oftentimes as a corrective to abusive economic logics, grandparents seeking permanent residency through H&C grounds similarly invoke the Canadian state's duty to care for those who have lived and worked in Canada and now seek to establish a permanent home.
In highlighting how care narratives are used, we foreground ‘socially unacknowledged’ reproductive work that is often made invisible and contest the economic/non-economic migration binary (Aggarwal and Das Gupta, 2013). A deeper examination of how grandparents navigate H&C applications or assessments reveals how this pathway can be viewed as a site of struggle where migrants assert their power and agency. While this tool is discretionary for decision-makers, understanding it as a strategic move for grandparent migrants to remain in Canada allows us to challenge popular depictions of migrant caregivers as ‘being abject and unknowing’ (Tungohan, 2023: 18). Examining care narratives in this context is thus useful in understanding when this strategy works for families who are seeking to reunite, and when grandparents’ caregiving and care needs deserve compassion.
Grandparent Immigration in Canada, Human-Capital Citizenship, and the Legal Landscape
While restrictions to family reunification are not new (Battista, 2022; Szigeti 2022), more recent adjustments to family reunification in Canada and elsewhere embody a renewed neoliberal emphasis on economic immigrants (Abu-Laban et al., 2022). With reduced quotas introduced in the 1990s, Ellerman (2020) attributes these changes to a rise in human-capital market fundamentalism in the 1980s. She proposes a ‘human-capital citizenship analytical lens’ to analyse these ongoing trends in grandparent migration as It captures both a distinct logic of membership and a distinct membership status. As a logic of membership, human-capital citizenship imagines citizens as bearers of human capital, and human capital as the skills and psychocultural attributes associated with high-status and highly paid positions in the global knowledge economy. As a membership status, human-capital citizenship renders the link between membership and its benefits conditional and tenuous, transforming rights into earned privileges. (2020: 2516)
Ellerman observes, in the context of Canada and Germany, that since the rise of market fundamentalism in the 1980s, the logic of family immigration is not based on the right to family life. Instead, economic considerations are increasingly applied to non-economic migration, blurring the distinctions between economic and non-economic immigration (Abu-Laban et al., 2022; Winter, 2024). This is reflected in the narrowing down of eligible family members and additional conditions. This prioritization of highly skilled workers has stratified access to family reunification in ways that reproduce social inequalities and ‘(re)engendered a hierarchization of family immigration along class, gender, and ethnic lines’ (Ellerman 2020, : 2521). Although grandparents commonly provide childcare, which allows many mothers to be employed, those who benefit the most from this caregiving are least able to afford it (Ellerman, 2020). The tenuous relationship between rights and migrants is also observed in global migration law. Oelgemöller and Allinson, for instance, reveal how the most recent international agreements on migration ‒ Global Compact on Migration (GCM) and the Global Compact on Refugees (GCR) adopted in December 2018 ‒ construct a new subjectivity of the ‘responsible’ migrant; within this logic, ‘the migrant human will be a rights-bearer because they will contribute to development in particular gendered ways’ (Oelgemöller and Allinson, 2020: 183).
The Super Visa Program and the Right to Family Reunification
Although international migration law does not establish family reunification as a right, the right to family life is recognized in major international human rights instruments. Both the GCM and GCR also include a number of actions on family reunification. The GCM, considered the most comprehensive international legal instrument on migration, includes family reunification in Objectives 5, 7, 16, namely in the context of inclusion and social cohesion, regular pathways and reducing vulnerabilities. The GCR includes family reunification within the context of solutions, specifically, ‘complementary pathways for admission to third countries’ and ‘family unity’ in the context of the reception and admission of refugees.
Despite international commitments, Canada prioritizes economic over family-class immigration. The family-class share dropped from 39% in 1994 to 22% in 2022 (Immigration, Refugees and Citizenship Canada, 2024a). Within the Family Reunification Program, PGP arrivals constituted 25% of total family class admissions between 2014–2019, and principal PGP applicants were overwhelmingly female (60%) (Immigration, Refugees and Citizenship Canada, 2024b). Celebrated by the Harper government in 2011 as the potential ‘silver bullet’ for eliminating application backlog and as ‘the most generous visa provision system’ in Canadian immigration history (Keung, 2012), the Super Visa program was characterized as a temporary pathway outside of the family-class pathway for grandparents to visit and care for their grandchildren (Yalamarty et al., 2022). Former Ministers Jason Kenney and Chris Alexander presented the Super Visa as a more flexible alternative for grandparents who want to spend a substantive amount of time with their family in Canada, but do not want permanent residency, a sentiment both claimed to have heard anecdotally (Yalamarty et al., 2022).
Initially a 2-year visa, the Super Visa required sponsors to meet minimum income thresholds and purchase private medical insurance costing at least $100,000, restricting its accessibility. The PGP program, on the other hand, resumed briefly in 2014 but annual admissions were reduced from 17,500 to only 5000 visas (Ellermann, 2020). In addition to quotas and income requirements, a number of health risks can render applicants medically inadmissible. As Szigeti (2022: 12) argues, while these ‘rational’ tools are ‘individually reasonable, the cumulative effect is a near-strangulation of immigration by elderly family members: a three- or four-fold over-insurance against any type of “economic burden” posed by immigrants or immigrants’ families’.
In their most recent evaluation of the family reunification program, Immigration, Refugees, and Citizenship Canada (IRCC) confirmed approval of 133,406 Super Visa applications between 2012–2019, with the majority of applicants being separated, divorced, or widowed women (Immigration, Refugees, and Citizenship Canada, 2024b). The 2-year limit imposed by the super visa reinforced grandparents’ temporariness, rendering them ‘flying grannies’ who had to undertake onerous and expensive transnational journeys every 2–3 years to reunite with their families in Canada. In July 2022, changes to the Super Visa program increased the length of stay to 5 years per entry and allowed sponsors to use health insurance from non-Canadian providers to ease costs. However, as Perzyna et al. (2022) note, these changes have made little impact on backlogs and processing delays during and after the COVID-19 pandemic, with processing times in 2024 listed as averaging 2 years (Cho, 2025). As of writing, PGP sponsorships are paused for 2025 and processing times for pending PGP applications have increased from 24 months to 36 months (Keung, 2025).
The Super Visa is also criticized for rendering grandparent reunification as permanently temporary. As Bélanger and Candiz (2020: 3473) argue, while Super Visas may be used by families who want to fill care needs, the focus on reducing waiting times ‘depoliticized the right to family reunification and institutionalized temporariness’. Grandparents on Super Visas are not allowed to work in the formal labour market which limits them socio-economically. Furthermore, the Super Visa reinforces racial hierarchies in migration, as noted by a Ontario Council of Agencies Serving Immigrants (OCASI) report that shows a higher approval rate for applicants for super visas from the US and Europe compared to countries in the Global South (OCASI, 2012; Chen and Thorpe, 2015: 92). Lastly, like other family-class pathways, the Super Visa allows the state to offload a number of social welfare-related responsibilities, such as providing healthcare, to individual sponsors. This creates a system of structured dependency by placing the responsibility to take care of parents on their adult children while giving the parents minimal state entitlements (Ferrer et al., 2020).
H&C Grounds and Applications
In Canada, family reunification is an explicit policy objective that was formally established by the 1976 Immigration Act and reiterated in Section 3d of its successor, the IRPA. Canada was one of the invited ‘champion countries’ to advocate for the implementation of the GCM. Yet migrants labelled as ‘low-skilled’, lacking legal status or financial resources, often have few pathways to reunite with family. For them, H&C grounds are often the last resort. While the primary requirements for entry are set out in the IRPA, H&C grounds assessment is a discretionary power that allows the Minister through a delegate (e.g., H&C officers) the authority to grant permanent resident status or a temporary resident visa to those who would not otherwise qualify in an immigration class (Immigration, Refugees and Citizenship Canada, 2020).
This discretionary device is generally seen as a way to allow for some flexibility. As Szigeti (2022: 23) notes, this ‘has been used from time to time to grant permanent residence to grandparents who are the de facto primary caretakers of their grandchildren’. There are several opportunities for H&C grounds to be considered within the IRPA, including when appeals are made (IRPA 67.1c), to delay a removal order (68.1), when the Minister independently considers a person's circumstances (IRPA 25.1), or when a foreign national explicitly requests one through an H&C application. Regardless, an H&C assessment is regarded as an ‘exceptional measure’ and not an ‘alternative means of applying for permanent residence status in Canada’ (Liew and Galloway, 2015: 394).
H&C reviews are conducted in two stages, starting with the applicant requesting an exemption given their circumstances. After a positive first assessment by a Ministerial delegate, the H&C officer determines whether the applicant is admissible and meets all other IRPA requirements (Fadgen et al., 2014). H&C application cases are generally difficult to win. The onus is on the applicant to show that they meet very specific criteria, such as their establishment in Canada, and unusual and undeserved hardship faced by them (Delisle and Nakache, 2022). Unsurprisingly, in 2023, people relying on H&C grounds accounted for only 3% of all permanent residents (Immigration, Refugees and Citizenship Canada, 2024). While the number of H&C applications made has increased, refusal rates are also increasing (Delisle and Nakache, 2022). Most of the operational law regarding H&C assessments is within Ministerial Guidelines, which are not legally binding and so cannot be appealed. The discretionary nature of this assessment process makes decisions highly subjective and unpredictable (Delisle and Nakache, 2022).
Following ‘Baker v Canada’ (1999), the federal government amended IRPA so that the best interests of any child (BIOC) is now central to H&C decisions (Blokhuis 2020). As noted in the operational instructions and guidelines (Immigration, Refugees and Citizenship Canada, 2016): In assessing H&C submissions, the decision makers must be “alert, alive and sensitive” to the best interests of the children (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817) and should bear in mind that “[c]hildren will rarely, if ever, be deserving of any hardship” (Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475, [2003] 2 F.C. 555). As children may experience greater
Methods
This study uses textual analysis, which understands texts to be related to larger political and social discourses (Fairclough and Fairclough, 2015) to investigate how care narratives are used in the courts when determining the inclusion of elderly parents and grandparents as migrants. Relying on CanLii's database and the following keywords: ‘super visa’ AND grandparent AND care, from January 1, 2012 to January 1, 2021, our keywords were chosen iteratively based on initial interest in grandparents using Super Visas. A total of 171 cases were manually coded, with attention to how care-based arguments appeared in court decisions. Although 33 cases involved grandparents who had used Super Visas, all of the obtained cases mentioned the Super Visa either as an option that grandparents had considered but could not avail, or an option they were encouraged to consider in the case of a dismissal. In addition to the applicant's country of origin, we noted whether care obligations towards (a) grandchildren, (b) grandparents, (c) adult children, and (d) other family members were recorded. Cases were primarily drawn from the Immigration and Refugee Board of Canada (161), but also included some from the Federal Court (9) and one case from the Supreme Court of British Columbia.
The main objective of the textual analysis was to understand how care-based arguments and care narratives were used by all parties in decisions. While coding care narratives, we noted that most references to care work were made in the context of H&C grounds and as such, H&C assessments became the focus of this paper. The specific cases mentioned in the analysis below illustrate how the treatment of grandparents’ care and care needs reflect the logic of human-capital citizenship via its relationship between membership and benefits, in this case, family reunification. Broadly, they also reveal that despite the increased emphasis on ‘easy-to-apply’ temporary pathways, grandparents are seeking permanent residence.
Given the large number of cases that could be relevant to a study on grandparents’ care needs and caregiving, we limited our analysis to cases publicly available through CanLii. Only a fraction of IRB decisions are publicly accessible, so our findings should not be seen as fully representative. Furthermore, we included all cases that invoked H&C grounds, whether they were explicit H&C applications or H&C considerations such as those made during an appeal of a permanent residency sponsorship application. Our search did not include alternate keywords like ‘supporting’ or ‘assisting’, which might also imply care. Lastly, discerning all parties’ different care-based arguments through only court judgments and not party submissions also has limitations. Despite these methodological shortcomings, the findings allow us to gain insights on care in the context of migrant grandparents seeking to join their families in Canada. Given the prominence of human-capital citizenship in settler-colonial states, our dataset shows that grandparents are judged on the basis of their potential to perform unpaid childcare and other care work insofar as it would allow their adult children to work or pursue education.
Findings and Analysis: Grandparents Carving Out the H&C Pathway with Care
Our analysis shows that there are multiple ways human-capital citizenship is reflected in narratives of care (Table 1). First, cases based on grandparents’ own care needs were granted H&C relief only in very exceptional cases, when judged as especially necessary. Second, the majority of grandparent applicants relied on arguments based on their potential to care for their grandchildren so that their children are able to be more successful in their careers, as opposed to their own care needs. 101 of the total 171 cases mentioned grandparents’ care relationships with their grandchildren. Of the total cases that were successful (30), more than half (17) noted grandparents’ care work for grandchildren. With limited perceived human capital, grandparents had to prove they are able to care for their grandchildren in order to allow their children to utilize and/or invest in their human capital. These arguments were primarily made in the context of the BIOC and hardship factors, which, since ‘Baker v Canada’ (1999) arguably allow more room for grandparents to seek H&C relief based on their caregiving potential. Many sponsors made the claim that if they had care from their grandparents, they would be able to work full-time and/or invest in their education. In other words, both the sponsor children and grandparents adopted the view of citizens as bearers of human capital and ‘entrepreneurs of their becoming’ (Zimmermann, 2006: 468).
Care-based arguments in cases involving H&C grounds.
However, the use of care-based arguments is not always determinative. Both the Ministerial Guidelines and case law reiterate how the BIOC is only one of the many factors involved in the ‘global assessment’ that is required by H&C officers. Accordingly, of the 101 cases that made claims based on grandparents’ potential to perform childcare for grandchildren, only 17 were allowed. The low success rate of these cases demonstrates how restrictive the H&C pathway is and how grandparents’ caregiving potential alone does not automatically warrant special relief. Moreover, this global assessment of factors does not equate to an assessment of an evaluation of all competing factors on an equal footing. As Delisle and Nakache note in their study of H&C cases in the context of vulnerability: ‘the weight given to the different factors is at the officer's entire discretion, which leads some observers to conclude that the criteria for assessment in an H&C application are “highly malleable”’ (2022: 6). Similarly, although the Supreme Court of Canada in ‘Baker v Canada’ (1999) unequivocally said that when a person subject to deportation has Canadian children, the BIOC should be given ‘substantial weight’ in immigration proceedings, there is still significant variability in this weight (Delisle and Nakache, 2022: 11).
While a comprehensive discussion of the BIOC principle is not within our scope, suffice it to say that the BIOC is a key principle from the Convention on the Rights of the Child (1989) to which Canada is a party. It gives children the right to have their best interests be a primary consideration for all actions or decisions in the public and private spheres. However, as mentioned prior, ‘the codification of the principle of “best interests of a child” into the legislation does not mean that the interests of the child outweigh all other factors in a case’ (Immigration, Refugees and Citizenship Canada, 2016). Although Canadian courts have urged decision makers to take the BIOC into account in H&C decisions, BIOC is not seen as having primacy over all other factors (Delisle and Nakache, 2022).
Furthermore, the devaluing of grandparents’ caregiving in these cases echoes human-capital citizenship's logic of membership, whereby citizens’ desirability is based on human capital or ‘psychocultural attributes’ and skills associated with ‘high-status’ jobs and high wages. Our data was replete with cases where decision-makers dismissed grandparents’ caregiving as merely ‘unpaid babysitting’. The majority of the cases referenced the option of relying on the internet or other modes of communication and visiting temporarily through the Super Visa as alternatives to family reunification. The presence of other family members, specifically other grandparents, was also mentioned as a mitigating factor. Similarly, the option of a Super Visa for temporary visits was also weighed negatively in the overall H&C assessment, as it was often considered an option that could offset applicants’ hardship if their assessment was refused (Rai v Canada (Citizenship and Immigration), 2017). In so doing, both grandparents’ caregiving and grandchildren's or other family members’ care needs were devalued.
For instance, in ‘Begum v. Canada’ (2017) a 43-year old Canadian citizen who had immigrated from Bangladesh appealed the refusal for permanent residence for her parents and siblings as she did not meet minimum necessary income (MNI) requirements and challenged the constitutionality of this requirement under Section 7 and 15 of the Charter. She was sponsored by her husband and had five children, all under the age of 18, in Canada. Having been diagnosed with depression, Saju Begum argued that the presence of her family, including her parents, ‘would alleviate childcare responsibilities, provide emotional and physical support, improve her wellbeing, and provide her with the opportunity to participate in the labour market and earn a higher income’. Furthermore, it was argued that since women, people with disabilities and racialized people experience economic and income disparities in Canada, the MNI requirement adversely impacted Begum and creates a distinction based on the enumerated grounds of race, sex, and disability. However, despite the evidence presented by expert witnesses and interveners, including the OCASI and South Asian Legal Clinic of Ontario, Begum's appeal was dismissed by the Immigration Appeal Division (IAD) because the evidence did not demonstrate a causal connection that produced a disproportionate impact or an adverse effect. On judicial review and appeal, the Federal Court and the Federal Court of Appeal agreed with the IAD. The burden of proof had not been met for the Section 15 claim, and based on precedents, the appellant's rights to liberty and security are not engaged for the Section 7 claim (Szigeti, 2022).
Arguments on the constitutionality of the MNI and other market-based criteria aside, ‘Begum v. Canada’ allows us to dig deeper into how instrumental care narratives can both adopt and challenge the human-capital citizenship's notion of citizens as bearers of human capital and the use of market-based criteria. Given the appellant's claim that having family in Canada would improve her chances of a higher income and work full-time, this case shows how, even when challenging the constitutionality of income requirements, appellants and applicants have to adopt the same logic to justify their need for care from parents. It is also important to note that a significant portion of the cases (72 of 171) were related to MNI requirements. Using wages as a metric of productivity in this way, as Ellermann (2020: 2518) examines, ignores both the economic importance of unpaid reproductive labour and the fact that ‘wages are not negotiated in a meritocratic vacuum’. In addition to reflecting a human-capital citizenship logic, the case law examined also echoes human-capital citizenship's notion of membership status, whereby rights and other citizenship benefits are earned, not bestowed. This is evident in the detailed accounts of grandparents’ caregiving practices, including competing multiple caring obligations.
Given that the onus is on the applicant to provide evidence, applicants have to narrate their caregiving to show the closeness of their relationship with the grandchildren and the grandchildren's dependence on them for basic needs. For example, in
Puddunan v. Canada (Citizenship and Immigration) (2019)
, a case involving a former live-in caregiver trying to sponsor her mother, a detailed account of the grandmother's care work and relationship with her grandchild is made, and the appeal is allowed: When asked to describe her relationship with Keith, Elizabeth testified that she loves her grandson, and he also loves her. In the mornings, she gets him dressed, prepares his food, and takes him to the school bus. While Keith is at school, she does a 30-minute walk, cleans, and does laundry. His school day finishes at 3:30 p.m. and she meets him at the bus stop and takes him home. She helps him with his reading and his homework. Normally, they cook together. If it is not too cold, they go outside to the park to play. Keith has lots of friends, and he plays with them at the park. Elizabeth “can throw the ball” and they all play together in the park. She also takes him to the community centre for his swimming lessons, and on Sundays, she takes him to church. Keith sometimes goes over to a friend's home, and sometimes invites friends to their home. Keith goes to bed at 9:00 p.m. Elizabeth gets him ready for bed. She makes sure that he washes his face and his feet, puts on his pyjamas and says his prayers before bed.
Furthermore, such detailed accounts also reveal the gendered nature of care work. While there were some exceptions, grandmothers and their representatives tended to make most of the arguments based on caring for grandchildren. Decision-makers were more likely to be receptive to care-based arguments made in favour of grandmothers. It appeared natural for grandmothers to be engaging in care practices. It was relatively rare for grandfathers to make care-based arguments with the same level of detail and corroborating evidence; when they did, their caring competency and skills were challenged. In fact, in one case where the sponsor child was making such a claim for her father, the judge failed to see the grandfather's carework as essential to the best interests of his grandchildren: While I accept that it would likely be beneficial for any grandchildren to have a loving grandfather play a role in their day-to-day lives, it was not clear how involved the Appellant would be in their lives. He also said he wanted to assist his spouse with her business and his daughter also wanted him to attend to house maintenance issues. (Wei v Canada (Citizenship and Immigration), 2018)
While there were differences, both grandmothers and grandfathers often cited conflicting care obligations which further highlight the hard work that grandparents have to do to prove that they have earned rights and membership in H&C assessments. In ‘Massey v Canada (Citizenship and Immigration)’ (2017), for example, both grandparents were juggling multiple caring obligations in India and Canada – their son in Canada, their grandchild and son in India, and their younger siblings. In another case, a mother travelled between India and Canada to take care of her two daughters. Grandmothers, in particular, felt torn between conflicting caring obligations and often flew back and forth to help with pregnancies and illnesses (Rehana v Canada (Citizenship and Immigration), 2014; Jashodaben v Canada (Citizenship and Immigration), 2015; Nubour v Canada (Public Safety and Emergency Preparedness), 2015).
‘Flying grannies’ navigated their families’ shifting care needs, sometimes to their detriment as in the case of grandmothers unable to fulfil their residency obligation because their husbands wanted to return to their home countries or because they had to take care of family members ‘back home’. In ‘Cherifi v Canada (Public Safety and Emergency Preparedness)’ (2016), a grandmother who was appealing a removal order for not meeting the residency obligation had stayed in Morocco for longer than intended to take care of her husband who had been hospitalized for his heart condition. She stated that she was waiting for him to give her an ‘o.k.’ to be able to return to Canada. Indeed, as Aggarwal and Das Gupta (2013) noted, ‘grandmothering’ is hard work and despite the construction of grandmothers as dependents, grandmothers often take pride in their contributions. The findings demonstrate how ‘women from the Global South disproportionately shoulder the burden of maintaining the well-being of separated family members due to gender divisions in caregiving responsibilities’ (Schmidt et al., 2022: 304).
Also significantly, judges and immigration officers both used the absence of care-based arguments to deny grandparents the right to family reunification. In other words, if grandparents or their representatives did not make any care-based arguments toward grandchildren, then this was not viewed favourably for the applicants (Seedhar v Canada (Citizenship and Immigration), 2015). Thus, H&C exceptions tend to favour the ‘ideal’ grandparent who is able to provide evidence and make care-based arguments that detail how they are able to juggle multiple caring obligations, illustrating how their care is essential for their grandchildren. However, even if the grandparent is able to do all of this, H&C relief is not guaranteed.
The fact that grandparents’ caring skills are challenged in these cases highlights the increasing prevalence of a tenuous relationship between membership status and benefits. Not only is the closeness between grandparents and grandchildren scrutinized on the basis of how regularly they communicate, but so is grandparents’ caring competence. For instance, in ‘Rahman v Canada (Citizenship and Immigration)’ (2015), a grandfather received deportation orders for not leaving right after his refugee claim was denied. His son in Canada had a 7-year-old child diagnosed with autism and needed 24-h care; his son claimed that having the grandparents there would help him and his wife. However, the judge decided that the ‘elderly parents’ would only be able to provide ‘unpaid babysitting and perhaps transportation…’. The judge reasoned that since the grandparents were elderly and have no experience in taking care of children with specialized needs, they would not be able to provide such care for their grandchild: ‘At best they would be babysitters, providing care and services that would free up time so that the appellant and his wife could pursue other priorities’. Since many other families in Ontario also lack immediate access to subsidized care for children with special needs, this family's circumstances were not seen as exceptional enough to qualify under H&C grounds.
‘Kanthasamy v Canada (Citizenship and Immigration) (2015)’ significantly impacted H&C assessments by requiring all relevant factors to be considered as a whole and for immigration officers to prove that they engaged with the BIOC (Barbra Schlifer Commemorative Clinic, 2018; Bailey, 2017). This was a welcome change for many legal advocates since prior standards, such as those established in ‘Chirwa v. Canada’ (1970), were highly restrictive (Justice for Children and Youth, 2025). However, we found that even post-Kanthasamy, judgments have often referred to the higher threshold test that comes from ‘Chirwa v Canada’ (1970), which is seldom met. BIOC claims can be offset by many factors such as the option of the super visa (even in some cases when the very reason they were denied sponsorship would make them inadmissible for a super visa), the presence of grandparents or other family members in the country, and the option to communicate through the Internet. In short, if any other means are available to take care of these grandchildren, those are preferred over grandparents’ caregiving (Tosunovska v. Canada (Citizenship and Immigration) 2017). This echoes the observation that ‘the not-so-subtle message is that if there are any other children in the world who can take care of the elderly parents, they should be the ones to do so, not the would-be sponsoring children in Australia or New Zealand’ (Szigeti, 2022: 20).
Taken together, the jurisprudence suggests that the way care-based arguments are used reflects human-capital citizenship's logics that impose a conditional relationship between membership and benefits such as family reunification. Applicants and their advocates often adopt a human capital logic to claim that their caregiving is essential for immigrant families. Care is devalued and often dismissed as ‘unpaid babysitting’, which reinforces the prevalence of human capital and skills associated with high status and higher wages. However, the absence of care-based arguments is a negative consideration. The onus is on grandparents to provide detailed accounts of around-the-clock labour intensive care to show that their caregiving is essential for the BIOC.
Thus, the ideal caring relationship between grandparents and grandchildren under H&C grounds is unidirectional, highly involved, and labour-intensive, reinforcing gendered notions of care work and hierarchies in family immigration along the lines of race, gender, class and other vectors of social location (Ponniah v Canada (Citizenship and Immigration), 2019). And even then, it may not warrant special relief. Whether these care-based arguments are used for grandparents’ care needs or care skills, the H&C pathway becomes a site of struggle for immigrant families to demand their care needs are met through family reunification and kinship caring.
Furthermore, the use of instrumental narratives of care serves to solidify the role of decision-makers, including H&C officers, as gatekeepers. Their discretionary power is often used subjectively and inconsistently, making it difficult to discern how effective care-based arguments are in seeking H&C relief. These gatekeepers decide when the caring relationship is present and whether the physical presence of the grandparents facilitates this relationship. Their decisions do not account for everyday realities of care, instead reinforcing a limited notion of care based on stereotypes around race, gender, culture, class and other vectors of social location.
Conclusion
Given the 10-year time limit on the Super Visa and the unreliable nature of the PGP, grandparents often turn to H&C claims ‒ a discretionary tool for ‘exceptional’ cases ‒ as a last resort. Our examination of H&C cases involving grandparents who relied on, considered or were referred by judges and immigration officers to apply to the Super Visa highlights how grandparents and their advocates ground their claims in a specific discourse of care in hopes of highlighting the benefits of extended family reunification. At the same time, care work offered by grandparents remains undervalued in Canadian immigration jurisprudence, where family separation is considered ‘a reality of immigration’ (Mohtashami v Canada (Minister of Citizenship and Immigration), 2015). Grandparent reunification is thus not prioritized; this lack of prioritization is often chalked up to inevitabilities of transnational family separation.
Ellerman's ‘human-capital citizenship’ lens helps us analyze the instrumentalization of these care discourses in H&C evaluations both for the grandparents and gatekeepers. For Ellerman, economic considerations have and continue to inform family migration, and the conceptualization of citizens as ‘bearers of human capital’ is used to evaluate the potential economic contribution of sponsored family members. This framing of potential citizens works to celebrate Canada as a ‘liberal state that supports family reunification’ (Bhuyan et al., 2020: 570), while simultaneously framing sponsored dependent family members as ‘the reverse of the ideal neoliberal immigrant subject’ (Abu-Laban et al., 2022: 180). Our study of H&C jurisprudence demonstrates that care-based arguments used by grandparents, their advocates, and gatekeepers reflect this logic, ultimately reinforcing a conditional relationship between membership and benefits. What separates these framings of care in H&C assessments from those in parliamentary discussion (Yalamarty et al., forthcoming) is that the arguments made by grandparents and their advocates are then evaluated according to predetermined, yet also subjective, criteria about what grandparent care
Considering Canada's ongoing child care deficit, it is evident that the economic mobility of migrant families remains contingent on the unpaid care work of grandparents, oftentimes ‘flying grannies’, who arrive through the Super Visa program. However, given their perceived lack of significant contribution, grandparents are seen as an ‘experimental category for [family class] reform implementation’ (Bélanger and Candiz 2020: 3480). As a result, grandparents exist in a space of temporary reunification reflected by the state's continued prioritization of ‘bearers of human capital’ over meaningful family reunification. This logic, however, fails to account for ‘the varied and complex forms of transnational generational support…that include complex webs of relationships across generations, locations, and different stages of the life course’ (Wang and Hari, 2024: 113–118). Centring the carework of grandparent migrants allows us to foreground and critique the ways in which neoliberal human-capital citizenship logics underpinning Canadian immigration render grandparent migrants as temporary and family reunification as conditional. Rather than reform the Super Visa program or H&C assessments, we contend that care ‒ both from and to grandparents ‒ must be valued through a reinvigorated pathway for permanent grandparent reunification.
Footnotes
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Canada Research Chairs.
