A court has overturned an earlier ruling of an immigration department that decided in favour of her deportation, and ordered a fresh review for Kaur under the supervision of a different immigration officer.

Gyan Kaur, a mother of four, came to Canada where all her children were based, in 2001 after her husband died. While two of her four children are Canadian citizens, two others are in Canada illegally after their own claims for refugee status were denied.

Kaur had claimed refugee status in February 2002 "on the ground that she feared persecution because of her Sikh nationality." That application was denied in January 2004, and since then she has remained in the country through several appeals to stay on humanitarian and compassionate grounds, the Toronto Sun reported.

However, all these applications have been denied by authorities. In September 2009, Kaur filed another application to stay in Canada on humanitarian grounds.

The request was denied and the immigration department ruled that if Kaur wanted to stay she should go back to India and apply through proper channels.

"The difficulties she will face will flow directly from her wish to remain illegally without proper documentation in Canada; it is as simple as that...," read the ruling. However, in a court ruling that overturned the decision, Justice Marie-Josee Bedard ruled that the immigration department had not given enough weight to the hardships that the elderly woman might face if she returned to India, where she has no family remaining.

"The officer reached his conclusion on hardship on the basis of one consideration only: the hardship that she might suffer is the result of her own action," wrote Bedard.
Bedard has ordered a new review for Kaur in August under the supervision of a different immigration officer.

The government, however, is not happy with the decision. "In this case, we defended the decision of our immigration officer before the court," said Alykhan Velshi, a spokesman for Immigration Minister Jason Kenney.

"Beyond that, I can't comment on any specific immigration case. That said, it's human nature to respond to incentives. Rewarding illegal immigration only encourages more of it".