Things to Consider if you are being Sponsored as a Spouse

Co-habitation is a pre-requisite if you are on Spousal Sponsorship. In order to qualify for permanent resident status under this program for couples (married or conjugal) who do not have a common child(ren) or have been in a relationship for less than a year, they must demonstrate that they have lived with their spouse or common-law partner for a minimum of two years from the day of landing. It is imperative to keep a full track of the dates where you have lived together to establish that you are eligible.

Sponsoring Common-Law partner If you Are Legally Married

We were recently contacted by a person who wanted consultation on a complicated case. She was legally separated to her husband but had not yet undergone a divorce. She wanted to sponsor her common-law partner to Canada with whom she had been in a genuine relationship from more than a year. We assisted her to submit the Spousal Sponsorship Application, a Sponsorship Agreement and Undertaking was also applied. The Canadian Immigration law does not curtail a person’s right to immigration depending on their past marital status. We helped our client through a complicated case and successfully represented her.

Spousal Sponsorship – A Few Things to Know

Despite the condition on Spousal Sponsorship that binds you to stay with your spouse or common-law partner for a minimum of 12 months in order to qualify for Permanent Residency, the Canadian Immigration law has made provisions for those who might not happen to fulfil this conditions due to conditions beyond their control. In case of death of the spouse, or domestic violence, drug abuse or torture, the spouse or common-law partner is free to leave the other person without harming their possibility of becoming permanent residents. If a victim of violence, it is highly important to report the case to a women’s Helpline or to a police station. You must have relevant documents to establish that you were a victim of domestic abuse. In case of a partner’s death, the death certificate must be enough to establish the facts.

Even in cases where spouses or common-law partners have abandoned their other partner, the Canadian Immigration Law has supported and accommodated the individuals who had to suffer because trauma. However, it is important to keep all medical records and/or police records to establish the truth of your account.

It will be more convenient and reassuring to hire a professional lawyer to deal with the odds of this kind of situation.

Spousal Sponsorship Rejection

When you Spousal Sponsorship Application is refused, you are informed through a letter that also indicates that you can appeal against the decision before the Immigration Appeal Division (IAD). Since this appeal is time-bound, it has to be filed within 30 days from the day the refusal letter was received.

Spousal Sponsorship Appeal

The Minister of Immigration, Refugees and Citizenship Canada will produce the appeal record within 120 days from the date the request of the appeal was received. The hearing of these appeals is done with speed so that applicants may receive quick results. If the Immigration Appeal Division feels does not feel the relevance of a formal hearing, the case is instantly forwarded to Alternative Dispute Resolution (ADR) which involves the applicant arguing for his/her case informally to the Member of the Immigration Appeal Division and the Minister’s counsel. The scheduling of the Alternative Dispute Resolution (ADR) may take roughly around 3-6 months. The applicant’s lawyer can also ask for ADR if they want the proceedings to be held without formal hearing.

If the ADR is found to be not suitable to deal with the case, an appeal is responded with a formal hearing on the basis of which the Immigration Appeal Division determines if the appeal has to be accepted or denied. Once the appeal is accepted, the application process will be advanced further by Immigration, Refugee and Citizenship Canada.  The scheduling of a formal hearing can take almost around 1 year.

Appeals should always be made when you are quite sure that you have a documents or verifiable proof to address the objections raised against you.

In case, any applicant does not want to appeal before the IAD, they can also re-apply for Spousal Sponsorship. Your re-application must include explanation for the objections that were raised against you earlier. The re-application needs to be done to explain the incongruities left in the earlier file. Re-applying is a faster process than making an appeal.

Spousal Sponsorship can be best handled by an experienced lawyer who would understand the nitty-gritties of the Canadian law and ensure that every little step in taken in the right direction and at the right time. You can feel utterly lost without a professional guidance when it comes to legal issues. Whether you want to re-apply or make an appeal, it is always better to hire a professional assistance for a meticulous submission and representation.

Spousal Sponsorship Appeal Refusal

In case you face refusal on your Spousal Sponsorship appeal, you can make an appeal to the Federal Court of Canada. The Immigration Appeal Division (IAD), Refugee Appeal Division (RAD) and Federal Court of Canada are recognized bodies to hear appeals on issues related to immigration, such as issuance of removal order, a sponsorship application getting rejected, residency obligation violation, or problems related to errors in application forms leading to their rejection. This is called a Judicial Review and is very different from an appeal.

In a Judicial review, you cannot submit new evidence to the court. The IAD submits a report and you are supposed to argue against it. A Judicial Review has to be filed within 15 days from the date you received a decision on your spousal sponsorship application.

The responsibility of granting or refusing visa does not lie with the Federal Court but it takes the crucial decision on the authenticity of an immigration officer review as per the Canadian Immigration Laws. Whenever a decision of an immigration officer is found wrong, the case is sent to be re-evaluated by a different immigration officer. However, if the Court agrees with the immigration officer’s decision, you will have to stick with the final stance of the Court.

It is always better to hire an immigration lawyer for smooth processing of the application (or the review).

What is In-Canada Spousal Sponsorship Application?

In-Canada Spousal Sponsorship Application is necessary if your partner is a foreigner living in Canada and wants to be sponsored to be a permanent resident in Canada.

For making an in-Canada Spousal Sponsorship Application, you should –

  1. Be a permanent resident of Canada, or a Canadian citizen
  2. Be at least 18 years old

You can sponsor –

  1. A spouse
  2. A common-law partner (conjugal partner) living with you in Canada

You can sponsor your spouse or partner provided your foreign-based partner maintains legal status in Canada. It is imperative that your spouse or partner stays in Canada on a work permit, study permit or a visitor visa. Then you can submit an in-land Spousal Sponsorship Application. If this request is approved, your partner will get his/her permanent residency status and can later apply for Canadian Citizenship. It is necessary in these cases to prove that your relationship is a genuine one. In-land Spousal Sponsorship Applications can sometimes get very complicated as their processing works differently than an overseas sponsorship application. A refusal on an in-land Spousal Sponsorship Application does not guarantee any provision for appeal, and can thus prove to be detrimental.

It is advisable to consult an experienced immigration lawyer when making an in-land Spousal Sponsorship Application as it works in unique way and can get very complicated. There can be many reverse outcomes that you are not prepared to face and are not fully equipped to handle.

Spousal Sponsorship – Know who is recognized as a spouse in Canada

Canadian Immigration is drafted in a way so that it can facilitate Canadian citizens and permanent residents to sponsor the immigration of their foreign national spouses, common-law partners and conjugal partners to Canada including same-sex partners. If you are a Canadian citizen or permanent resident living in Canada, you are permitted to sponsor your spouse along with any dependent child or children for immigration to Canada.

Under the Canadian Immigration Law, the other partner in a legal marriage is acknowledged as a spouse. The immigration process varies for Spousal Sponsorship in two ways –

  1. If a couple is married in Canada, the applicant must establish the marriage as legal as per the established provisions of law, by submitting a marriage certificate issued by the competent authority of the territory where the marriage was solemnized.
  2. If the couple is married outside Canada, the marriage must be legally recognized in the country where the marriage took place. If the marriage happens to have taken place in a consulate or an embassy, it should be legally recognized by the country where marriage was solemnized, no matter what country the embassy represents. In both cases, the marriage should be considered legal by the Canadian law as well.

For making a Spousal Sponsorship Application, you should –

  1. Be a permanent resident of Canada, or a Canadian citizen
  2. Be at least 18 years old.
  3. Be married or in a common-law/conjugal relationship for at least one year.
  4. Must be staying in Canada/ or show the intention of making a return eventually.
  5. Must be financially independent and demonstrate that you will take care of the finances of your partner.
  6. Demonstrate that you have never taken any social assistance in Canada, except in cases of disability.
  7. Not have received removal order, departure orders or any such orders
  8. Demonstrate that you have no criminal charge against you, and/or a pending case in court, and/or a pending loan repayment.
  9. Have paid your income tax regularly.
  10. Must not have sponsored any relatives in the recent past with a case lying pending.

Apart from this, in order to make a Spousal Sponsorship, you must establish that your relationship with your spouse or partner is genuine and honest. You will have to submit verifiable documents to substantiate your claims.

You are advised to take professional help for making Spousal Sponsorship Application. There can be many reverse outcomes that you are not prepared to face and are not fully equipped to handle. Only an expert can guide you through an otherwise complex process.

Family Class Sponsorship – a special category

Anyone who has immigrated to Canada dreams of getting re-united with the members of his/her family on the Canadian soil. Making this a vision, Canadian immigration law are committed to family unions and have created many such provisions so that individuals do not have to suffer because of estrangement from their loved ones. There are diverse arrangements under which different class of family members living abroad may be sponsored by a Canadian immigrant.

Canadian citizens or permanent residents can, therefore, sponsor their spouse (common-law partner/conjugal partner/same-sex partner), parents, grandparents, siblings to immigrate to Canada.

Section 117 (1) H of the Immigration, Refugee and Citizenship Canada permits a permanent resident of Canada or a Canadian Citizen to sponsor another family member if the said individual does not have any other family member including a spouse or a common-law partner who are permanent residents or citizens of Canada. Therefore, the individual must not have any of the family members as mentioned below living as permanent residents of Canada –

  • Spouse/common-law partner/conjugal partner
  • Child
  • Parents
  • Siblings
  • Aunt or uncle
  • Niece or nephew
  • Grandparents

This is a special category to unite families and might have unique requirements. Make sure that you fulfil all the requirements to qualify to make such an application.

 

 

Family Class Sponsorship

We are often approached by people wondering if they can sponsor their child if the child is above 20. Well the answer is yes!

A child or children of the sponsor can immigrate to Canada if they qualify as dependents under the Family Class Sponsorship Program.

If an individual is over 22 years, or married, or in a common-law partnership, he/she should be able to prove continuous financial dependence on the parents or be continuously enrolled in full-time studies. An individual of above 22 years can also qualify as a dependent if –

  1. He/she is financially dependent on the parents and pursuing some full-time post- secondary education, or
  2. He/she is financially dependent on the parents due to some physical or mental condition.

Sponsorship for Common-Law Partners or Conjugal Partners

If a couple has been living together in a conjugal relationship for at least one year even without legal civil or religious ceremonial marriage, they are recognized as common-law partners including same-sex partners. The Canadian law considers such couples as legally qualified for immigration if they can provide proper proof of living together continuously for at least 1 year. The immigration officers, in these cases, make a full enquiry into the genuineness of the relationship and it may take lot many documents and proofs to establish the integrity of the relationship.

Spousal Sponsorship Refusal

People who have become Canadian citizens or permanent residents of Canada would love to be reunited with their spouses or partners living abroad. In such cases, permanent residents of Canada or Canadian citizens are legally permitted to sponsor their family members. They can apply for Spousal Sponsorship. However, a lot of times these applications meet with rejection from the immigration office for various reasons ranging from incorrect information to the applicants’ inability to provide documents or validation.

Do not fret! If rejected, you can submit an appeal to the Immigration Appeal Division (IAD) to review your file. This is time-bound process and an appeal has to be filed within 30 days from the day the refusal letter was received. The Minister of Immigration, Refugees and Citizenship Canada (IRCC) will further produce the appeal record within 120 days from the date when the appeal was received. The hearing of these appeals is done with speed so that applicants have quick results. In cases where the Division does not feel the need to of a formal hearing against an appeal, the case is instantly forwarded to Alternative Dispute Resolution (ADR) which involves the applicant arguing for his/her case informally to the Member of the Immigration Appeal Division and the Minister’s counsel. The applicant’s lawyer can also ask for ADR if they want the proceedings to be held without formal hearing.

In all other cases, an appeal is responded with a formal hearing on the basis of which the Immigration Appeal Division determines if the appeal has to be accepted or denied. Once the appeal is accepted, the application process will be advanced further by Immigration, Refugee and Citizenship Canada.

Another way of dealing with a spousal sponsorship refusal is to re-apply for it. It is better to consult a lawyer to deal with rejection or re-application on a Spousal Sponsorship Application. These applications demand high level of consistent information about both the sponsor and the sponsee. Any irregularity in this regard can prove to be detrimental to your chances to make it to Canada as a family.

Spousal Sponsorship and Conditional Permanent Residence

Sponsored and common-law spouses and conjugal partners (including same-sex partners) must live in a legitimate relationship with their sponsor for at least 2 years from the date of their acquiring their Canadian Permanent Residency.

This condition applies to the couples who do not have a common child and who meet the condition of (i) having been married for two years or less, or (ii) have been living in conjugal relationship with the sponsor for two years or less or (iii) have cohabited in a common law relationship for two years or less.

However, the condition does not apply in any of the cases where the couple (i) has been married for more than two years, (ii) has been in a conjugal relationship for more than two years or has lived in a conjugal relationship for more than two years or, (iii) have children in common.

If the applicant couple does not remain in the relationship for the said period of time, their Canadian Permanent Residency will be revoked. However, there are certain exceptions in this case where permanent residency can be appealed for, such as where spouse has died, or one of the partners becomes a victim of domestic abuse, violence and/or torture.

Conditional Permanent Residence Period has been initiated to ensure that only genuine people can apply under this program. It is aimed at dissuading the earlier increasing trend of convenience marriages where people would get married for permanent residency card.

In many cases, Conditional Permanent Resident Period becomes extremely challenging to fulfil as people might be engaged in jobs in different cities or for other unavoidable reasons. These people stand high possibility of losing their spousal sponsorship approval. It is best to hire professional assistance in such complicated cases.

We, at Lexlords, have a long experience of dealing with people who were facing it difficult to establish their relationship as a genuine one, and were on the verge of receiving departure orders from Canadian Immigration Agencies. Our timely assistance has saved many from such untoward decisions.

Time taken by a Spousal Sponsorship to get Processed

Time taken by a Spousal Sponsorship application can vary from case to case. Every case differs in its nature, complexity and life history of the individuals applying. It is extremely difficult to ascertain how much time it may take for an application to be processed. In certain cases, it might take 6-8 months only but most often spousal sponsorships can take anywhere from 1 to 2 years minimum.

If your case is being handled by an experienced lawyer, there are high chances that a lot of complexities would be previously resolved because of the acumen of the lawyer. Amateurs can cause lot of delays and unnecessary wait.

We, at LexLords, have been in immigration business from a long time and have dealt with many complicated cases. We have specialized lawyers who deal in specific legal processes and therefore have both experience and knowledge to assist you in coming through the most complex of situations.