Individuals sponsored to come to Canada by their spouse, common-law partner or conjugal partner are granted conditional permanent resident status with certain conditions and obligations attached depending on the status of their relationship at the time of sponsorship. These conditions are:
- 5 year ban on sponsoring a new spouse, common-law or conjugal partner;
- Requirement to remain in a conjugal relationship for 2 years following the acquisition of permanent resident status.
These conditions were adopted to limit the possibility of abuse or fraud in the spousal sponsorship process.
Canadian citizens and permanent residents have the right to sponsor their spouse, common-law or conjugal partner to come to Canada. This right is, however, limited for individuals who were themselves sponsored in that category. These individuals cannot sponsor a new spouse or partner until a period of 5 years has elapsed from the day they landed in Canada, becoming permanent residents. This condition applies regardless of whether the person obtains Canadian citizenship in the interim.
The 5 year ban does not apply to non-spousal or partner sponsorships. As such, individuals who were sponsored as a spouse or partner can, even in the 5 year period following the beginning of their permanent residence, sponsor other members of the family class.
Under certain circumstances, a sponsored spouse, common-law or conjugal partner is granted permanent resident status which can be revoked if they do not cohabitate in a conjugal relationship with their sponsor for a continuous period of 2 years following their acquisition of status. If an individual’s permanent resident status if revoked, any person who was in turn sponsored to come to Canada by that individual will also lose their status.
Permanent residents to whom the 2 year conjugal relationship requirement applies can have their status revoked even if non-compliance is discovered only after the initial two year period in question.
A sponsored individual is subject to the requirement if:
- As of the day their sponsor filed a sponsorship application, they had been married, in a common-law or conjugal relationship for two years or less, AND:
- At that time had no child together.
Married couples who file an application for sponsorship within two years of the date of their marriage are subject to this condition, even if they had a relationship prior to the marriage.
Live in a Conjugal Relationship
Citizenship and Immigration Canada (CIC) defines this as a financially, socially, emotionally and physically interdependent relationship. Individuals in a conjugal relationship will have made a serious commitment to one another.
Continuous Cohabitation for a period of 2 years
CIC’s interpretation of “cohabitation” is of two people who have combined their affaires together and live in one dwelling. The interpretation allows for short periods of separation caused by work, business travel or other obligations however these periods must be temporary and short. Various periods of cohabitation separated by periods apart cannot be combined to meet the 2 year requirement.
Exceptions: Death and Abuse or Neglect
Individuals who are subject to the 2 year conjugal cohabitation requirement can see this requirement lifted in two circumstances:
- Death of their sponsoring spouse, common-law partner or conjugal partner;
- End of conjugal relationship due to abuse or neglect;
In the event of the sponsor’s death during the 2 year conditional period, the sponsored person will have to provide evidence of the death to CIC in the form of a death certificate or attestation from the funeral home. They will also have to provide evidence that they continued to live with their sponsor in a conjugal relationship until the time of death in order for the condition to be lifted.
The two year condition can also be lifted if it is shown that the permanent resident lived in a conjugal relationship with their sponsor until that cohabitation became impossible due to abuse or neglect. The abuse in question can be physical, sexual, psychological or financial. Neglect refers to the failure to provide the basic necessities of life such as food, clothing, medical care or shelter.
Situations which can lead to lifting of condition are those where the author of the abuse is the sponsor or their relatives and where the victim is the sponsored person, their child, a child of the sponsor or a relative who habitually lives with them. In such situations, the permanent resident can ask CIC to be exempt from the two year conjugal cohabitation condition.
The issue of same sex marriages underwent an important development in Canada following the recent proclamation of the federal Civil Marriages Act. This legislation flows from a landmark December 2004 Supreme Court of Canada ruling upholding Parliament’s authority to legislate in this area. It extends the legal capacity for marriage to same sex couples in Canada. Canada thus becomes the fourth member of an exclusive group of countries (Netherlands, Belgium and Spain) that have legalized nation wide same sex marriages. This has had widespread effect in many areas including the field of immigration in Canada.
For immigration purposes, you are a spouse if you are married to your sponsor or the main applicant and your marriage is legally valid.
If you were married in Canada, your marriage is legally valid if you possess:
- A Certificate of Marriage issued by the province or territory where the marriage took place.
If you were married outside Canada, your marriage is legally valid if:
- It is valid under the law of the country where it took place and under Canadian law.
- It is a marriage performed in an embassy or consulate which complied with the law of the country where it took place, not the country of nationality of the embassy or consulate.
However, despite Canada’s seemingly progressive status, Canadian immigration authorities continue to apply a complex approach to same sex couples who have married when assessing their rights as a member of the family class or as an accompanying family member under the Canadian Immigration and Refugee Protection Act.
In effect, a same sex marriage which took place in Canada between a Canadian and a non Canadian will only be legally recognized for sponsorship purposes or to qualify as an accompanying dependent if the marriage took place in:
- Quebec (on or after March 19, 2004)
- Ontario (on or after June 10, 2003)
- British Columbia (on or after July 8, 2003)
- Yukon (on or after July 14, 2004)
- Manitoba (on or after September 16, 2004)
- Nova Scotia (on or after September 24, 2004)
- Saskatchewan (on or after November 5, 2004)
- Newfoundland (on or after December 21, 2004)
- New Brunswick (on or after July 4, 2005)
- All other provinces or territories (on or after July 20, 2005).
Canadian immigration authorities still consider all same sex marriages which took place outside Canada to be invalid. As a result, same sex spouses married outside of Canada are not considered spouses for immigration purposes.
What can a same-sex couple who married in any of the above-mentioned provinces before the above-mentioned dates, or who married outside Canada for example in Netherlands, Belgium, Spain or in certain states within the United States do in order to ensure that their partner will be able to accompany them as a dependent or be eligible to be sponsored as a member of the family class?
That couple may opt to apply as common-law partners. As a result, an officer would assess the common-law relationship between the couple for the purposes of a sponsorship application or to determine an applicant’s eligibility as a dependent family member
Common law relationships
A common law relationship is one in which two members of the same or of the opposite sex has been living together in a conjugal relationship for at least one year. The year of living together must be a continuous 12-month period.
To succeed in proving the existence of a common-law relationship, you and your partner will have to provide documents that prove that you and your common-law partner have combined your affairs and have set up your household together in one home. This could include:
- joint bank accounts or credit cards;
- joint ownership of a home;
- joint residential leases;
- joint rental receipts;
- joint utilities (electricity, gas, telephone);
- joint management of household expenses;
- proof of joint purchases, especially for household items; or
- correspondence addressed to either person or both people at the same address
What can a couple do if they have not been able to live together continuously for one year, but in all other respects, the couple is similar to a common-law couple or a married couple?
Where a Canadian permanent resident or citizen is seeking a way to sponsor his or her same sex or partner of the opposite sex, that person may opt to sponsor their partner as a conjugal partner.
The conjugal partner category was created for exceptional circumstances – for foreign national partners of Canadian or permanent resident sponsors who would ordinarily apply as common-law partners but for the fact that they have not been able to live together continuously for one year, usually because of an immigration impediment. It applies to couples of the same sex or of the opposite sex who have been in a bona fide conjugal relationship for a period of at least one year.
A conjugal relationship is more than a physical relationship. It is a physically, emotionally and financially interdependent relationship, and it has some permanence and the same level of commitment as a marriage or a common-law union.
You may apply as a conjugal partner if:
- You have maintained a conjugal relationship with your sponsor for at least one year;
- You have been prevented from living together or marrying because of:
- an immigration barrier;
- your religion; or
- your marital status (e.g., you are married to someone else and living in a country where divorce is not possible); or
- your sexual orientation (e.g., you are in a same-sex relationship and same-sex marriage is not permitted where you live);
- You can provide evidence of an impediment to living together (e.g., evidence of refused long-term stays in each other’s country).
Please note that conjugal partners do not qualify as dependent family members for the purposes of applications under the skilled worker class, the business class or other applicants filing under the economic class.
The above-mentioned rules may be subject to ongoing policy changes. Interested applicants may wish to complete our assessment questionnaire or contact Attorney Colin Singer by email – [email protected], for further information.
One of the objectives of the Immigration and Refugee Protection Act (IRPA) is to ensure that families are reunited in Canada. In an effort to fulfill that objective, CIC has recently implemented measures to decrease the processing time of sponsorship applications for parents and grandparents coming to Canada as family class immigrants. In order to enable a reduction in processing times, CIC will add temporary duty officers and support staff at visa offices with the largest number of applications in the coming weeks and benefit from an investment by the Government of Canada of $36 million a year over the next two years to increase the number of parent and grandparent applications processed and to cover integration costs once they arrive in Canada. It is anticipated that the number of parents and grandparents immigrating to Canada will triple to 18,000 in 2005 /2006 from the current level of 6,000 annually.
In addition, CIC will be more flexible in issuing multiple-entry visitor visas to parents and grandparents. This will allow them to visit their families in Canada while their sponsorship applications are in process. The visitor visas will only be issued to those applicants who are able to prove that they will not remain in Canada beyond the period authorized by their visitor visa.
n response to the recent conflict in Lebanon, Citizenship and Immigration Canada introduced new measures to help reunite families who were affected. According to Immigration Minister Monty Solberg, CIC has been giving “priority visa and immigration services to family members of Canadian citizens and permanent residents to help them join their relatives in Canada.” This essentially involves the expediting of sponsorship applications under the family class for those directly affected by the conflict in Lebanon. However, the process will still take time, as all requirements must still be met including security and medical criteria.
Sympathetic consideration is also being given to applications from visitors, students and temporary workers from Lebanon seeking to extend their stay in Canada.
It is important to note that the majority of the people displaced by the current conflict are displaced within Lebanon and, as such, are considered internally displaced persons. Such persons are not considered to be refugees, and as such CIC is generally not considering refugee applications from Lebanon, especially given the current ceasefire.
CIC has also sent 34 additional officers, doctors, and support staff to help with consular, visa, and medical services in the region.
Since the ceasefire was implemented August 14th, 2006, CIC’s visa office in Beirut is gradually resuming normal operations. Visa offices in Damascus and Amman are continuing to assist the Beirut office to expedite temporary resident visa applications for residents of Lebanon until further notice.
If you are in Lebanon and have immediate family in Canada, and wish to take advantage of the current priority processing by the government of Canada, please fill out a free sponsorship assessment for more information as to your eligibility and the assistance we can provide you with your application here: https://assessment.immigration.ca
If you are a Skilled Worker in Lebanon and are interested in applying for permanent residency to Canada please fill out a free assessment here; https://assessment.immigration.ca/
As Canada’s Conservative Party gets set to begin its mandate to govern, practitioners are hopeful that the new Minister of Citizenship and Immigration will act swiftly to implement an important policy initiative that has yet to be implemented from the former government.
Last April 2005, the newly appointed Minister of Citizenship and Immigration at that time, announced that the Department would allocate increased resources to accelerate pending Family Class sponsorship applications for parents and grandparents coming to Canada as family class immigrants at Canada’s missions abroad.
Many of these applications had been languishing at visa offices for several years causing hardship on the families involved. The plan was that CIC would temporarily add duty officers and support staff at overseas missions with the goal that the numbers of such applicants admitted to Canada each year would triple to 18,000 for the previous 6000 per year.
Practitioners viewed this announcement with trepedation and even synicism. Many of us opined that these announcements were most likely designed to camaflauge the damage unearthed by testimonial evidence at the Gomery Commission looking into the Liberal Government’s scandulous sponsorship scandal and as well, to bring a bold sense of renewed hope for the Ministry of Citizenship. This department itself had been tainted by scandal only months prior when the previous Minister of Citizenship and Immigration was forced to resign in the face of allegations of imropriety. Those allegations have since been proven false.
But as we approach the one year anniversary mark since these bold initiatives were announced, practitioners have not yet observed any significant move by the department to process the growing backlog of Family Class applications involving parents and grandparents of Canadian sponsors. No secondment of visa officers abroad. No increased expenditures. No fulfillment of promises. Despite the previous government’s promises, thousands of pending Family Class cases some dating back to 2001 / 2002 continue to languish with no meaningful movement and no hope that love ones will soon be reunited in Canada.
How could a Ministerial announcement take so long to become effective, unless of course it was never intended to have any substance? Perhaps one of the first items for the the new Minister of Citizenship and Immigration in this government is to re-introduce serious discussion and give effect to this previous initiative. Canadian sponsors deserve nothing less.
One of the principal objectives of the Canadian Immigration program is to promote family reunification. A Canadian citizen or permanent resident may apply to sponsor a family member to become a permanent resident in Canada under the Family Class. Currently, 25%-30% of all new permanent residents to Canada are derived from the family class stream.
Although not all applications are approved, Canada’s immigration laws provide permanent residents with a number of appellate review mechanisms under the Immigration Appeal Division (IAD), a court of equitable jurisdiction, to address refusals of sponsored applications for permanent residence on behalf of members of the family class on spousal relationship applications. Most appeals are contested and owing to the volume of such cases at the Immigration Appeal Division across Canada, can take approximately 12-18 months to conclude.
There are a number of family class sponsorship applications that are considered “red flag applications”, where CIC will often refuse such applications unless all of the “issues” are effectively addressed. One such case is the sponsorship application submitted under the common-law marriage rules. Although CIC makes it perfectly clear that common-law applicants may apply for sponsorship under the Family Class, the reality is they are often refused. This is a very problematic circumstance for some people, in that they are generally unaware of the almost systematic refusals that can occur if important issues are not properly addressed in the application. Even Immigration Canada’s application kits that are made available to those hoping to apply under this program, hints at this circumstance as a potential for refusal:
“(Refusals can result if) the relationship between you and your sponsor is for convenience only, that is you and your sponsor…entered into a common-law relationship to allow you to stay in (or come to) Canada.”
Clearly, this is a delicate area for any couple wishing to pursue a successful sponsorship application and a properly constituted application prepared by effective legal counsel may be a viable consideration.
Alternative Dispute Resolution Process
In some instances, appeals can take a shorter route under the Alternative Dispute Resolution process (ADR). This is an uncontested process whereby the Minister’s representative, a Canada Border Services representative and the applicant’s legal counsel will agree to approve an appeal on the basis that the previous concerns of the Visa Officer who rendered the negative decision are no longer in doubt. This can occur under a number of scenarios such as for example where an issue of criminality has been clarified, or no longer has an effect on the admissibility of the applicant to Canada; or where the Canadian sponsor and the foreign national previously applying under the Conjugal Relationship guidelines have legally formalized their marriage.
The ADR process can substantially shorten the appeal. The formal appeal is filed with the Immigration Appeal Division requesting consideration for ADR. Submissions are included to address the concerns of the Visa Officer that gave rise to the refusal. There is no standard processing time, but in general, the majority of spousal sponsorship appeals that are processed under the ADR mechanism are concluded within a year.
The essence of this process is to give an early opportunity to an applicant to resolve their appeal after being denied. For the applicant, it is a chance to discuss their case, tell their story and engage in discussion with a representative of the Minister. An experienced immigration lawyer can be invaluable at this stage, and can often address the important issues in order to maximize the opportunity for the application to be resolved favourably.
ADR is an informal process. The Dispute Resolution Officer (who is not an employee of CIC) allows all parties to discuss the issues raised by the refusal. The applicant and their council may ask questions and may provide whatever information that will help their case. This process is also confidential. Regardless of the outcome, it will not affect the applicant’s right to a full appeal hearing thereafter in the event that ADR does not result in positive decision. In other words, appeal applicants have nothing to lose under the ADR process.
There is no standard format for an ADR, as it is an informal meeting. But the general flow of the process is as follows: the parties meet, if an interpreter has been ordered, they will meet the parties there. An opening statement will be offered by the Dispute Resolution Officer. After this point the applicant or their council may tell their story. Here, they may underline the merits of their case. Council may provide a very meaningful role by presenting information and providing reference to applicable case law which the Dispute Resolution Officer can use to render a recommendation.
At this point, the Dispute Resolution Officer may ask a list of questions. According to the guidelines given to Dispute Resolution Officers when they are given their training, as well as questions drawn from our experience in dealing with this process, typical questions include; why is it important to you that your relative come to Canada? Tell us about your relationship and how it developed. What is your understanding as to why your sponsorship was refused? This is just a sample, and there are many other questions that may be asked. It is important to be very well prepared for this engagement, as it is a delicate process and can weigh heavily on the recommendation of the Officer.
After questions and further discussion, the Officer will evaluate the case on the standard of likelihood of success at the appeal hearing. Here, the Officer will recommend that the appeal continue or that it be withdrawn. If the Officer recommends that the appeal is withdrawn because the Officer believes that the case will not succeed at the appeal hearing, for either the applicant or the government, the applicants may nevertheless proceed to the formal appeal stage as the outcome of ADR does not bear on the actual appeal hearing. On the other hand, if the Officer believes that the applicant’s case will succeed at the appeal hearing then a positive recommendation will be rendered which is generally followed by the government.
ADR helps resolve about 60% of sponsorship appeals and, if pursued in an organized and thoughtful way by the applicant, this process saves time and reduces the anxiety that goes with the unknown of an appeal hearing. It is a good opportunity to have meaningful discourse with a representative of the Minister and to have the applicant’s side of the story told without all of the procedural hang-ups. Of course, the process is not straightforward, as evidenced by the number of negative recommendations that are rendered. But, with a strong case that is presented in a very well-organized and thorough way, the chances for success under ADR are significantly increased.
Interested readers with questions on the foregoing may contact Attorney Colin R. Singer by email at [email protected]
On February 18, 2005 Citizenship and Immigration Minister Joe Volpe announced a new public policy under which legal immigration status is no longer a requirement for spouses and common-law partners of Canadian citizens and permanent residents in Canada who wish to apply for permanent residence status in the Spouse or Common Law Partner in Canada Class.
Under the previous policy, the Spouse or Common-Law Partner in Canada Class was only available to spouses and common-law partners of Canadian citizens or permanent residents who had valid temporary immigration status in Canada. Those without status only had the option of applying for permanent residence under the humanitarian and compassionate Class.
Now, the out of status spouse or common-law partner may submit an application under theSpouse or Common Law Partner in Canada Class. To qualify, the out of status spouse or common law partner must be in a genuine relationship with a Canadian citizen or permanent resident sponsor. As well, the Canadian sponsor must be eligible to sponsor the applicant and, as always, the applicant must successfully complete criminal, security and health checks.
An application under the Spouse or Common Law Partner in Canada Class can also include certain family members who are living inside Canada or abroad.
This policy change will be applied retroactively to include applications that are in process at the time of the announcement. Accordingly, applications by spouses or common-law partners who applied for humanitarian and compassionate consideration because they did not have valid temporary immigration status when their application was submitted will be automatically assessed under the new policy on condition that an “Application to Sponsor and Undertaking” (IMM 1344A) was submitted with their application.
Spouses or common-law partners who do not have valid temporary immigration status and who have already submitted an application requesting humanitarian consideration without submitting an “Application to Sponsor and Undertaking” (IMM 1344A) will be contacted by CIC with a request to furnish this undertaking. If the applicant does not do so, the applicant will not qualify to be processed under the new policy and will be required to qualify under the general humanitarian and compassionate provisions, a more discretionary option.
Spouses and common-law partners without legal immigration status in Canada applying under the new policy will not be granted permission to work or study while their application is being processed and will they not be permitted to apply for work or study permits until they receive initial approval (approval in principle). In order to be approved in principle, the officer examining the application must determine that the sponsor meets the eligibility requirements, that there is a genuine relationship between the couple and that the couple lives together.
Most out of status spouses and common-law partners can remain in Canada while their application is being processed. However, applicants who are under an enforceable removal order and who are not permitted to defer their removal (administrative deferral of removal) will be required to leave Canada. A deferral will not be granted to applicants who:
- Are inadmissible for security, human or international rights violations, serious criminality, or organized criminality;
- Are excluded by the Refugee Protection Division under Article F of the Geneva Convention;
- Have charges pending or in those cases where charges have been laid but dropped by the Crown;
- Have already benefited from an administrative deferral of removal emanating from an humanitarian and compassionate application supported by a spousal application;
- Have a warrant outstanding for removal;
- Have previously hindered or delayed removal; and
- Have been previously deported from Canada and have not obtained permission to return
Citizenship and Immigration Canada officials acknowledge that they have no authority to reconsider applications by out of status spouses and common-law partners that have already been refused. Refused applicants are advised to reapply under the new policy.