What This Chapter is About
This chapter provides details on:
- The manner in which officers would need to process permanent resident applications from members of the family class
- The criteria prescribed which applicants in the family class would need to meet
- The manner in which officers would need to refuse applications in the family class and,
- The manner in which officers would need to handle the appeals of refusals of applications in the family class
Officers might require additional information on processing applications for sponsoring members of the family class. For this, they would need to refer to IP 2.
The Program Objectives
The objective of the family class program is to facilitate the reunion of Canadian citizens and permanent residents with their close relatives and family members in Canada.
The Act and the Regulations
The following table provides details on the legislation concerning the members of the family class.
The Provision | The Reference in the Act or the Regulations |
The Objective Relating to Family Reunification | A3 (1) (d) |
The Scenario When the Sponsor Does Not Meet the Requirements | A11 (2) |
The Selection of Members of the Family Class | A12 (1) |
The Right to Sponsor a Family Member | A13 (1) |
The Obligation of Sponsorship | A13 (3) |
The Guidelines for an Inadmissible Family Member | A42 |
The Right to Appeal in the Case of Family Class Refusal | A63 (1) |
The Guidelines for Inadmissible Classes | A33 – A42 |
The Exception to Excessive Demand | A38 (2) and R24 |
The Definition of Common-Law Partner | R1 (1) |
The Interpretation of Common-Law Partner | R1 (2) |
The Definition of Family Member | R1 (3) |
The Definition of Dependent Child | R2 |
The Definition of Conjugal Partner | R2 |
The Definition of Relative and Family Member | R2 |
The Concept of Bad Faith (Relationships or Dissolutions of Convenience) | R4 and R4.1 |
The Definition of a Member of the Family Class | R117 (1) |
The Guidelines for Adoption Under 18 Years | R117 (2) |
The Best Interests of the Child | R117 (3) |
The Child to be Adopted | R117 (1) (g) |
The Guidelines for Adoption Over 18 Years | R117 (4) |
The Excluded Relationships | R117 (9), R117 (10) and R117 (11) |
The Withdrawal of Sponsorship Application | R119 |
The Approved Sponsorship Application | R120 |
The Requirements for Family Members of Member of Family Class – Visa Issuance | R121 |
The Requirements for Family Members of Member of Family Class in Order to Grant Permanent Residence | R122 |
The Guidelines for Who May Sponsor | R130 |
The Sponsorship Criteria | R133 |
The table that follows lists the forms that the applicants would typically require when they apply for permanent residence under the family member class.
The Form Title | The Form Number |
The Application for Permanent Residence in Canada | IMM 0008EGEN Generic |
The Schedule 1 / Background Declaration | IMM 0008ESCH1 Schedule 1 |
The Application to Sponsor and Undertaking | IMM 1344AE |
The Sponsorship Agreement | IMM 1344BE |
The Additional Family Information | IMM 5406E |
The Financial Evaluation | IMM 1283E |
The Instruments and Delegations
The provisions specified in A6 provide the Minister with various authorisations. In particular, they authorise the Minister to designate officers for carrying out specific duties and power, in addition to delegating certain authorities. These provisions state those ministerial authorities that the Minister cannot delegate as well. Such ministerial authorities would typically relate to national interest or security certificates.
Pursuant to the provisions specified in A6 (2), the Minister of Citizenship and Immigration (CIC) has delegated powers and designated certain officials to carry out any purpose of any provisions legislative or regulatory in instrument IL 3 – Delegation and Designation.
For more details on delegated / designated authorities pertaining to sponsorship applications, officers would need to go through section 4 of IP 2.
The Delegated Powers
The provisions specified in IL 3 tend to organise powers by modules. Thus, each module typically comprises columns including:
- Column 1 – that provides an item number for the described powers
- Column 2 – that provides a reference to the sections or subsections of the Act and the Regulations that the described powers cover and,
- Column 3 – that provide a description of the delegated powers
Officers would be able to find the duties and powers specific to this chapter in the modules listed below:
- Module 1 – Permanent Residence and the Sponsorship of Foreign Nationals
- Module 9 – Inadmissibility – The Loss of Status – Removal
The Delegates / Designated Officers
The provisions specified in column 4 of Annexes A to H (specified in IL 3) authorise the delegates or designated officers to carry out the powers specified in column three of each module. The authorities have organised the appendices by region and by module. As such, the officers would need to verify the list below for the appendix specific to their region.
The Appendix | The Region |
Appendix A | The Atlantic Region |
Appendix B | The Quebec Region |
Appendix C | The Ontario Region |
Appendix D | The Prairies / The Northwest Territories Region |
Appendix E | The British Columbia Region |
Appendix F | The International Region |
Appendix G | The Departmental Delivery Network |
Appendix H | The National Headquarters (NHQ) |
The Departmental Policy
The Family Class Requirements
The authorities require that members of the family class and their family members meet the following requirements:
- They would need to have an eligible relative, or spouse or common-law partner or conjugal partner who meet the prescribed requirements for sponsorship
- They would need to prove their identity, age and relationship among themselves and to their sponsor
- None of the inadmissible classes must describe the applicant and the applicant’s family members and,
- They must have valid and subsisting passports or travel documents
Who Will Need to Complete an IMM 0008?
The authorities require that all principal applicants complete the IMM 0008GEN. This is regardless of their age. In addition, the authorities require certain family members included in the sponsorship to complete a Schedule 1 – the Background Declaration and Additional Family Information i.e. IMM 5406E as well. These family members comprise spouses, common-law partners and dependent children over 18 years of age. It is worth mentioning that spouses, common-law partners and family members would need to complete this form. This is regardless of whether they accompany the principal applicant to Canada or not.
Situations could arise where parents sponsor two or more dependent children of any age. In this scenario, the officers would need to ensure that the parents provide separate IMM 0008s for each child.
Similarly, the authorities might ask dependent children below 18 years of age to complete a Schedule 1 – the Background Declaration and Additional Family Information i.e. IMM 5406E as well. Alternatively, they might ask children who are not accompanying the principal applicant to complete a Schedule 1 – the Background Declaration and Additional Family Information i.e. IMM 5406E too. Completing this form would assist with the verification of identity and relationship. In addition, it could assist in their examination as well. Once the family members complete these forms, the officers would need to explain that these forms serve the objective of being sources of information. Hence, they do not serve as applications for permanent residence.
When Does a Family Class Application Exist?
A family class application exists in family class redesign cases comprising a spouse or common-law partner or conjugal partner or dependent children. A family class application typically requires receipt by the Case Processing Centre, Mississauga (CPC-M) of:
- An IMM 1344AE
- A properly completed and signed IMM 0008 and,
- The correct processing fees
In case the officers find that any one of these elements is missing, they would need to return the application to the sponsor.
Other family class cases require that the Case Processing Centre, Mississauga (CPC-M) receives the IMM 1344AE and the appropriate fees. In addition, the visa office will need to receive the properly signed and completed IMM 0008 as well.
For more details on the aspects that constitute an application, the officers would need to refer to R10 and R12.
The Lock-in Age of Dependent Children
The authorities consider the day on which the Case Processing Centre, Mississauga (CPC-M) receives a completed IMM 1344AE and the correct processing fees as the lock-in age for dependent children. Dependent children will need to be less than 22 years of age when the Case Processing Centre, Mississauga (CPC-M) receives the sponsorship application.
It is worth mentioning that under 22 years signifies the age up to and including the last day before the dependent child’s 22nd birthday.
As soon as the offices receive the application forms, they will need to date-stamp these applications.
For more details on the lock-in date, officers would need to refer to OP 1 – the General Processing Guidelines.
The Time Limit for Returning a Completed IMM 0008
Visa offices would need to receive accurately completed IMM 0008GENs. When signed, these forms form the basis for the authorities to take a decision on applications for permanent residence. Citizenship and Immigration Canada (CIC) uses this form as well for supporting A44 (1) reports. This is why this form is a part of the record when sponsors appeal refusals.
Sponsored relatives typically have one year for submitting applications to a visa office. This includes sponsored relatives destined to Quebec. The one-year period commences on the date on which the Case Processing Centre, Mississauga (CPC-M) sends the sponsorship assessment letter to the sponsor. This is the same date as the ‘date signed’ contained in the sponsorship notification from the Case Processing Centre, Mississauga (CPC-M) to the visa office.
Sponsors have the ability to withdraw their applications and request a refund of the permanent residence application processing fee. This is especially so if they have not submitted the IMM 0008GEN.
These guidelines apply to members of the family class other than spouses, common-law partners, conjugal partners and dependent children. They apply to children whom people are adopting from outside Canada. In addition, they apply to children whom people are adopting in Canada as well.
The Processing Priorities
It is worth mentioning that applications for permanent residence from spouses, common-law partners, conjugal partners and dependent children have the highest priority. This is the case for children in the process of getting adopted as well. Other members of the family class follow. These are not regulatory priorities. Rather, they are operational priorities. The Department aims to process about 80 percent of sponsorship and permanent residence applications submitted on behalf of the following high priority group within six months:
- Spouses
- Common-law partners
- Conjugal partners and,
- Dependent children
The Guidelines for Non-Routine Cases
The authorities require officers to make every effort in an attempt to process high-priority cases in an expeditious manner. However, they recognise that some circumstances could take place that legitimately affect the processing of such high-priority cases. The following list provides some examples of non-routine cases that officers might not be able to process in accordance with the six-month service standard. It is worth mentioning that this list is not exhaustive.
Some examples of non-routine cases include those featuring:
- Medical, security or criminal issues
- Suspected relationships or dissolutions of convenience
- Misrepresentation of marital status at the time of marriage
- Previous deportation
- The inability to support self and family members because of legal obligations or other reasons
- Instances where the relationship of the applicant to the sponsor or of the applicant to other family members is in doubt
- Instances where the marital status of a family member is suspect
- Instances where the authorities are investigating the sponsor for violation of provisions specified in the Immigration and Refugee Protection Act (IRPA) or,
- The presence of outstanding criminal charges against the sponsor
The following situations would frequently fall into the category of non-routine cases. However, these situations will not necessarily be non-routine cases.
- Instances where the legal validity of the foreign marriage is in question
- In such cases, the marriage would have typically taken place in a country other than in the processing mission’s area of responsibility
- Instances pertaining to the custody of the children of the applicant
- Instances where the residence status of the sponsor is in doubt
- Instances where the applicant has created delays by not following the specified instructions
- Instances where the mission or the applicant did not receive communications in time
- This would usually be because of unreliable postal systems or in situations where the mission has no details of the change of address of the applicant
- Instances where there are difficulties in processing coordination resulting because the family members and the principal applicant reside in different countries or,
- Instances where the authorities previously removed or excluded the applicant from Canada
The authorities have tried to make efforts for aiding the analysis and identification of all kinds of non-routine cases. For this, they require the visa offices to use the Work in Progress (WIP) event structure in the Computer Assisted Immigration Processing System (CAIPS). This would facilitate the early identification and flagging of non-routine cases. As such, the authorities require visa offices to enter the following Work in Progress (WIP) events for identifying files that are non-routine:
- Background check delay
- Medical delay
- Criminality delay and,
- Other delay
Using the Work in Progress (WIP) specified above would aid officers to process these cases outside of the six-month service standard. It is worth mentioning that the officers could enter one or more of these Work in Progress (WIP) events once they identify the cause of a possible delay.
Some examples of possible delays include:
- For medical delays
- Instances where the authorities require the applicant to undergo six months of treatment for active tuberculosis
- For criminality delays
- Instances where a family member has a pending criminal charge that requires a resolution before the authorities determine on the admissibility of the family member
- For other delays
- Instances where the authorities require an interview but can only make area trips to the region once or twice per year and they have only completed one such area trip recently
- Cases where the sponsor is from Quebec, where the Quebec authorities found the sponsor to be ineligible and where the sponsor has made a successful appeal or,
- The authorities require an investigation of the sponsor in Canada prior to their determining the eligibility of the sponsor
How Do the Authorities Typically Deal with Polygamous Marriages?
Officers will need to counsel both parties that polygamy is an offence under the provisions specified in the Criminal Code of Canada.
According to the provisions specified in R117 (9) (c) (i), a spouse is not a member of the family class in case the sponsor or the spouse was already married to another person at the time of the subsequent marriage. This regulation prohibits a second or third wife from obtaining legal recognition as a spouse within the family class. In addition, it provides that only the first marriage has the potential for obtaining legal recognition for immigration purposes.
In order for the first marriage to obtain legal recognition and be legally valid under Canadian law, the couple will need to live together in a monogamous marriage in Canada. Common law permits applicants to convert a polygamous marriage into a monogamous one. For this, the couple will need to live together in a monogamous relationship from the time of their arrival in Canada. Such a conversion will typically come into effect courtesy a stated intention from the parties detailing their intention to so convert their marriage. In addition, they will need to provide some factual evidence that they have complied with this requirement. They will usually adhere to this requirement by divorcing the other spouses and / or by taking recourse through a re-marriage that has legal validity in Canada.
It is worth mentioning that officers will need to base the decision to refuse on the balance of all the evidence. As such, they would not refuse an application solely because the applicant did not obtain a divorce. The parties will also need to understand that refusal to provide such evidence might result in the refusal of their applications.
The parties will need to understand that they will not be able to convert a polygamous second or third marriage to one of monogamy. Therefore, in case a husband wishes to sponsor a wife other than his first as a spouse, he will need to divorce his other wives and remarry the chosen wife in a form of marriage that is legally valid in Canada. Thereafter, he and his chosen spouse will need to sign a declaration to this effect.
Situations could arise where a sponsor and an applicant have been practising polygamy. In such situations, there will usually be children existing from several spouses. In this scenario, officers will need to caution the sponsor and the spouse that the sponsor is sponsoring that other spouses will not be eligible for immigration to Canada. This is applicable even if the sponsor is sponsoring their respective children. Officers will need to explain that the separation of children from their mothers will be permanent in all likelihood. In addition, they will need to counsel the sponsor and the applicant to consider the consequences of that separation on the children.
It is possible that the sponsor and the applicant will nonetheless sponsor the children. It is also possible that one of these children subsequently end up sponsoring their respective mother. In this case, officers will need to caution the mother that she will not have a spousal status and related legal protection in Canada. In addition, she will not be eligible for support or other benefits that flow from marriage under Canadian law as well.
It is worth highlighting that the sponsor and the applicant cannot avoid the prohibition against polygamy specified in the Regulations. As such, the sponsor and the applicant cannot avoid the lack of legal recognition of all spouses save the first by processing a second spouse as a common-law partner. By law, it is not possible to establish a common-law relationship that meets the definition of such in terms of conjugality. This is especially so in situations where one or both parties are still living in a pre-existing conjugal relationship.
The notion of conjugality has within it the requirement of monogamy. As such, it is only possible to establish a new common-law relationship in law after a person is either divorced or separated from the spouse or common-law partner. In this case, the individual will need to have convincingly formed the intention not to continue with that previous relationship as well.
An already existing marriage, which is uninterrupted by divorce, separation or death, remains a barrier that the authorities will not be able to overcome when they assess a second spouse as a common-law partner. In some cases, though, it is possible that circumstances might remove such a barrier. This would typically be the case when the husband divorces the first wife subsequently or the first wife passes away. In such cases, a husband and second wife could either choose to remarry. Or, they could potentially meet the definition of common-law partner. This will necessitate the husband separating from a first wife and living with a second wife in a bona fide conjugal relationship for one year after the separation from the first wife. It is worth pointing out that a subsequent marriage (when the first marriage is continuing) is not valid in Canadian law. Therefore, the authorities would typically consider people in such a scenario to be single in law. As a result, such individuals would have to remarry in order for the authorities to consider them as being married under Canadian law. For more details, officers would need to go through the section titled ‘The Definitions’.
Note:
- It is worth highlighting that the Department cannot require divorces and remarriage
- However, officers have the ability to ask for evidence that the parties have converted their marriage to a monogamous one
- Officers will typically need to explain all the articles that would constitute such evidence to the parties
The Guidelines for Sponsorships by Canadian Citizens Living Abroad
Situations could arise where officers require further information on the people eligible for sponsorship, the sponsorship requirements and the places where sponsors could submit sponsorship applications. For this, they would need to go through the details provided in IP 2.
The Guidelines for Assessing an Application
The authorities require officers to be satisfied that the applicants and the applicants’ family members are not inadmissible. In addition, the officers would need to be satisfied that the applicants and their family members meet all the prescribed requirements of the family class. This is regardless of whether the family members are accompanying or not. This is in accordance with the provisions specified in A11 (1).
Moreover, the authorities also require officers to be satisfied that the applicant continues to meet the sponsorship requirements at the time of visa issuance. In some cases, the sponsor might no longer be eligible at the time of the issuance of the visa. In this scenario, the officers would need to refuse the application. However, they would not refuse the application in case the authorities approved the application based on the provisions specified in A25.
The Guidelines for Non-Accompanying Family Members
Applicants would typically need to declare all family members when they apply for a visa. In addition, they would need to declare all family members once again, prior to obtaining the permanent resident status. This is regardless of whether the family members are accompanying or not. Officers would need to report permanent residents who do not declare all their family members on their applications. This is in accordance with the provisions specified in A44 (1). Officers would be able to find more details on this in subsequent sections of this document titled ‘The Guidelines for Sponsors Who Might be Subject to an A44 (1) Report’ and ‘The Guidelines Concerning Misrepresentation’.
In addition, the officers would need to examine all family members. This is regardless of whether they are accompanying or not. This is applicable unless the appropriate officer determines that the provisions specified in the Act or the former Act for examining the family members do not apply to a particular situation. This is in accordance with the provisions specified in R117 (10). It is worth mentioning that the authorities exclude family members whom the applicant did not declare for the authorities to examine from the family class. As such, the applicants will not be able to sponsor these individuals at a later date. This is in accordance with the provisions specified in R117 (9) (d). However, the provisions specified in R117 (10) provide an exception to this directive.
The authorities require non-accompanying family members to undergo the appropriate medical examinations. These individuals would need to establish that they are not inadmissible for criminal or security reasons as well. Situations could arise where the requirement for minimum necessary income is applicable. In this scenario, the sponsors would need to demonstrate that they have the ability to support all family members – including non-accompanying family members. However, the authorities do not require non-accompanying family members to possess passports or travel documents.
The Guidelines Concerning Inadmissibility and Non-Accompanying Family Members
Unless an officer decides otherwise, the authorities require officers to examine all family members. This applies to accompanying and non-accompanying family members alike. In most cases, the presence of an inadmissible family member would automatically render the principal applicant inadmissible. This is regardless of whether this inadmissible family member is accompanying or non-accompanying. This is in accordance with the provisions specified in R23. However, there are two exceptions to this rule. These comprise:
- A separated spouse or common-law partner of the applicant and,
- A child of the applicant who is in the legal custody of someone other than the applicant, or someone other than the applicant or accompanying family members of the applicant who is empowered to act on behalf of that child by virtue of:
- A court order
- A written agreement or,
- By operation of law
In some cases, it could happen that an applicant’s separated spouse or common-law partner or their children in the custody of someone else are inadmissible. In this scenario, the inadmissibility of the applicant’s separated spouse or common-law partner or their children in the custody of someone else will not render the applicant inadmissible.
Situations could arise where separated spouses or common-law partners could reconcile. Similarly, custody arrangements for children could undergo some changes. In this scenario, it is worthwhile to safeguard the future right to sponsor such individuals in the family class. This is why the authorities stress on examining these individuals. In case the authorities decide not to examine these people, the principal applicant would not be able to sponsor them in the family class in the future under the provisions specified in R117 (9) (d). This is applicable unless the provisions specified in R117 (10) apply to the case in question.
The authorities would typically require the applicants to submit satisfactory documentary proof of separation and of custody being with someone other than the applicant. Such acceptable proof would typically include separation agreements or custody papers.
The officers would not issue permanent resident visas to separated spouses, common-law partners or children in the custody of someone else. This is regardless of whether the officers examine these individuals or not. This is because the authorities do not consider separated spouses and common-law partners as members of the family class. This is in accordance with the provisions specified in R117 (9) (c). Similarly, the authorities consider children in the custody of someone else as non-accompanying family members. Hence, they do not issue permanent resident visas to these individuals.
In some cases, the officers might find that these family members are genuinely unavailable for examination. Or, they might find that these family members are not willing to undergo an examination. In this scenario, the officers would need to clearly explain to the applicant the consequences of these individuals not undergoing the prescribed examination. Thereafter, the officers would need to document this in the Computer Assisted Immigration Processing System (CAIPS) notes. In addition, the officers would need to counsel the applicants to sign and return statutory declarations that demonstrate the family members’ acknowledgement about the consequences of refusing to undergo the prescribed examination.
For more details, readers would need to go through section titled ‘The Exclusion from Membership in the Family Class’ that appears subsequently in this document. This contains various relevant provisions specified in R117 (9) (d), R117 (10) and R117 (11).
The Exclusion from Membership in the Family Class – R117 (9) (d), R117 (10) and R117 (11)) [Former OM OP 03-19]
The authorities require the applicant and the applicant’s family members to meet the requirements of the legislation. This applies to both accompanying and non-accompanying family members. Details on this are present in the previous legislation and the Immigration and Refugee Protection Act (IRPA). In addition, there are no exceptions to the requirement that applicants need to declare all family members. With a few exceptions, this also means that the officers would need to examine all family members as part of the process for achieving permanent residence.
The authorities require officers to be open to the possibility that some clients might not be able to make some family members available for examination. For instance, in some cases, the officers might find that an applicant has done everything in the applicant’s power to facilitate the examination of the applicant’s family members by the officers. But, despite the applicant’s best efforts, the officers might not be able to examine these individuals. In this scenario, the officers would need to make the applicant aware of the consequences of the non-examination of the family members i.e. the applicant will not be able to sponsor these family members at a later date. Once the officer is satisfied that the applicant is aware of the repercussions of the non-examination of some family members, then the officer could continue processing the application. This is because a refusal of the application for non-compliance would not be appropriate, when given the fact that the applicant has cooperated with the officers to the fullest extent.
Officers would need to decide on a case-by-case basis on whether to proceed with an application even if they have not examined all the family members. For this, they would typically need to rely on their common sense and good judgement. Some typical examples of such situations could include cases where:
- An ex-spouse refuses to allow the officers to examine a child or,
- An overage dependent refuses to allow the officers to examine the person
It is worth mentioning that proceeding in this manner would usually be a last resort only. As such, the officers would only opt for this once they are convinced that the applicant cannot make the family member available for examination. This is because the applicants themselves cannot choose to bring a family member for examining to the authorities.
The provisions specified in R117 (9) (d), R117 (10) and R117 (11) aim to ensure that people whom the sponsor made a conscious decision to exclude from their own applications for permanent residence cannot later derive the benefits of sponsorship from this same person as a member of the family class. This is applicable in case the sponsor did not declare these family members in the application for permanent residence or in case the sponsor failed to provide the requisite support and cooperation to bring these family members for examination by the authorities.
However, situations could arise where the applicant declares a family member, but Citizenship and Immigration Canada (CIC) decide not to examine the person. This would usually occur on account of an administrative decision or for policy reasons. In some cases, this could take place because of an administrative error as well. In such instances, the authorities will not exclude the family member from membership in the family class.
But, a sponsor will not be able to sponsor a family member if an officer determined at the time the sponsor previously submitted the application for permanent residence that:
- The authorities notified the sponsor that they would examine the family member and that the sponsor was able to make the family member available for examination but did not do so or,
- The family member was able to appear for the examination but did not appear for it
The officers are currently processing many family class cases that have sponsors who immigrated to Canada under the previous legislation. Under the provisions specified in the previous legislation, certain people did not require undergoing the prescribed examinations as part of the application. Or, in some cases, the officers could not examine certain people because of an administrative policy or decision that Citizenship and Immigration Canada (CIC) took.
At present, there are two categories of people who fall into these categories. These comprise:
- The family members of an applicant for refugee status who did not need to undergo the prescribed examination as part of the application
- It is worth mentioning that in accordance with the provisions specified in the current regulations i.e. R176, the non-accompanying family members of a protected person do not need to undergo examinations
- As such, the officers will not exclude them from the family class in a subsequent sponsorship
- This applies to all non-accompanying family members of a protected person who is seeking to remain in Canada as a permanent resident
- The overseas family members of Humanitarian and Compassionate (H&C) applicants
- Citizenship and Immigration Canada (CIC) did not permit applicants making Humanitarian and Compassionate (H&C) applications in Canada to specify the details of their overseas family members as part of the application
- As such, Citizenship and Immigration Canada (CIC) did not consider examining these overseas family members
In addition, under the previous legislation, certain provisions enabled the application to proceed even though the applicant made a decision of not letting the officers examine a family member. This usually happened in cases where:
- A dependent child was in the custody of the sponsor’s spouse or ex-spouse or,
- The applicant had been formally separated from the spouse
What Are the Consequences of No Examination in Cases Where Citizenship and Immigration Canada (CIC) Made the Decision Not to Require the Examination of Family Members?
It is worth highlighting that the exclusion of R117 (9) (d) does not apply to certain applicants. In particular, it does not apply in case the authorities establish that an officer determined that the applicant did not require undergoing an examination as applicable, under the provisions specified in the Immigration and Refugee Protection Act (IRPA) or the former Act. The officer would usually make this determination during the course of the sponsor’s own application for permanent residence. In such cases, the applicant would typically have been a family member of the foreign national who has subsequently become a sponsor. This is in accordance with the provisions specified in R117 (10).
The key notion for the authorities to mull over in this situation is whether it was the decision of the officer who decided that the authorities did not require to examine the family member, leading to the authorities not examining the family member concerned. In most cases, officers would determine that they do not require examining the family member after they have been fully informed of the existence of the family member, based on the truthful declaration of the foreign national, who subsequently became a sponsor. In case an officer made the decision for not examining the family member, the provisions specified in R117 (9) (d) will not apply in respect of that particular family member. As such, the authorities will not exclude that particular family member.
It is worth highlighting that the provisions specified in R117 (9) (d) do apply to applicants in case officers determine that they could have examined certain applicants during the sponsor’s own application for permanent residence, but the sponsor chose not to make the applicant available for examination or if the applicant decided not to appear for the examination. This is in accordance with the provisions specified in R117 (11). In this scenario, the choice rests with either the sponsor or the applicant and not with an officer of the Department. As such, the authorities will exclude the applicant on the grounds that the applicant did not let the authorities examine the family members as part of the sponsor’s own application for permanent residence. This is in accordance with the provisions specified in R117 (9) (d) and R117 (11).
What Are the Consequences of No Examinations for a Separated Spouse?
Situations could arise where the authorities did not examine a spouse as part of the application for permanent residence because the applicant and the spouse were separated. As such, the authorities did not require examining the separated spouse. In this scenario, the authorities do not permit the separated spouse to receive sponsorship at a later date as a member of the family class based on their relationship to the sponsor. This was true under the provisions specified in R4 (2) of the previous legislation. In addition, it continues to remain valid under the provisions specified in R117 (9) (d) of the current legislation. Therefore, if applicants want to preserve the option to sponsor at a later date, they would need to let the authorities examine the separated spouse. This is in accordance with the provisions specified in R117 (9) (d) and R23.
The authorities will typically consider the relationship between the foreign national and the sponsor as being an excluded relationship. In an excluded relationship, the foreign national was the sponsor’s spouse, but would be living separate and apart from the sponsor.
What Are the Consequences of No Examinations for a Dependent Child in the Custody of a Former Spouse?
Situations could arise where a child was in the custody of the other parent. In this scenario, it is likely that officers might have advised the applicant that the child did not require undergoing an examination because of the custody situation. This is in accordance with the provisions specified in R6 (5) of the Immigration Regulations and R23 of the current regulations. In this scenario, the decision of letting the authorities examine the child or not remains the applicant’s decision.
However, the officers will need to counsel the applicant fully about the consequences of not letting the officers examine the child. In particular, they would need to notify the applicant that non-examination of the child would preclude the child from subsequent sponsorship in the family class by the applicant. The notes specified in the Computer Assisted Immigration Processing System (CAIPS) will need to reflect that this counselling did indeed take place.
In some cases, it might be evident that the applicant received complete counselling. In such cases, the authorities will exclude the dependent child from membership in the family class by virtue of their relationship to the sponsor. As such, this individual would not be able to sponsor the child at a later date. This was true under the provisions specified in R4 (2) of the previous legislation. In addition, it continues to remain valid under the provisions specified in R117 (9) (d) of the current legislation.
In some cases, even a review of the case might not make it clear that the applicant in fact made the choice not to have the child examined. Similarly, a review might not be able to shed any light on the fact that the applicant did indeed understand the consequences of the choice. In this scenario, a review board i.e. the Immigration Appeal Division (IAD) could conclude that the officer was in breach and that the officer did not correctly advise the applicant. Natural justice and fairness demand that applicants receive complete explanations of and understand the repercussions of a decision of this magnitude. This explanation and counselling could take place via correspondence or during an interview.
The Guidelines for Excluded Family Members and Humanitarian and Compassionate (H&C) Grounds
The provisions specified in A25 require officers and delegated authorities to examine Humanitarian and Compassionate (H&C) factors in case the applicant specifically requests this. Situations could arise where officers believe that there are strong Humanitarian and Compassionate (H&C) factors present in a case as well. In this scenario, the officers could, on their own initiatives, put the case forward to the person having the delegated authority for approving the use of A25 (1) for the case. This is applicable even if the applicant does not specifically request this. In addition, officers would need to remember that the applicant does not need to provide a separate application and fee in this scenario.
Applicants have the ability to use the provisions specified in A25 for overcoming the aspect of being excluded family members or any other requirements of the Act. Similarly, applicants could use these provisions for overcoming situations where the applicant has a sponsor who does not meet the eligibility requirements.
The text that follows serves to address the use of A25 in relation to R117 (9) (d). This regulation excludes people who did not undergo the prescribed examination as non-accompanying family members at the time their sponsor made their application for permanent residence from the family class.
The authorities have provided officers with the ability to consider the use of Humanitarian and Compassionate (H&C) factors for excluded family members. In this scenario, the officers would need to take into account all relevant factors including, but not limited to, the factors that follow.
General Factors:
- The authorities place the onus on the client to understand the client’s obligations under the law
- The information guides included with application kits and visa issuance letters provide clear information on the need to declare and facilitate the examination of all family members including new family members
- The exclusions specified in R117 (9) (d) serve to encourage honesty and to prevent applicants from circumventing immigration rules
- In particular, these exclusions exist to prevent applicants from being able to sponsor otherwise inadmissible family members under the generous family class sponsorship rules at a later date when these family members would have prevented the applicant’s initial immigration to Canada for admissibility reasons e.g. excessive demand
- The application of Humanitarian and Compassionate (H&C) considerations could be appropriate in cases that are exceptional and deserving from a reasonable person’s point of view
Case-Specific Factors
- Canada’s ongoing obligations under the Convention on the Rights of the Child require that the Department consider the best interests of the child directly affected by the application
- This is regardless of whether the applicant has mentioned them explicitly or if they are otherwise apparent
- For more details on the application of the policy pertaining to the best interests of the child, officers would need to go through section 8.3 of OP 4
- This is regardless of whether the applicant has mentioned them explicitly or if they are otherwise apparent
- Situations could arise where applicants declare family members, but the authorities do not examine these individuals
- In this scenario, it is apparent that the applicant / sponsor made their best efforts to facilitate this examination, but the lack of examination was beyond the applicant’s / sponsor’s control
- Therefore, officers could consider applying the use of Humanitarian and Compassionate (H&C) factors in this scenario
In some cases, the client might provide compelling reasons for not having disclosed the existence of a family member. In this scenario, officers could consider using Humanitarian and Compassionate (H&C) factors as well. This is especially so in instances where:
- A refugee presents evidence that they believed that their family members were dead or that their whereabouts were unknown or,
- A client presents evidence that they did not disclose the existence of a child because it would cause extreme hardship as the child was born out of wedlock in a culture that does not condone this
Situations could arise where officers decide to put forward a case for the consideration of Humanitarian and Compassionate (H&C) factors in the absence of a specific request from the client. In this scenario, the officers will need to inform the client that they are considering Humanitarian and Compassionate (H&C) factors. This would enable the officers to give the clients an opportunity for presenting their own reasons for Humanitarian and Compassionate (H&C) consideration. This is procedurally fair. In addition, it ensures that the decision-maker has all the relevant information necessary prior to making a decision.
In case the decision-maker decides to make a decision to process an application favourably even though the provisions exclude the applicant pursuant to the provisions specified in R117 (9) (d), the officers will need to code the case as FCH. An FCH code indicates that the case is within the family class, but the officers decided to apply Humanitarian and Compassionate (H&C) consideration. This means that the sponsorship is enforceable and as such, the normal family class exemptions will apply wherever applicable i.e. excessive demand and Low Income Cut Off (LICO). In case the authorities reject the application, the sponsor has appeal rights. For further details on processing family class cases under the provisions specified in A25, officers will need to go through section 8.2 of OP4.
The Guidelines for the Non-Exclusion of Accompanying Family Members
Visa offices would come across situations where common-law partners and dependent children of sponsors are applying for permanent residence. In addition, they might find that the authorities had not examined these individuals at the time of the sponsor’s own pre-IRPA (Immigration and Refugee Protection Act) application for permanent residence. In the pre-IRPA regime, the authorities did not consider common-law partners as family members. Hence, the officers did not need to examine these individuals. These individuals are not inadmissible. This is in accordance with the provisions specified in R117 (9) (d) and R355. However, the officers should have examined any children of the sponsor who met the pre-IRPA definition of dependent child. If the applicant is now sponsoring these children in the family class, then they are inadmissible based on the provisions specified in R117 (9) (d). If, on the contrary, the applicant is including these children in the common-law partner’s application for permanent residence as accompanying family members, then they are not receiving sponsorship themselves as members of the family class, but rather are the family members of a member of the family class. This makes them not inadmissible under the provisions specified in R117 (9) (d).
It is worth highlighting that R70 (4) states that:
“A foreign national who is an accompanying family member of a foreign national who is issued a permanent resident visa shall be issued a permanent resident visa, if, following an examination, it is established that
(a) the accompanying family member is not inadmissible; . . . “.
This might appear to contradict the provisions specified in R117 (9) (d). However, the intent of R117 (9) (d) is that the sponsor cannot sponsor a person as a member of the family class if that person did not undergo the prescribed examination as part of the sponsor’s application for permanent residence. In the example given above, the sponsor is not sponsoring the child as the dependent child of the sponsor, but rather as the accompanying family member of the principal applicant.
Who Qualifies as a Dependent Child?
The provisions specified in R2 and Section 6 in this chapter describe individuals that qualify as dependent children.
In order to meet R2 (b) (i) of the definition of ‘dependent child’, on the date when the Case Processing Centre in Mississauga (CPC-M) receives the IMM 1344AE, a child will:
- Need to be under 22 years of age and,
- Not a spouse or common-law partner
Similarly, at the time the authorities issue the visa, the child should not be a spouse or a common-law partner. This also holds true for the time when the child arrives in Canada.
It is worth mentioning that the words ‘Not a spouse or common-law partner’ indicate that the dependent child must not be married or involved in a common-law relationship. In the view of the authorities, a dependent child who is single, divorced, widowed or whose marriage the authorities have annulled is not a spouse. Similarly, in case the dependent child was involved in a common-law relationship, but that relationship no longer exists, the authorities might consider the child as meeting the prescribed definition.
The provisions specified in R2 (b) (ii) and R2 (b) (iii) describe children over the age of 22 years whom the authorities could consider dependent children if they are substantially dependent on their parents for financial support. This typically includes:
- Full-time students enrolled in accredited post secondary institutions or,
- Children with a physical or mental condition
In such cases, the officers will need to request for documentary evidence of:
- Full time attendance at school
- The institute’s accreditation with the relevant authority
- The physical or mental condition and,
- The financial dependency on the parents
For more details on dependent children over the age of 22 years, officers will need check out the section titled ‘The Assessment of a Claim that a Dependent Child is a Student’ that appears subsequently in this document.
The Guidelines for Human Reproductive Technologies
In the provisions specified in R2 (a) (i), a ‘biological child’ also includes a child who:
- Is not genetically related to the parent making the application
- Was born through the application of assisted human reproductive technologies and,
- Was born to the parent making the application or to the person who, at the time of the birth of the child, was that parent’s spouse, common-law partner or conjugal partner
Based on this definition, the authorities plan to capture children born to parents through assisted human reproductive technologies such as in vitro fertilisation, who might not share a genetic relationship to those parents. In this case, the female spouse or partner will need to have given birth to the child. In deference to Canadian Family Law, the authorities will consider the spouse or the common-law partner of the parent who gives birth to a child as the other legal parent. This is so even if there is no genetic relationship to the child. In case the child was born through a surrogacy arrangement, the child will legally be the child of the surrogate mother who gave birth, until a subsequent adoption takes place that would serve to create a legal parent-child relationship.
In such cases, the authorities might require documents that serve to establish parent-child relationships. These could include birth certificates or authorised evidence that the person claiming to be the parent is the birth mother or the spouse or common-law partner of the birth mother at the time of the birth. This evidence will need to indicate that the parents availed themselves of assisted human reproductive technologies as well, and that the child was subsequently born to the mother.
The Guidelines for Establishing Identity and Relationship
The authorities require members of the family class to prove their relationship to their sponsors and to their family members.
They have placed the onus on the applicants to provide evidence of their identity and relationships to their sponsor and accompanying family members. As such, they expect the applicants to answer the questions posed truthfully. In addition, they expect the applicants to provide any documents necessary for establishing that they are not inadmissible. This is in accordance with the provisions specified in A16 (1). Applicants who cannot provide satisfactory documentary evidence of a relationship, have the option to undergo DNA testing.
DNA testing typically involves the comparison of DNA profiles extracted from blood samples taken from persons claiming to be biological fathers, mothers or children. If properly conducted, these tests are a highly reliable means for verifying a claimed relationship. This test is also commercially available. For more information on DNA testing, officers would need to refer to OP 1.
The Guidelines for Relationships of Convenience
Officers will need to refuse people who entered into non-genuine marriages, common-law relationships, conjugal partnerships or adoption in order to obtain permanent residence in Canada. This is in accordance with the provisions specified in R4. In the case of a child seeking adoption, the officers will need to remember that the regulation excluding a relationship of convenience from the family class is R117 (1) (g) (i).
Officers would need to have sufficient evidence for supporting a conclusion that a relationship is not genuine. Officers would need to go through the section titled ‘The Guidelines for Identifying Relationships of Convenience’ that appears subsequently in this document. In addition, they would need to go through ‘The Guidelines for Adoption’ specified in OP 3.
In the case notes, the officers will need to explain clearly why, in their view, the relationship is one of convenience.
Sponsors have the ability to submit appeals of refusal on these grounds to the Immigration Appeal Division (IAD).
The Guidelines for Conjugal Relationships – Dissolutions of Convenience
Officers will need to refuse people who dissolve marriages or conjugal relationships and subsequently, resume conjugal relationships in bad faith. This is especially so if the intention was to acquire any status or privilege under the Act. This is in accordance with the provisions specified in R4.1.
Officers would need to have ample evidence for supporting a conclusion that a person dissolved a relationship in bad faith. Officers would need to go through the section titled ‘The Guidelines for Conjugal Relationships – Identifying a Dissolution of Convenience’ that appears subsequently in this document.
Officers will need to explain clearly in the case notes why they found that the person dissolved the relationship in bad faith.
Sponsors have the ability to submit appeals of refusal on these grounds to the Immigration Appeal Division (IAD).
The Guidelines for Adoptions
For more details on processing adoptions and orphaned family members, officers would need to go through OP 3.
The Guidelines Concerning Medical Requirements
The authorities consider members of the family class to be medically inadmissible if the individuals concerned or their family members are likely to be a danger to public health or to public safety. Similarly, the authorities consider members of the family class to be medically inadmissible if the individuals concerned or their family members are likely to cause excessive demands on health or social services. This is in accordance with the provisions specified in A38 (1).
Officers will need to go through OP 15 for more instructions on medical examinations. This chapter explains how officers could interpret medical results for determining whether the applicant is medically admissible as well. In addition, it contains the steps that officers will need to take prior to informing applicants that the authorities have refused their applications for medical reasons.
If the officers find a member of the family class or a family member inadmissible for medical reasons, they would need to refuse the application. This is especially so if the individual provides no new information (refer to OP 15).
For more information on Temporary Resident Permits, officers will need to go through OP 20.
The Exceptions to Medical Inadmissibility
The authorities do not consider spouses, common-law partners and dependent children who are members of the family class inadmissible. This is so even if these individuals have medical conditions that could lead to an excessive demand on health or social services. This is in accordance with the provisions specified in A38 (2) (a).
R24 provides additional exemption from medical inadmissibility, which, in the view of the authorities, might reasonably cause an excessive demand on health and social services for conjugal partners and children seeking adoption.
The Guidelines for Criminal and Security Requirements
The authorities consider members of the family class and their family members admissible to Canada under all sections of A33 – A37 pertaining to criminality and security.
As such, officers would need to establish inadmissibility based on an applicant’s police certificate and background reports and assessments. For more details on determining admissibility on criminal and security grounds, officers would need to refer to:
- The IC Manual
- The Security and Criminal Screening of Immigrants and,
- ENF 2
Officers will need to refuse applicants and their family members who are inadmissible for criminal or security reasons. For more information on Temporary Resident Permits, officers will need to go through OP 20.
The Guidelines Concerning Misrepresentation
The authorities consider a foreign national inadmissible for two years for withholding or misrepresenting information that is material for making a decision on an application. This is in accordance with the provisions specified in A40.
For more information on dealing with such cases, officers would need to refer to section 9 in ENF 2.
When Would Family Members Need to Meet the Prescribed Requirements?
The table that follows highlights the situations when the family members will need to meet the prescribed requirements.
Family Members | When Must the Family Members Meet the Requirements Prescribed? |
Spouse or common-law partner | Meets the definition of spouse of common-law partner as specified in a section that appears subsequently in this document when the Case Processing Centre in Mississauga (CPC-M) receives the application at the time of issuance of the visa and when the family members enter Canada |
Dependent children below 22 years of age |
|
Dependent children over 22 years of age and full-time students | Since before the age of 22 or, if married or a common-law partner before the age of 22, since becoming a spouse or common-law partner, these individuals have been:
|
Dependent children over 22 years of age and unable to support themselves financially because of a physical or a mental condition | Since before the age of 22, these individuals have been:
|
Dependent children of dependent children | Is the dependent child of an accompanying dependent child – based on the provisions specified in R70 (5) when the authorities receive the application and at the time of visa issuance |
The Guidelines for Sponsoring One Other Relative Regardless of Age of Relationship
The authorities provide sponsors to sponsor one relative regardless of age or relationship in certain circumstances. This relative could be any individual connected to the sponsor by blood or adoption. This applies to sponsors who are Canadian citizens or permanent residents, who do not have a living relative or family member whom they can sponsor as a member of the family class such as a living:
- Spouse or a common-law partner
- Conjugal partner
- Son or daughter
- Father
- Mother
- Grandparent
- Brother
- Sister
- Uncle
- Aunt
- Nephew or niece
These sponsors could submit information concerning their family members and relatives on the Family Information Sheet. In some cases, the selected relative might be inadmissible. In this scenario, the sponsor could select another relative.
The Characteristics of Conjugal Relationships
It is worth highlighting that there is no definition of the word ‘conjugal’ in legislation. However, the authorities typically consider certain factors when it comes to determining whether a couple is in a conjugal relationship, based on descriptions specified in court decisions.
Marriage is a status-based relationship. It exists from the day the marriage becomes legally valid until a severance takes place via death or divorce. A common-law relationship (and in the context of immigration, a conjugal partner relationship) is a fact-based relationship that exists from the day on which the two individuals can reasonably demonstrate that the relationship meets the definition specified in the Regulations. It is worth highlighting that this is a significant difference. Despite this, there are several similarities in the two types of relationships. This is because of the history of the recognition in law of common-law relationships and their definition, which typically includes the word ‘conjugal’.
Experts opine that the term ‘conjugal’ originated for describing marriage. Then, with the passage of time, the scope of this term increased based on various court decisions for describing marriage-like relationships i.e. a man and a woman in a common-law relationship. With the M v H decision in 1999, the Supreme Court of Canada further expanded the scope of the term to include same-sex common-law couples.
It is worth mentioning that the word ‘conjugal’ does not denote ‘sexual relations’ alone. It signifies that there is a significant degree of attachment between two partners. The word ‘conjugal’ comes from two Latin words, one meaning ‘join’ and the other meaning ‘yoke’. Thus, when taken literally, the term means ‘joined together’ or ‘yoked together’.
In the M v H decision, the Supreme Court adopts the list of factors that the authorities would typically need to consider when determining whether any two individuals are actually in a conjugal relationship from the decision of the Ontario Court of Appeal in Moldowich v Penttinen. They include:
- Shared shelter e.g. sleeping arrangements
- Sexual and personal behaviour e.g. fidelity, commitment, feelings towards each other
- Services e.g. conduct and habit with respect to the sharing of various household chores
- Social activities e.g. their attitude and conduct as a couple in the community and with their families
- Economic support e.g. financial arrangements, ownership of property
- Children e.g. attitude and conduct concerning children and,
- The societal perception of the two as a couple
The language that the Supreme Court has used throughout the M v H makes it amply clear that a conjugal relationship is one of some permanence. As such, the individuals will be interdependent – financially, socially, emotionally and physically. They will share household and related responsibilities, in addition to making a serious commitment to each other.
Based on this, the following characteristics will need to be present to some extent in all conjugal relationships, whether married and unmarried:
- A mutual commitment to a shared life
- Exclusive – the individuals cannot be in more tan one conjugal relationship at a time
- Intimate – commitment to sexual exclusivity
- Interdependent – physically, socially, financially and emotionally
- Permanent – long-term, genuine and continuing relationship
- Present themselves as a couple
- Regarded by others as a couple and,
- Caring for children (if there are children)
This makes it clear that the authorities will not consider people who are dating or who are thinking about marrying or living together and establishing a common-law relationship as being in a conjugal relationship. Similarly, the authorities will not consider people who want to live together to try out their relationship as being in a conjugal relationship.
People in a conjugal relationship will have made a significant commitment to each other. A married couple makes the commitment publicly at a specific point in time via their marriage vows and ceremony. Thus, the marriage certificate and registration becomes a record of that commitment. In a common-law or conjugal partner relationship, there is not necessarily a single point in time at which the people involved make a commitment. Thus, there is no one legal document that attests to the commitment. Instead, the passage of time together, the building of intimacy and emotional ties and the accumulation of other types of evidence. Such evidence could typically include:
- Naming one another as beneficiaries of insurance policies or estates
- The joint ownership of possessions
- Joint decision-making ability with consequences for one partner affecting the other and,
- The financial support of one another e.g. joint expenses or the sharing of income etc.
All these factors, when taken together, indicate that the couple has come to a similar point as that of a married couple. As such, these facts indicate that there is a significant commitment and mutual interdependence in a monogamous relationship of some permanence.
The Assessment of Conjugal Relationships
Officers could use the following key elements to establishing whether a couple is in a conjugal relationship. These elements typically apply to spouses, common-law partners and conjugal partners.
I – Mutual Commitment to a Shared Life to the Exclusion of All Other Conjugal Relationships
A conjugal relationship typically features a mutual commitment, exclusivity and interdependence. As such, it cannot exist among more than two people simultaneously. The word ‘conjugal’ includes the requirement of monogamy. Therefore, an individual cannot be in more than one conjugal relationship at one time. For instance, a person cannot have a conjugal relationship with a legally married spouse and another person at the same time. Similarly, a person cannot have a conjugal relationship with two unmarried partners at the same time. These would be polygamous-like relationships. Thus, the authorities will not consider these as being conjugal relationships.
However, this does not require an individual in an unmarried conjugal relationship to divorce a legally married spouse. More details on this follow in the section titled ‘What Happens if the Common-Law Partner (Principal Applicant) is Married to Another Person’.
The requirement of exclusivity or monogamy applies in equal measure to marriage, common-law partnerships and conjugal partnerships. As such, the common-law and conjugal partner categories offer no scope for people to get around the restrictions pertaining to bigamy and polygamy. The section titled ‘Polygamous Marriages’ that appears later in this document carries more details on this.
Similarly, common-law and conjugal partner relationships cannot be any more exclusive than ordinary married relationships. Therefore, the authorities do not usually require proof of exclusivity in the assessment of these relationships any more than they would while assessing a regular marriage.
II – Interdependent – Physically, Socially, Financially and Emotionally
The two individuals in a conjugal relationship are interdependent. Thus, they will need to have combined their affairs both economically and socially. The assessment of whether two individuals are in a conjugal relationship would thus, need to focus on the evidence of interdependency.
The following table lists a set of elements which, when taken together or in various combinations, might constitute evidence of interdependency. The officers would need to remember that these elements might be present in varying degrees. As such, not all these elements are necessary for the officers to consider a relationship as conjugal.
Factor | Details |
The financial aspects of the relationship |
|
The social aspects of the relationship |
|
Physical and emotional aspects of the relationship – the degree of commitment as evidenced by |
|
The examples of supporting documents that the authorities typically consider include:
- Family memberships, medical plans, documentation from institutions that provide recognition as a couple
- Marriage certificate (not merely a solemnisation record), wedding invitations, commitment ceremonies (certificates, invitations), domestic partnership certificate
- Joint ownership of possessions, joint utility bills, lease or rental agreements, joint mortgage or loans, property titles, joint bank statements, money transfers
- Documents showing travel together, long distance phone bills, other proof of continuous communication i.e. e-mails, internet chat site printouts, letters etc.
- Insurance policies (documents that name the partner as a beneficiary), wills, powers of attorney
- Significant photographs
- Statements of support from families, bank manager, employers, financial professionals, religious leaders, community leaders, professors, teachers or medical professionals
It is worth mentioning that the above-mentioned elements might be present in varying degrees. As such, it is not necessary for all these elements to be present for the officers to consider a relationship conjugal. The presence or absence of an element could depend on the culture or preferences of the couple. For instance, in some cultures, women have a limited role in the management of the family finances. Thus, there might not be joint ownership of property or joint bank accounts. Similarly, some couples might choose to keep aspects of their financial affairs separate. Yet, they might clearly be in a conjugal relationship and have merged their affairs in other respects.
Therefore, the authorities require officers to consider each relationship individually. In addition, they would need to take into account any other relevant information that the applicant provides (in addition to any information that is otherwise available to the officer) for assessing whether a conjugal relationship exists.
Officers would need to consider the extent to which the laws and / or traditions of the applicant’s home country might discourage the parties from openly admitting the existence of the relationship as well.
Marriage in Canada
The federal and provincial governments share constitutional power with respect to marriage and divorce. The federal government has broad legislative responsibility for divorce. It also has broad legislative responsibility for aspects of the capacity to marry or who can legally marry whom. In contrast, the provinces are responsible for laws about the solemnisation of marriage.
All provincial and territorial Marriage Acts:
- Provide for religious and civil marriage ceremonies
- Require witnesses to a marriage ceremony
- Identify officials or individuals authorised to solemnise a marriage
- Set minimum age requirements for marriage and,
- Might require a medical examination in some provinces
It is worth mentioning that marriages that take place in Canada will need to meet the prescribed federal requirements with respect to capacity (i.e. the right to marry) and provincial requirements concerning solemnisation.
The Minimum Age for Marriage
Without obtaining parental consent, people below certain ages cannot legally marry in Canada. The minimum age for marriage without consent usually varies from one province to another. It is:
- Nineteen (19) years in British Columbia, Newfoundland, Nova Scotia, the Northwest Territories, the Yukon and Nunavut
- Eighteen (18) years in Alberta, Manitoba, New Brunswick, Ontario, Prince Edward Island, Quebec and Saskatchewan
The individuals will need to prove parental consent in case they have married under the provincial age of majority. In addition, sponsors will need to meet the prescribed provincial age requirements.
Foreign national spouses will need to be 16 years of age. Only then would they obtain the recognition of the authorities for immigration purposes. Spouses under the age of 16 years cannot be members of the family class. This is in accordance with the provisions specified in R117 (9) (a). As such, the authorities will refuse sponsorship applications submitted for a spouse under 16 years of age.
Age is an aspect of the capacity to marry that the passage of time can rectify. As such, once an underage spouse turns 16, the spouse becomes a member of the family class. In some cases, the sponsor might have submitted the sponsorship and immigration application when the spouse was under 16 years of age. In this scenario, the officers will need to refuse the application because of the failure to have a sponsorship. This is applicable even if the spouse turns 16 years of age during processing. Therefore, the sponsor will need to re-apply. The Regulations typically require that the applicants meet the criteria for sponsorship at the time of application. This is in accordance with the provisions specified in R133. One of the criteria for this is that the sponsor will need to file the sponsorship application in respect of a member of the family class. This is in accordance with the provisions specified in R130.
The Guidelines for a Valid Marriage – The Degrees of Consanguinity
To contract a valid marriage, a person will need to have the capacity to do so. The term ‘capacity’ includes the element that the two people getting married must not be too closely related. This element goes by the term ‘consanguinity’.
The federal Marriage (Prohibited Degrees) Act forbids marriage between people related lineally by consanguinity or adoption. It also prohibits marriage between siblings, whether brother and sister by whole blood (same parents), half-blood (one common parent) or by adoption.
The following relationships fall into the prohibited degrees, whether by consanguinity or adoption. As such, applicants in Canada will not be able to marry their:
- Grandfather / grandmother
- Father / mother
- Brother / sister
- Half-brother / half-sister
- Son / daughter
- Grandson / granddaughter
- Other lineal relatives including great-grandparents / great-grandchildren
In Quebec, the authorities have repeated these relationships in the Civil Code.
The Guidelines for the Recognition of a Marriage
In Canada, the authorities typically recognise a marriage when it has the legal recognition of the place where it took place. The provisions specified in A16 (1) place the onus on the applicants to prove that their marriage is legal where it took place. As such, a marriage that took place abroad, will need to be valid both under the laws of the jurisdiction where it took place as well as under Canadian federal law.
In some cases, the marriages might have taken place in consulates or embassies. These marriages will need to meet the requirements of the host country, based on the location of the mission. In most cases, people consider a diplomatic mission or a consular post to be within the territory and jurisdiction of the host (or receiving) state. As such, a marriage that takes place in an embassy or a consulate will need to have the legal recognition of the host state in order to make it valid for Canadian immigration purposes. Applicants who marry in embassies or consulates will need to satisfy officers that they have met all the requirements of the host country with respect to the marriage. This also includes meeting the stipulation that the host country recognises marriages that take place in diplomatic missions or consular posts within its jurisdiction. Exceptions to this requirement will be rare. In some situations, officers might have various questions. For this, they would need to refer the matter to the NHQ Selection Branch.
Situations could arise where a proxy marriage takes place at a foreign mission in Canada. In this case, the foreign national will usually give the proxy, while the Canadian resident will be present at the mission for the ceremony. Such marriages will need to meet the legal requirements of Canada – both provincial and federal. Only then would these marriages be legally valid. At this time, no provinces permit proxy marriages. Therefore, these marriages are invalid.
Previously married applicants will need to be legally divorced prior to their remarriage. These individuals will need to prove that their subsequent marriage is legal. In addition, they will need to prove that their divorce was legal as well. They would typically need to prove the legality of their divorce first.
In many countries, polygamous marriages are legal. However, they are not legal in Canada. Therefore, the authorities have excluded them from the definition of marriage. This is in accordance with the provisions specified in R117 (9) (c) (i). In case the officers have doubts on the legality of the marriage or the divorce, they would need to consult the visa office responsible for the country where the marriage or the divorce took place. In such cases, they might need to provide the visa office with all the available documents and information. In case the visa office cannot resolve any doubts, the officers would need to refer the matter to the NHQ Selection Branch.
The Guidelines for People Who Have Undergone a Sex Change
People, who change their sex legally, continue to retain the sex they had at birth for the purposes of marriage. The authorities recognise a marriage to someone who has had a sex change for immigration purposes only if the parties are of the opposite birth sex.
In case the parties are of the same birth sex and have lived together in a conjugal relationship for at least one year, the authorities might consider them as common-law partners for the purposes of immigration.
The Guidelines for the Freedom to Marry
In many cases, the most common impediment to a legal marriage is a previous marriage that the authorities have not dissolved. The dissolution of marriages usually takes place through the death of one of the parties, divorce or annulment.
The Legality of Foreign Divorces
The authorities require visa officers to look closely at foreign divorces. This would enable them to determine if the sponsors or applicants were (or are) legally free to marry again. The issuance of a marriage licence or the remarriage of a couple does not constitute proof that the divorce was legal where it occurred, or that the authorities would recognise the divorce as being legally valid in Canada. It is worth highlighting that the authorities view divorces obtained by fraud or by denial of natural justice as foreign divorces without effect.
The federal Divorce Act of 1985 governs the recognition of foreign divorces. It also provides for the recognition of foreign divorces in cases where the divorce took effect after February 13, 1986, in particular. These divorces will be valid in Canada if either spouse was ordinarily resident in the foreign jurisdiction for one year immediately prior to the application for the divorce.
The Divorce Act also serves to preserve common-law rules that respect the recognition of foreign divorces. For instance, Canadian courts might recognise foreign divorces if:
- The issuance came from a court in a country where neither spouse was ordinarily resident, but where the law of that country (other than Canada) recognises the decree in case one or both the people concerned were ordinarily resident at the time of the divorce
- For instance, consider a situation where a person living in California obtains a divorce in Nevada
- In this scenario, if California recognises the Nevada divorce, then the divorce will also be valid in Canada
- Either party can show that they had a ‘real and substantial connection’ with the foreign jurisdiction at the time of the divorce
- The factors that the authorities might refer to that could indicate the existence of a real and substantial connection include:
- Instances where the person was born in that country
- Instances where the person had family in that country and,
- Instances where the person travelled regularly to that country for spending time in the jurisdiction
- The presence of these factors might be enhanced if the person concerned owned property or conducted business in the jurisdiction
- These factors tend to become relevant because they indicate whether the court in that other country had the proper jurisdiction to hear the divorce when neither of the parties was ordinarily residing there for a year prior to the divorce action
- In case the authorities are able to verify a real and substantial connection and the person concerned obtains a legal divorce in that country, the divorce would be legally valid in Canada
- The factors that the authorities might refer to that could indicate the existence of a real and substantial connection include:
In some cases, it is possible that a divorce, issued by a court in a country where neither spouse was ordinarily resident, but has the recognition of a second country (other than Canada), where one or both parties can show that they had a real and substantial connection to that second country at the time of the divorce, will also be valid in Canada.
For instance, consider a situation where a person, now ordinarily resident in Canada, obtains a divorce in Nevada. However, this person was born in California, still has family there and regularly travels there to spend significant amounts of time, including maintaining a cottage that the party inherited. California legally recognises the Nevada divorce. In this scenario, this divorce will also be valid in Canada. However, the officers might want to seek legal advice from NHQ.
The following table lists the situations that officers could examine along with the likely results in accordance with Canadian law.
The Situation | The Likely Result in Canadian Law |
A person married abroad, immigrates to Canada and resides in Canada, while the spouse remains abroad | Canadian law would recognise the divorce in case the Canadian resident or spouse obtains a divorce where the spouse lives, because the spouse is ordinarily resident in the country that grants the divorce |
Both spouses become permanent residents in Canada and then, one spouse takes up permanent residence in another country | Canadian law would recognise the divorce in case the Canadian resident goes to the country where the spouse has lived for at least one year for obtaining the divorce. This is because the spouse is ordinarily resident in the country that grants the divorce. |
Both spouses become permanent residents in Canada and then, six months later, the spouses obtain a divorce from their native country’s consulate in Canada, which has legal recognition in their native country | Canadian law might not recognise the divorce because neither party was resident in the native country for one year immediately preceding the divorce, unless either party can show a real and substantial connection at the time of the divorce. In this case, officers might need to seek legal advice from NHQ. |
Both spouses become permanent residents in Canada before becoming citizens. Several years later, one spouse returns to their native country and obtains a divorce and remarries. Neither spouse resided in the native country for a year preceding the divorce, but the spouse who obtained the divorce visited the native country on a few occasions | Canadian law will not recognise this divorce because neither party was resident in the native country for the one year immediately before the divorce |
Neither party to the divorce was ever resident or domiciled in the country that granted the divorce | Canadian law does not recognise this divorce. Thus, any subsequent marriage will be void, unless one or both parties can show that they had a real and substantial connection to a country other than Canada at the time of the divorce and the foreign decree would have legal recognition in that country. Officers might find it necessary, in these cases, to seek legal advice from NHQ.
Similarly, if both parties continue to reside in Canada and obtain a mail order divorce in a foreign country, without any real and substantial connection to that country or to another that would recognise the decree, Canadian law would not recognise the divorce. |
Officers would need to exercise caution in cases where neither spouse was ordinarily resident in the foreign jurisdiction for one year immediately preceding the application for the divorce. This is because, in the absence of a Canadian court order, the possibility exists that Canadian law might not recognise the divorce nor any subsequent marriage. In case any doubt exists in the minds of the officers about the validity of a foreign divorce, the visa offices would need to refer the matter to the NHQ Selection Branch. Officers would need to provide detailed information about the facts of the case, when they make their enquiries. In particular, they would need to include a copy of the court judgment (if possible). Applicants also have the ability to choose to seek a ruling on the legal validity of the foreign divorce from the Canadian courts.
The Recognition of a Common-Law Relationship
A common-law relationship is a fact-based relationship. As such, it exists from the day on which two individuals demonstrate that the relationship exists on the basis of the facts. Therefore, the authorities have placed the onus on the applicants to prove that they are in a conjugal relationship. In addition, the applicants will need to prove that they are cohabiting as well, having so cohabited for a period of at least one year, when the Case Processing Centre at Mississauga (CPC-M) receives the application.
A common-law relationship is legally a de facto relationship. This means that the authorities will need to establish this on the facts available in each individual case. This is in stark contrast to a marriage. In a marriage, which is legally a de jure relationship, the relationship is typically established in law.
What is Cohabitation?
The term ‘cohabitation’ denotes living together. Two people who are cohabiting will usually combine their affairs and set up their household together in one abode. For the authorities to consider these individuals as common-law partners, these individuals must have cohabited for at least one year. This is the standard definition used across the federal government. It means continuous cohabitation for one year. As such, it does not apply to intermittent cohabitation adding up to one year. The continuous nature of the cohabitation is a universal understanding based on case law.
As mentioned earlier, cohabitation denotes living together continuously. However, from time to time, one or the other partner might have left the home for work or business travel, family obligations etc. This separation will usually be temporary and short.
Officers will need to refer to the following list of indicators about the nature of the household. These indicators constitute evidence that a couple is in a conjugal relationship and cohabiting:
- Joint bank accounts and / or credit cards
- Joint ownership of residential property
- Joint residential leases
- Joint rental receipts
- Joint utilities accounts e.g. electricity, gas, telephone etc.
- Joint management of household expenditures
- Evidence of joint purchases (especially for household items)
- Correspondence addressed to either or both parties at the same address
- Important documents of both parties that specify the same address e.g. identification documents, driver’s licences, insurance policies etc.
- Shared responsibility for household management, household chores etc.
- Evidence of children of one or both partners residing with the couple and,
- Telephone calls
It is worth highlighting that this list is not exhaustive. As such, officers could consider other evidence as well. In addition, these elements might be present in varying degrees in each case. As such, not all these elements need to be present for proving cohabitation.
How Can Someone in Canada Sponsor a Common-Law Partner from Outside Canada When the Definition Specifies ‘Is Cohabiting’?
Case law highlights the definition of common-law partner as ‘an individual who is ordinarily cohabiting’. After the authorities have established the one year period of cohabitation, the partners could live apart for periods of time without legally breaking the cohabitation. For instance, a couple might separate because of armed conflict, the illness of a family member or for employment or education-related reasons. As such, they might not be cohabiting at present. However, despite the break in cohabitation, a common-law relationship continues to exist of the couple has cohabited continuously in a conjugal relationship in the past for at least one year and intend to do so again as soon as possible. The presence of evidence is necessary that can demonstrate that both parties are continuing the relationship. Such evidence could typically comprise visits, correspondence and telephone calls. For more details on persecution and penal control, officers could go through the section titled ‘The Inability to Cohabit Because of Persecution or Any Form of Penal Control’.
This situation is similar to that of a marriage, where the parties are temporarily separated or not cohabiting for diverse range of reasons, but still consider themselves to be married and living in a conjugal relationship with their spouse. Such couples will usually have the intention of living together at the earliest possible instant.
For common-law relationships and marriage, the longer the period of separation without any cohabitation, the more difficult it would be to establish that the common-law relationship or marriage still exists.
When Does a Common-Law Relationship End?
The authorities consider a common-law relationship to have severed or ended upon the death of one partner. Such relationships could also end when at least one partner does not intend to continue the conjugal relationship. However, the authorities will need to examine the facts of the case for determining whether it is one partner’s intent to stop cohabiting in a conjugal relationship.
What Happens if the Common-Law Partner (Principal Applicant) is Married to Another Person?
The authorities could consider people married to third parties as common-law partners. However, in such cases, the person’s marriage must have broken down and the person (and the married partner) must have lived separately and apart from each other for long enough to establish a common-law relationship. In many cases, the authorities would want evidence that the spouses have lived apart from each other for at least one year. In addition, the authorities would want one spouse and the common-law partner to have cohabited in a conjugal relationship for at least one year. However, the authorities require that a physical separation from the spouse must have taken place for the period of cohabitation with a common-law partner to commence. As such, the authorities will not be able to establish a common-law relationship if one or both parties continue their marital relationships.
Officers will need to be satisfied that a principal applicant is separated from a legal spouse. In this case, the principal applicant will no longer be cohabiting with the legal spouse. Evidence that could be useful in proving this could be in the form of a signed formal declaration that the marriage has ended and that the person has entered into a common-law relationship. In some cases, the officers might require that the person produce additional written evidence of a formal separation or of a breakdown of the marriage. Such written evidence could typically comprise a separation agreement, a court order in respect of the custody of children that identifies the fact of the breakdown of the marriage, documents removing the legally married spouse from insurance policies or wills as beneficiaries (i.e. a change of beneficiary form).
In the circumstances specified above, the officers will not need to examine the legal spouse of the principal applicant. In addition, they will not consider the legal spouse of the principal applicant as a member of the family class, in case the applicant attempts to sponsor this spouse at a later date. This is in accordance with the provisions specified in R117 (9) (d). Officers would need to provide detailed notes in Computer Assisted Immigration Processing System (CAIPS). These notes will need to indicate that the applicant was aware of the consequences of non-examination.
What Happens if the Sponsor’s Common-Law or Conjugal Partner Relationship Breaks Down and the Sponsor Wants to Sponsor a Previously Separated Spouse?
According to the provisions specified in R117 (9) (d), a foreign national is not a member of the family class if they were a non-accompanying family member of a sponsor. Such individuals will typically not need to undergo examination. Thus, the principal applicants (or spouses in Canada) will not be able to sponsor a previously separated spouse who was a non-accompanying family member, because the applicants will not have disclosed details about them or had them undergo the prescribed examination. This is applicable even if the spouse’s common-law or conjugal partner relationship has ended.
In some cases, officers could consider Humanitarian and Compassionate (H&C) considerations. However, they would only do so if the relationship is bona fide. In such cases, the officers would require evidence indicating the re-establishment of a conjugal relationship for a period of at least one year. In such cases, officers will not take a marriage certificate as prima facie proof of a relationship. This is because the marriage had broken down and the authorities had been able to establish the existence of a common-law relationship. For more details, officers would need to review the section titled ‘Dissolutions of Convenience’ that appears subsequently in this document. Similarly, officers would need to go through OP 4 for more details on Humanitarian and Compassionate (H&C) consideration overseas.
Citizenship and Immigration Canada (CIC) excludes certain people from being family class members. This is because the applicants might not have identified these individuals at the time of applying for permanent residence as a refugee or any other class. This exclusion serves to protect the integrity of the family class and to prevent people who misrepresent their family composition from benefiting from the misrepresentation through subsequent sponsorship in the family class. This is in accordance with the provisions specified in R117 (9) (d).
Situations could arise where a sponsorship undertaking pertaining to a spouse, common-law partner or conjugal partner exists and the three-year period of that sponsorship has not ended. In this situation, officers would need to remember that there can be no new sponsorship. This is in accordance with the provisions specified in R117 (9) (b).
The Guidelines Concerning Same-Sex Marriages Within or Outside Canada
The authorities extended same-sex couples’ access to a civil marriage throughout Canada on July 20, 2005. This came about via the provisions specified in the Civil Marriage Act.
Canadian citizens and permanent residents have the ability to apply to sponsor their same-sex partners as spouses. For this however, they would need to possess marriage certificates issued by Canadian provinces or territories on or after the following dates:
- Ontario – June 10, 2003
- British Columbia – July 08, 2003 or,
- Quebec – March 19, 2004
- Yukon – July 14, 2004
- Manitoba – September 16, 2004
- Nova Scotia – September 24, 2004
- Saskatchewan – November 05, 2004
- Newfoundland – December 21, 2004
- New Brunswick – on or after July 04, 2005
- All other provinces or territories – on or after July 20, 2005
The authorities recognise same-sex marriages performed outside Canada for immigration purposes. However, this only applies in case this marriage has legal recognition in the eyes of both the law of the place where the marriage took place and Canadian law. A Canadian citizen or a permanent resident might qualify to sponsor their partner as a spouse, common-law partner or a conjugal partner.
The officers would need to code and process applicants in the family class and the spouse or common-law partner in Canada class only as spouses i.e. FC1 only if they meet above-mentioned criteria. These individuals will need to meet the requirements of a spousal assessment as well. This assessment services to indicate whether the relationship is indeed bona fide. Applicants meeting these criteria, who receive an FC1 coding, will also require the Special Program Code for ‘spouse, same-sex’. This would usually be SSS in Computer Assisted Immigration Processing System (CAIPS) or 403 in the Field Operations Support System.
The Guidelines for Foreign Common-Law Registrations and Same-Sex Marriages
Some countries permit the civil registration of common-law same-sex and / or common-law opposite-sex partners. In some jurisdictions, marriages between people of the same sex are legal as well.
The authorities provide such marriages legal recognition for immigration purposes. However, this only applies in case this marriage has legal recognition in the eyes of both the law of the place where the marriage took place and Canadian law. Similarly, the authorities might recognise same-sex partners who are not married as common-law partners. As such, the officers will need to process these individuals as members of the family class. However, these individuals will need to meet the definition of common-law partner. For more details, officers would need to go through the section titled ‘The Recognition of a Common-Law Relationship’.
In case the people concerned have not been able to cohabit for one year, the foreign national partner could choose to apply as a conjugal partner. But, for this to take place, the couple will need to have maintained a conjugal relationship for at least one year. For more details on this, officers would need to go through the section titled ‘What is a Conjugal Partner?’ that appears subsequently in this document.
The Guidelines for Simultaneous Common-Law or Conjugal Partner Relationships with Two or More People (Polygamous-Like Relationships)
The authorities are clear that no individual can establish a common-law or conjugal partner relationship with more than one person at the same time. The term ‘conjugal’, by its very nature, implies exclusivity and a high degree of commitment. As a result, a conjugal relationship cannot exist among more than two people at the same time. The authorities do not consider polygamous-like relationships conjugal. This is because these relationships do not qualify as common-law or conjugal partner relationships.
The Guidelines for Prohibited Relationships – Common-Law Partners
It is worth mentioning that common-law relationships have most of the same legal restrictions that apply to marriages. This is because the authorities have defined them as conjugal relationships, which legally import these restrictions. For instance, this is very evident in the aspect of prohibited degrees of consanguinity. As such, the list of relationships falling within the prohibited degrees in the Marriage (Prohibited Degrees) Act applies equally to common-law partners as well.
The Regulations prescribe the same minimum age for both spouses and common-law partners i.e. the age of 16 years. This is in accordance with the provisions specified in R117 (9) (a). The authorities permit common-law partners to begin living together prior to attaining 16 years of age. However, they do not accord legal recognition to the relationship until both partners attain 16 years of age. The aspect of parental concept remains implied in the fact that the couple have cohabited long enough to establish the relationship without the parents interfering in the establishment of the relationship.
The Inability to Cohabit Because of Persecution or Any Form of Penal Control
The Regulations consider people in a conjugal relationship for at least one year but unable to cohabit because of persecution or any form of penal control as common-law couples. The term ‘persecution’ typically includes the ‘fear of persecution or any form of penal control’. But, it does not mean that the people concerned must have cohabited and faced persecution as a result, in order for the authorities to consider the couple as common-law couples.
In this context, the term ‘persecution’ refers to actions taken by a state or government to oppress or punish (usually by law), people in certain kinds of relationships (such as people in homosexual relationships). This term could also denote strong social sanctions whereby the culture and mores of the country result in people in common-law opposite-sex or same-sex relationships facing:
- Ostracism
- The loss of employment
- The inability to find shelter or,
- Other similar sanctions
This applies even if such relationships are not actually illegal.
However, in this context, the term ‘persecution’ does not apply to people who claim to be Convention refugees on other grounds. As such, the authorities still require refugees in common-law relationships to meet the definition of common-law partner. This applies to all refugees except those who are applying on grounds of sexual orientation.
The authorities consider penal control to refer to any punitive restriction that authorities typically impose on individuals or groups that do not apply to the general population. As such, two people in a homosexual relationship might, in some countries, be unable to live together. This would typically be the case because the law forbids such relationships. However, this provision does not apply to people in an incestuous relationship. In such relationships, one of the partners will usually be under the minimum age of consent. Alternatively, the authorities might detail one of the partners as a result of what (in Canada) would be offences under the Criminal Code.
Officers would need to assess whether people in the above situation are in a conjugal relationship. It is quite likely that such a couple might not find it easy to provide evidence of being in a conjugal relationship. This is typically because it is highly unlikely that the couple will have been able to combine their affairs in much the same manner as a couple who are able to live openly together.
For assessing whether a relationship is conjugal, officers would need to consider the following types of evidence:
- The knowledge of each other’s personal circumstances (including the background and family situation)
- The duration of the relationship i.e. the longer the duration, the more likely that it is conjugal in nature
- Any documents that predate (by a year or more) the application to immigrate to Canada indicating:
- Travel together
- A chronology of the relationship that details the manner in which the couple first met, the measures they took to overcome customs, religious or family doctrines
- The evidence of support and commitment to each other through shared information on events of importance e.g. births, deaths, family gatherings etc.
- Documents that show how the couple maintained a long-distance relationship and made efforts to live in the same country such as letters to or from foreign officials or government authorities (if applicable) and,
- Photographs that document the relationship, airline tickets, visas, visa denials, long distance phone bills or other proof of continuous communication, testaments or life insurance policies that have been in effect for more than a year in which the person has named the partner as the beneficiary
Note:
- Officers might come across refugees in common-law relationships who have faced separation as a result of military action, civil war, human rights violations etc.
- Officers will need to consider these people as common-law partners
- For this, officers will need to ascertain that these individuals meet the requirements of the definition prior to their separation and also that these individuals intend to resume their relationship
What is a Conjugal Partner?
The authorities created this category for exceptional circumstances. They created this category for foreign national partners of Canadian or permanent resident sponsors who would ordinarily apply as common-law partners except for the fact that they have not been able to live together continuously for one year. This would, in many cases, be because of an immigration-related impediment. In most cases, the foreign partner will not be able to marry the sponsor and qualify as a spouse as well. However, in all other respects, the couple is similar to a common-law couple or a married couple. As such, they would have been in a bona fide conjugal relationship for a period of at least one year.
The authorities legally recognise both marriage and common-law partnerships in Canada for purposes of federal benefits and obligations. It is worth mentioning common-law partnerships could be opposite-sex and same-sex as well. This is in accordance with the provisions specified in Modernisation of Benefits and Obligations Act, June 2000. Therefore, couples would either need to be married or they would need to meet the definition of common-law partner in each statute or regulation in order to be eligible for federal benefits. It is worth pointing out that Immigration and Refugee Protection Act (IRPA) was responsible for bringing Citizenship and Immigration Canada’s (CIC’s) immigration legislation into conformity with the Modernisation of Benefits and Obligations Act, June 2000.
The Supreme Court decisions provide constitutional protection to the choice of not marrying. As a result, Citizenship and Immigration Canada (CIC) cannot order couples to marry in order to immigrate. However, in case the couple is not married, they will need to be common-law partners. This is because Immigration and Refugee Protection Act (IRPA) has no provisions that apply to fiancé or fiancées or intended common-law partners. As a result, a Canadian and a foreign national will need to get married or live together for establishing a common-law relationship first. Only then would they be able to submit sponsorship and immigration applications.
Marriage immediately creates a legal relationship that the authorities recognise for immigration purposes. However, common-law partners will need to meet the prescribed definition for accomplishing this objective of obtaining legal recognition for their relationship. This would also include living together continuously for one year. In the immigration context, officers could come across certain exceptional circumstances where a Canadian is in a conjugal relationship with a foreign national partner and would ordinarily be able to sponsor that person as a common-law partner. However, the two individuals might not have been able to live together continuously for one year. This might usually be because immigration rules prevent them from long stays in each other’s countries. It is worth mentioning as well, that for these individuals, marriage is not usually an available option. This is why the authorities emerged with the conjugal partner category. They meant it to be useful for partners where neither common-law partner status or marriage is possible. This would typically be so because of marital status or sexual orientation (both analogous grounds of discrimination under the Charter), in conjunction with an immigration barrier.
For instance, consider a situation where a foreign partner might be married. However, this individual comes from a country where divorce is not possible. Or, consider a situation where the Canadian and the partner might be in a same-sex relationship. In both scenarios, the partners will probably not be able to obtain long-stay visas for living together in each other’s country and meet the prescribed cohabitation requirement applicable to common-law partners. The other option i.e. marriage will not be available to these couples. This makes them permanently separated, which is both unfair and discriminatory. In these circumstances, the conjugal partner category enables a Canadian to sponsor the foreign national partner. The authorities however, do not want people to use this category for avoiding the usual requirement to be a spouse or a common-law partner prior to immigrating.
For these reasons, the conjugal partner category only applies to the family class. In addition, it only applies to a foreign national sponsored by a Canadian citizen or a permanent resident living in Canada. This category does not apply to the spouse or common-law partner in Canada class. This is because no one in Canada requires this exception.
It is worth mentioning that conjugal partners are exempt from meeting the Low Income Cut Off (LICO) requirements. They are exempt from meeting the excessive medical demand criteria as well. Moreover, the authorities have attached no conditions to their permanent resident visas, even though they will require sponsorship. As members of the family class, their sponsor will have appeal rights.
Conjugal partners can become common-law partners under Canadian law. For this, they will need to meet the prescribed one-year cohabitation requirement. Officers will need to counsel the applicants that the authorities will not consider the applicants and their partners to be in common-law relationships for purposes of other federal benefits and obligations until they have lived together in Canada in a conjugal relationship for at least one year. As such, the applicant’s Confirmation of Permanent Residence form will not indicate their status as a conjugal partner. This is because this relationship has no legal recognition in Canada beyond the purview of the Immigration and Refugee Protection Act (IRPA).
Note:
- A Canadian citizen residing abroad has the ability to sponsor a conjugal partner
- For this, the sponsor and the applicant will need to be residing together in Canada when the applicant becomes a permanent resident
- This is in accordance with the provisions specified in R130 (2)
- However, the situations in which this scenario could take place will usually be rare
Can Conjugal Partners Be Substitutes for Fiancés or Fiancées?
It is worth highlighting that conjugal partners cannot be substitutes for fiancés or fiancées. Citizenship and Immigration Canada (CIC) realised that it no longer wanted to be in the business of assessing future relationships. Neither did it want to ascertain the intention of two individuals to establish and maintain a conjugal relationship. As a result, the Regulations and the Immigration and Refugee Protection Act (IRPA) do not specify any category for fiancés or fiancées. In case they intend to apply as spouses, Canadians and their foreign national fiancés or fiancées will need to get married before the immigration process takes place. Thus, the foreign national will need to be married to the Canadian sponsor and only then, apply to immigrate as a married spouse.
Fiancés or fiancées are typically individuals who intend to marry and intend to establish a conjugal relationship. In many cases, they would not have established a conjugal relationship yet. They will have the intent to combine their affairs and become mutually interdependent, but will not have done so yet. Even if they have a sexual relationship, they would not yet have achieved the level of mutual interdependence that typically characterises a conjugal relationship, even if they intend to do so at some point when they do eventually get married.
Most traditional fiancés or fiancées will not be able to meet the prescribed definition of conjugal partner. This is because they will not have merged their affairs and established the required mutual interdependency. In addition, the authorities require conjugal partners to have established a sexual relationship. As such, it is highly unlikely that traditional fiancés or fiancées will be able to meet this criterion.
The Guidelines for the Assessment of Conjugal Partner Relationships
Foreign nationals who want to immigrate as the conjugal partner of a sponsor will need to provide evidence that the two have maintained a conjugal relationship for at least one year. Officers will be able to find more details on this in the section titled ‘The Guidelines for the Assessment of Conjugal Relationships’. The couple will need to provide evidence that they are in a committed and mutually interdependent relationship of some permanence. In addition, they will need to sow that they have combined their affairs to the maximum extent possible. Because of this, people who are dating or who are thinking about marrying or living together and establishing a common-law relationship are not in a conjugal relationship. By the same yardstick, people who want to live together to try out their relationship are not in a conjugal relationship either.
It is worth pointing out that a conjugal relationship is a marriage-like relationship. People in a conjugal relationship will have made commitments similar to the commitments made through marriage. A married couple typically makes their commitment publicly at a specific point in time via their marriage vows and ceremony. Thus, the marriage certificate and registration are records of that commitment. In a common-law or conjugal partner relationship, there is not necessarily a single point in time at which the couple makes a commitment. Similarly, there is no one legal document that attests to the commitments made. Instead, there will need to be other facts that can attest to this such as:
- The passage of time together
- The building of intimacy and emotional ties and,
- The accumulation of other types of evidence such as:
- Naming each other as beneficiaries of insurance policies or estates
- Joint ownership of possessions
- Joint decision-making with consequences for one partner affecting the other and,
- Financial support of one another i.e. joint expenses or the sharing of income etc.
When taken together, these facts will serve to indicate that the couple has come to a similar point as that of a married couple. Thus, these facts will attest that there is significant commitment and mutual interdependence in a monogamous relationship of some permanence.
In many cases, people who make the level of commitment expected in a conjugal relationship will normally marry or live together. As such, if a foreign national could have married their Canadian sponsor or lived with them, and chose not to do so, it would raise significant questions over whether the couple have the significant degree of commitment that typically characterises a conjugal relationship.
The conjugal-partner applicant will need to explain why they have not been able to live continuously with their sponsor for at least one year. In most cases, there will usually be an immigration impediment to continuous cohabitation. This could typically be the couple’s inability to obtain long-stay visas for each other’s country. It is worth mentioning that non-cohabitation for purely personal or economic reasons will not normally qualify as a sufficient impediment. But, officers will need to assess these reasons on a case-by-case basis. Such reasons could typically include the couple not wanting to give up a job or studies.
Applicants will need to provide evidence that they have seriously considered living together as common-law partners. For instance, they will need to show that they have explored options for living together in each other’s country. For this, they will require work or study permits. They will also require the understanding of how the authorities in their partner’s country would recognise their occupational skills and qualifications. They will require visitor visas, long-term visitor status etc. as well.
Officers would also need to enquire about whether the couple is planning to marry. In case they are planning to marry, then they will be fiancés. As such, they would not have established a conjugal relationship. Officers would need to explain that Canada’s immigration legislation has no category for fiancés or fiancées. As such, the foreign national fiancés or fiancées will need to marry their Canadian sponsor before applying to immigrate as a married spouse.
Some couples might state that they want to live together for a while before they get married. However, these individuals would not qualify as common-law partners. This is because they will not be able to arrange their affairs for meeting the prescribed cohabitation requirement. The authorities did not establish the conjugal partner category to allow couples to try out their relationships by living together prior to getting married. Such individuals are not yet in a conjugal relationship. As such, they are not conjugal partners in the eyes of the authorities. People in conjugal relationships will have already made significant commitments. In addition, they will intend to be together for a significant time or even, on a permanent basis.
The authorities established the conjugal partner category to accommodate those few Canadians with foreign partners, who can neither marry nor live together. As such, the inability to marry cannot be an absolute requirement. This is because it could have the effect of forcing those couples to marry who have expressly chosen not to do so. People who have established and maintained a conjugal relationship for one year and who do not intend to marry might obtain recognition as conjugal partners in the eyes of the authorities. But, this would only be if they have been unable to cohabit because of an immigration impediment or any other serious barrier. The keys by which officers will be able to determine with any certainty whether an individual is a conjugal partner lies in understanding whether the individual:
- Is in a conjugal relationship with the sponsor and,
- Can present a compelling barrier that is impeding the couple’s ability to cohabit continuously
Without continuous cohabitation and the merging of households (which usually takes place when a couple is in a common-law relationship), conjugal partner relationships could well be more challenging to assess than common-law relationships. Officers could refer to the following table. It provides some additional elements for officers to consider when they assess such relationships.
The Factor | The Details |
The span of time the relationship has existed | A conjugal relationship means interdependency, mutual commitment and exclusivity. As such, the establishment of the relationship does not take place when two people meet or when they start to date or even necessarily, when they begin a sexual relationship. Conjugal relationships typically build over a period of time. Therefore, officers will need to assess the facts of each case individually. In general terms, most conjugal partners will usually have known each other for more than one year. |
The amount of time spent together | Officers would need to consider how many times and for how long at a stretch have the two individuals been together. Evidence that officers could refer to could comprise airline tickets, receipts from vacations, passports, leave forms from work etc. |
The reasons why the couple has been unable to cohabit continuously for one year | The applicant will need to explain why they have not been able to cohabit continuously for one year. For instance, there may have been legal impediments to a common country of residence. Thus, the partners might not have been able to obtain long-stay visas or immigrant visas for each other’s countries. In some cases, the couple might have been able to live together, but opted not to do so. In this scenario, it is reasonable for the officer to question whether the relationship is a conjugal relationship. |
The evidence that shows how the couple has maintained the long-distance relationship | Officers will need to consider the volume, the regularity and the style of the communication between the partners. For this, they would need to review long distance calls, other communication, e-mails, letters, recognition of each other’s significant events, family functions etc. |
The evidence of efforts to live in the same country | For this, officers will need to consider airline tickets, visas, work permits, study permits, visa denials, denials of recognition of credentials etc. |
It is worth mentioning that not all the financial, social, emotional or physical factors listed in the section titled ‘The Guidelines for the Assessment of Conjugal Relationships’ denote requirements of any conjugal relationship. These factors are primarily elements that could be present in varying degrees. As such, not all are necessary for any relationship to be of a conjugal nature. For instance, a Canadian and their conjugal partner might not have been able to merge their affairs financially in the same way as a couple living together. As such, they might not yet have joint bank accounts or credit cards etc. In this scenario, officers will need to consider evidence that indicates that the partners have begun merging their affairs to the extent possible, given that they live in different countries.
Note:
- It is worth highlighting that the requirement under the spousal category for a couple to be married before immigrating will not usually apply to people in same-sex relationships who are planning to marry
- This is because such people usually have very few jurisdictions where they can get married prior to coming to Canada
- As such, they will need to apply as common-law or conjugal partners, as long as they meet the prescribed requirements
The Guidelines for Prohibited Relationships – Conjugal Partners
Conjugal partner relationships have most of the same legal restrictions as marriages and common-law relationships. This is because the authorities have defined them as conjugal relationships, which legally import these restrictions. For instance, this is very evident in the aspect of prohibited degrees of consanguinity. As such, the list of relationships falling within the prohibited degrees in the Marriage (Prohibited Degrees) Act applies equally to conjugal partners as well.
The Regulations prescribe the same minimum age for spouses, conjugal partners and common-law partners i.e. the age of 16 years. This is in accordance with the provisions specified in R117 (9) (a).
What Happens if the Conjugal Partner (Principal Applicant) is Married to Another Individual?
The authorities could consider people married to third parties as conjugal partners. However, in such cases, the person’s marriage must have broken down and the person (and the married partner) must have lived separately and apart from each other for long enough to establish a conjugal relationship with another person. In this scenario, the person will need to have lived separated from the legally married spouse and established a conjugal relationship with the conjugal partner and been in that relationship for at least one year. The authorities will not be able to legally establish a conjugal relationship if one or both parties continue in a conjugal relationship with their spouse.
Establishing a conjugal relationship will typically take some time. The authorities expect that the date from which the conjugal relationship exists will be some reasonable time after the occurrence of the separation from the legally married spouse. It is likely that a couple in a conjugal partner relationship might have known each other while one or both was still with their legally married spouse. However, the authorities would not consider them to be in a conjugal relationship until a separation from the legally married spouse actually took place, which led to the establishment of the conjugal relationship. For more details on this, officers would need to go through the section titled ‘What Happens if the Common-Law Partner (Principal Applicant) is Married to Another Individual?’
Officers will need to be satisfied that a principal applicant is separated from a legal spouse. In this case, the principal applicant will no longer be cohabiting with the legal spouse. Evidence that could be useful in proving this could be in the form of a signed formal declaration that the marriage has ended and that the person has entered into a conjugal partner relationship. In some cases, the officers might require that the person produce additional written evidence of a formal separation or of a breakdown of the marriage. Such written evidence could typically comprise a separation agreement, a court order in respect of the custody of children that identifies the fact of the breakdown of the marriage, documents removing the legally married spouse from insurance policies or wills as beneficiaries (i.e. a change of beneficiary form).
In the circumstances specified above, the officers will not need to examine the legal spouse of the principal applicant. In addition, they will not consider the legal spouse of the principal applicant as a member of the family class, in case the principal applicant attempts to sponsor this spouse at a later date. This is in accordance with the provisions specified in R117 (9) (d).
The Guidelines for Internet Relationships
An internet relationship alone will raise serious concerns among officers about whether a conjugal relationship actually exists. This is especially so in case the couple cannot provide other convincing evidence that they have established and maintained a conjugal relationship for at least one year and spent time together. As such, officers will need to assess conjugality based on the elements of interdependency as specified in the section titled ‘The Guidelines for the Assessment of Conjugal Relationships’.
The Guidelines for Switching Categories Between Spouses, Common-Law Partners and Conjugal Partners
The authorities require applicants to indicate the category in which they are applying for immigration to Canada. As such, it is worth pointing out that conjugal partners, common-law partners and spouses are all specific categories with specific requirements.
The authorities do not require officers of the Department to automatically re-assess applications by considering such applications in terms of different relationships between the applicants and the sponsors within the family class. As such, the authorities place the onus entirely on the applicant to indicate what their relationship is to the sponsor. In addition, the applicants are responsible for fulfilling the requirements of the category under which they are applying. Therefore, there is no option to make a general application within the family class, within the conjugal categories, for instance. One of the fundamental principles governing the family class is that members of this class will need to establish themselves as one of certain prescribed members in terms of their relationship with the sponsor. According to the provisions specified in the Regulations, different relationships to the sponsor will correspond to different categories within the class. Hence, applicants will need to self-identify within applications. In addition, they will need to meet the prescribed requirements of the category under which they apply. It is worth highlighting that each of spouses, common-law partners and conjugal partners denote different categories with different requirements. Therefore, applicants will need to identify themselves voluntarily, based on their relationships to the sponsor on the application forms.
However, the authorities require applicants to inform the Department. This is especially so in case aspects of their life change prior to the finalisation of their case. Such instances could typically involve changes to their marital or conjugal status. For instance, a common situation where this could take place might be one where the applicants are in a conjugal partner relationship with a sponsor and the applicant and the sponsor get married. In case their conjugal relationship changes, then officers will need to make the necessary adjustments to the application (including using the right coding). Thereafter, they would need to proceed with processing the application in terms of the new conjugal relationship. For more guidance on procedures applicable to technically illegal marriages follows subsequently in this document.
Until further notice, officers will need to counsel applicants whose marital status changes following a refusal decision to re-apply under the appropriate category. This is imperative in cases where, following the refusal of the conjugal partner application, the sponsor marries the applicant. In this case, for instance, the officers will need to recommend that the applicants use the FC1 category.
The Definitions
The following table lists the definitions to some of the terms referred to in this document.
The Term | The Definition |
Annulment | Annulment is quite distinct from divorce. In contrast to divorce, an annulment effectively means that the marriage never existed. Grounds for annulment of marriages in Canada include bigamy, prohibited degrees of consanguinity or affinity, incapacity, non-compliance with statutory established procedures, errors in identity and duress (i.e. situations where there was no legal capacity on the part of one or both parties to legally marry). If any of these factors were present when the marriage took place, the authorities can annul the marriage. |
Arranged Marriage | Family members or a marriage broker typically arrange such marriages. In many cases, the participants might not have met prior to the marriage, but they will be familiar with each other’s background. The authorities recognise such marriages for immigration purposes. This is especially so because these marriages have legal sanction where they take place. However, these marriages will also need to be legal under federal Canadian law. For more details, refer to the definition of the term ‘Marriage’ that appears subsequently in this table. |
Cohabitation | For meeting this definition, the partners will need to have ordinarily cohabited. In other words, they will need to have lived together continuously for a period of at least one year. However, from time-to-time, one or the other might have to leave the home for work, family obligations, business travel etc. |
Common-Law Partner | This denotes a person who is cohabiting in a conjugal relationship with another person. The couple must have so cohabited for a period of at least one year. This term applies to both opposite-sex and same-sex couples. It is worth mentioning that a common-law partner could be a principal applicant or a family member. |
Conjugal Partner | In relation to a sponsor, this denotes a foreign national residing outside Canada, who is in a conjugal relationship with the sponsor. In this scenario, this foreign national will need to have been in this relationship for a period of at least one year. It is worth mentioning that a conjugal partner can be in an opposite-sex or same-sex relationship. However, a conjugal partner cannot be a family member. |
Dependent Child R2 (a) (i) and (ii) | In respect of a parent, the term ‘dependent child’ refers to a child who:
(a) – has one of the following relationships with the parent, including: (i) Is the biological child of the parent, in case a person other than the spouse or common-law partner of the parent has not adopted the child or, (ii) Is the adopted child of the parent and, |
Dependent Child R2 (b) (i) and (ii) | (b) Is in one of the following situations of dependency such as:
(i) Is less than 22 years of age and not a spouse or common-law partner (ii) Has depended substantially on the financial support of the parents since before being 22 years of age or, if the child became a spouse or a common-law partner before the age of 22 years, since becoming a spouse or common-law partner and, |
Dependent Child R (2) (b) (ii) (A) and
R (2) (b) (ii) (B) |
(b) (ii) Since before attaining the age of 22 years or since becoming a spouse or a common-law partner, as the case might be, has been a student:
(A) Continuously enrolled in and attending a post-secondary institution that has accreditation from the relevant government authority and, (B) Actively pursuing a course of academic, professional or vocational training on a full-time basis or, |
Dependent Child R2 (b) (iii) | (iii) Is 22 years of age or older and has depended substantially on the financial support of the parent since before the age of 22 years and is unable to be financially self-supporting because of a physical or a mental condition |
Family Members | In respect of a person, a family member refers to:
|
Marriage | In Canadian law, a marriage refers to the union of two people to the exclusion of all others. For more information on same-sex marriages, refer to the section titled ‘The Guidelines Concerning Same-Sex Marriages Within or Outside Canada’. A marriage will need to be legal both in the country where the couple got married as well as under Canadian law i.e. the Marriage (Prohibited Degrees Act) with respect to consanguinity and the Criminal Code with respect to bigamy and polygamy. |
Orphaned Relatives and Family Members Under 18 Years of Age | This denotes a person whose father and mother are both deceased. A sponsor’s orphaned brother, sister, nephew, niece, grandson or granddaughter under 18 years of age and unmarried, and not a common-law partner, is a member of the family class. This is in accordance with the provisions specified in R117 (1) (f). |
Polygamous Marriage (Bigamy) | Polygamous marriages and potentially polygamous marriages take place when either of the participants already has a spouse and has gone through or intends to go through a further marriage ceremony without divorcing the first spouse. For Canadian immigration purposes, the provisions specified in R117 (9) (c) (i) do not legally recognise marriages that took place when the sponsor or spouse was married to another person. As such, the authorities only recognise the first marriage. For more details, refer to the section titled ‘The Guidelines for Polygamous Marriages’ that appears subsequently in this document. |
Proxy Marriage | At a proxy marriage, one of the participants will usually not be present and will have named a proxy to represent him or her. The authorities consider proxy marriages to be legal marriages for immigration purposes if the law of the country in which the marriage ceremony took place permits proxy marriages. However, these marriages will also need to be legal under Canadian federal law. Refer to the definition of the term ‘marriage’ given in this table. In addition, refer to the section titled ‘The Guidelines for Marriage in Canada’. |
Relative | This refers to a person who is related to another person by blood or adoption |
Relationship of Convenience (Bad Faith) | This refers to a marriage, common-law relationship, conjugal partnership or an adoption that is not genuine, which the participants entered into primarily for the purpose of acquiring any status or privilege under the Act. Individuals involved in relationships of convenience will not be members of the family class. |
Spouse | A spouse denotes a married person. A spouse could be a principal applicant or a family member. For more information on spouses, officers will need to go through the definitions of ‘Marriage’, ‘Common-Law Partners’, ‘Conjugal Partners’ and ‘Marriages of Convenience’ given in this table. In addition, they will need to go through the section titled ‘The Guidelines for Relationships of Convenience’. |
Technically Illegal Marriage (not Legally Recognised) | Some marriages might not be legal where they took place. This would usually occur because of defects in capacity (i.e. who can marry whom), a marriage in an embassy does not have recognition in the host country, religious prohibitions, forms of ceremony not permitted etc. Despite not being legal in the country where the ceremony took place, the marriage will have legal recognition in Canada. In case the relationship between the sponsor and the applicant is genuine and the relationship meets the prescribed requirements of a common-law or conjugal partner relationship, the officers will process the application as such. For more detailed information, officers will need to refer to the section titled ‘The Guidelines for Illegal Marriages’ that appears subsequently in this document. |
Telephone Marriage | This refers to a marriage in which one of the participants is not physically present and is not represented by a proxy. However, the participant participates directly by telephone. This is a legal marriage if it has legal recognition according to the law of the place where it took place. It is also a legal marriage for immigration purposes as long as it complies with the prescribed Canadian federal requirements, with respect to consanguinity and bigamy / polygamy. |
Tribal Marriage | Tribal marriages or customary marriages carried out according to tribal customs are valid for immigration purposes. However, they will need to have legal recognition in the place where they occur. It is worth mentioning that tribal marriages usually have no records. |
The Procedures for Processing an Application
The Procedures for Processing Applications for Spouses, Common-Law Partners, Conjugal Partners and Dependent Children (FC Redesign)
In the case of sponsored spouses, common-law partners, conjugal partners and dependent children residing outside Canada, the applicants will need to submit the following documents directly to the Case Processing Centre in Mississauga (CPC-M):
- A completed application – including the sponsorship application i.e. IMM 1344AE
- The immigration application i.e. IMM 0008GEN and,
- The proof of payment of the appropriate fees
The Case Processing Centre in Mississauga (CPC-M) will need to assess the sponsor’s eligibility. In addition, it will need to review the IMM 0008GEN for ensuring that it is complete and signed. On confirming this, the Case Processing Centre in Mississauga (CPC-M) will need to send the application to the visa office for processing. Officers might require details on procedures pertaining to sponsorship assessment, discontinuation of sponsorship and the refund process. For this, they will need to go through sections 9, 12, 13, 14 and 17 of IP 2. Officers will need to send the sponsorship recommendations to the visa office electronically. Officers will usually send these recommendations via Computer Assisted Immigration Processing System (CAIPS).
Note:
- It is worth highlighting that the above-mentioned application process does not apply in cases of adoptions
- The following section titled ‘The Procedures for Other Members of the Family Class’ provides details on the sponsorship process involving cases of adoption
- Similarly, section 7 of OP 3 carries details on the process related to applications for permanent resident visas
The Procedures for Other Members of the Family Class
For all other family members, the applicants will need to submit the sponsorship application (i.e. IMM 1344AE), the proof of payment of fees and the supporting documents to the Case Processing Centre in Mississauga (CPC-M) for assessment. Applicants will need to do this for children who are adopted abroad by parents who are residents of Canada as well. The Case Processing Centre in Mississauga (CPC-M) will usually notify the visa office about their assessment of the sponsorship. They will usually send the notification via Computer Assisted Immigration Processing System (CAIPS). In addition, the Case Processing Centre in Mississauga (CPC-M) will also instruct Docupost to send a family class application to the sponsor, so that the sponsor can send it to the prospective applicant.
The sponsored family member will need to complete and send the application or submission directly to the appropriate visa office. On receiving a completed IMM 0008GEN, the visa office will need to:
- Verify Computer Assisted Immigration Processing System (CAIPS) for determining whether it has received the sponsorship assessment that supports the immigration application or submission
- Ensure a correct match up of sponsorship and immigration information before any processing takes place
- Return the submission to the applicant in case the visa office has not received the sponsorship assessment from the Case Processing Centre in Mississauga (CPC-M)
- In this scenario, the visa office will also need to include a letter to the applicant informing the applicant that the visa office cannot commence processing the application until the applicant submits a sponsorship application to the Case Processing Centre in Mississauga (CPC-M)
- Verify the immigration submission or application to ensure that it satisfies the prescribed requirements specified in R10 and R11 and is correctly completed and signed, in case the visa office has received the sponsorship assessment from the Case Processing Centre in Mississauga (CPC-M)
- Return the IMM 0008GEN to the applicant in case the IMM 0008GEN does not satisfy the requirements prescribed in R10 and R11 or in case the IMM 0008GEN is not complete or not signed
- In this scenario, the visa office will also need to include a letter to the applicant informing the applicant that the visa office cannot commence processing the application until the applicant submits a correctly completed and / or signed application
- Date stamp the application as received in case the IMM 0008GEN satisfies the requirements prescribed in R10 and R11 and if the IMM 0008GEN is correctly completed and signed
- In this scenario, the visa office will also need to ensure that the applicant has included all the supporting documents and schedules
- In addition, the visa office will need to ensure that the applicant has attached photographs of the principal applicant and each family member (whether accompanying or not) with names and dates of birth printed at the back of the photograph
- Enter all the required processing information pertaining to both the applicant and the family members into Computer Assisted Immigration Processing System (CAIPS), thereby creating the electronic record
- The visa office would need to enter the date of receipt of the application in the ‘Application Received’ field
In some cases, officers might find that they require additional information. Alternatively, they might find that some supporting documents are missing. In this scenario, the officers will need to send written notifications to the applicant, requesting the missing documents and / or information. For more details, refer to the section titled ‘The Time Limit for Submitting Supporting Documents or Information’ that appears subsequently in this document.
The Procedures for Creating a Family Class File
Visa offices will typically create one file for all the applicants listed on the same undertaking. However, it might need to open separate files for each child. This is especially so in case a parent in Canada sponsors two or more children.
Visa offices might open separate files for children sponsored by one parent and listed on the same undertaking as the other parent. These individuals will need to be members of the family class in their own right. This is appropriate in cases where the sponsored parent is inadmissible, but the officers can issue visas to the children.
Note:
- It is worth highlighting that the legislation precludes issuance of immigrant visas to a foreign national whose family members are inadmissible
- This is in accordance with the provisions specified in A42
The Time Limit for Submitting Supporting Documents or Information
Sponsored members of the family class will need to submit supporting documents or information, along with their submissions. The authorities have specified these details in the application guide. Thereafter, the visa office will need to determine whether the submission satisfied the provisions specified in R10 and R11. In addition, the visa office will also need to consider whether it can consider the submission to be an application and date stamp it as received. Once the visa office date stamps the application, it will need to ensure that it has received all the required supporting documents. In case it finds that the documents are missing or if the information provided is not sufficient, the visa office will need to notify the applicants:
- That they have 90 days for providing the missing information
- It is worth highlighting that the time frames might vary based on the documentation required and the circumstances of the case and,
- That failure to provide the missing information by the specified deadline might lead to a refusal
The 90-day period typically commences on the date of the visa office’s written notification to the applicant. The processing will typically resume in case the applicant submits the missing information within the stipulated 90-day period. However, some applicants might not submit the missing information within the stipulated 90-day period. In this scenario, the visa office will continue processing the application to a decision. In these circumstances, officers will need to base their decision on the information that is available and before them.
The Procedures for Reviewing an Application
Officers will need to review the file and consider the details given in the following table:
The Assessment Factors | The Reference to Refer to |
Does the number of family members on the IMM 0008GEN form, whether accompanying or not, coincide with the number of persons listed on the IMM 1344AE? | The ability of the sponsor to meet sponsorship requirements – Section 10 of OP 2 |
Does the sponsor still meet all the prescribed eligibility requirements? | A sponsor, Section 5.9 of IP 2 |
Is the sponsor reportable under the provisions specified in A44 (1)? | Sponsor reportable under A44 (1), Section 10.5 of OP 2 |
Is a background check necessary? If yes, proceed with a request for the background check. | IC, Security and Criminal Screening of Immigrants |
Is an interview required? If yes, proceed immediately with scheduling. | Conducting interview, Section 10.7 of OP 2 |
Is the sponsor a resident of Quebec? | Sponsorships from persons residing in Quebec, Section 10.7 of OP 2 |
Are there concerns related to relationships with family members? | Identifying a relationship of convenience, Section 12 of OP 2 |
The Procedures for Closing a File
Officers will only be able to refuse a case if the applicant has submitted an IMM 1344AE and an IMM 0008GEN. If an applicant has not returned the IMM 0008GEN by the deadline, officers will not be able to refuse the applicant. In such cases, the visa office will need to:
- Retire the file
- This will involve recording the case closed decision in the case file notes
- The visa office will need to ensure that it does not enter any decision
- In addition, the visa office will need to give the file a retirement date
- Inform the applicant in writing that the officers have closed the file
- The officers will need to send copies of this letter to the sponsor and to the Case Processing Centre in Mississauga (CPC-M)
In some cases, the sponsor might request discontinuation of the application. In this scenario, the Case Processing Centre in Mississauga (CPC-M) will need to refund the Right of Permanent Residence Fee (RPRF) and the Permanent Resident Application Fee.
It is worth mentioning that the sponsor has no right of appeal in case the authorities have not made a decision regarding the issuance of a permanent resident visa. This is in accordance with the provisions specified in A63.
What Should Officers Do if the Applicant Adds a Family Member to the Application During Processing?
During the processing of the application, the applicant can add new family members to the application. Similarly, non-accompanying family members could become accompanying family members in the application of a person applying in the family class during the processing of an application. On occasions, it is possible that a child might take birth in the applicant’s family subsequent to the issuance of the visa but prior to obtaining permanent resident status. In these cases, it might not be necessary to create a new file and commence processing it all over again. All that the officers would typically need to do is to add the child to the sponsorship. Thereafter, the applicant will need to pay the processing fee and ensure that the child undergoes a medical examination. For more details on the manner of proceeding in these cases, officers will need to go through the Computer Assisted Immigration Processing System (CAIPS) user guide.
In some cases, the officers might feel that the applicant might no longer be able to meet the income test (if applicable) as a result of the addition of the new family member. In this scenario, the officers would need to request the Case Processing Centre in Mississauga (CPC-M) to carry out a reassessment. The visa office will need to determine if the applicant continues to meet the income test, based on the Case Processing Centre in Mississauga’s (CPC-M’s) initial assessment of the sponsor. In case the sponsor still meets the income test, the visa office will need to request the Case Processing Centre in Mississauga (CPC-M) to add the new family member to the IMM 1344AE and the IMM 1344BE.
In case the sponsor does not meet the income test, the officers will need to refuse the application. For more details on this, refer to Section 17 of OP 2.
In case a sponsor provides an undertaking to the province of Quebec, the visa office will need to refer the case to Service aux garants et aux candidats à l’immigration.
It is worth mentioning that officers should not issue permanent resident visas until they receive confirmations from the Case Processing Centre in Mississauga (CPC-M) that the sponsor has added the family member to the IMM 1344AE and the IMM 1344BE. The visa office will need to ensure that applicants add the family member to the copy of the sponsorship agreement. This is especially so if the family member is the sponsor’s spouse, common-law partner or conjugal partner or if the family member is over 22 years of age. The family member will need to sign the agreement as well.
The Procedure for Conducting Interviews
Officers will need to interview applicants and their family members only when it is essential for assessing an application. As such, officers have the ability to waive the interview requirements whenever possible. Interviews can be useful for helping to confirm applicants’ identities. At the same time, they can help to confirm the applicants’ relationship to sponsors or other family members. Besides this, interviews might also be useful for clarifying any questions about applicants’ admissibility.
Officers will need to conduct interviews at a visa office or any other appropriate location. They will need to ask the applicants to bring along any documents necessary for the selection decision. In some cases, the officers might suspect a relationship of convenience. In this scenario, the officers might wish to interview the applicants (and the sponsor wherever applicable) separately. The authorities expect officers to focus interviews on the information essential for the decision.
For more details on the manner in which officers will need to interview applicants, officers will need to go through OP 1.
The Procedure for Establishing Identity and Relationship
Applicants could typically establish their identity and relationships with birth or baptismal records and marriage certificates. However, in some cases, officers might find that the birth or marriage documents are unreliable. In this scenario, officers can accept other types of official records. Examples of documents that officers could typically accept in such cases include:
- Voter’s registration lists
- Military records
- Baptismal certificates
- Old passports
- Income tax forms
- School records
- Household registries
- Hospital records
- Identity cards
- Old immigration records and,
- Notarised letters from reliable bank officers, religious leaders, police authorities or civic and other government officials
Officers will need to be familiar with the types of documentation and prevalence of fraudulent documents in their areas of responsibility.
It is worth mentioning that any document on its own might well end up failing to establish identity or relationship. Therefore, officers will need to ensure that the documents provided by the applicant are consistent with the others. Thereafter, the officers will need to weigh these documents based on their reliability and relevance. For instance, one household registry alone might not be reliable. Hence, officers will need to corroborate it with several earlier registries for the same household. Alternatively, they might need to corroborate it with hospital birth records and national identity cards.
In addition, officers will need to be aware of documents issued to replace lost or stolen documents or identity cards. For this, they will need to look closely at identity or relationship records that post-date interest in immigration. As such, self-serving statutory declarations carry little weight unless they pre-date interest in immigration.
It might also be helpful to compare documents with those provided by other members of the same family or against old immigration files for the same family.
When in doubt, officers could consider consulting:
- The visa office that processed any other application for permanent residence or,
- The visa office responsible for the applicant’s country of citizenship or,
- The issuing agency of the document
In some cases, officers might find that they cannot establish the relationship through normal channels. In this scenario, they will need to offer applicants the option of undergoing DNA testing. For more details on this, officers will need to go through:
- The Guidelines for Establishing Identity and Relationship i.e. Section 5.15 of OP 2 and,
- Sections 5.9 to 5.12 of OP 1
The Procedures for Gauging the Ability of the Sponsor to Meet Sponsorship Requirements
The provisions specified in R133 specify certain requirements that the sponsor will typically need to meet. In all cases, the sponsor will need to provide an undertaking for assisting a sponsored immigrant and any family members to become successfully established. In addition, immigration officers will need to be convinced of the sponsor’s ability to help a sponsored immigrant and any family members to become successfully established, where applicable. Officers will need to refuse the application if they find that a sponsor does not meet the requirements specified in the Regulations.
Sponsors will need to indicate on their sponsorship application whether they wish to proceed with the sponsorship. This is necessary even if they do not meet the requirements to sponsor. If not, a sponsor has the ability to discontinue the sponsorship application and receive a refund of all, but the sponsorship processing fee. In some cases, however, the sponsor might indicate that they wish to proceed with the sponsorship application. In this scenario, the officers will need to send the sponsorship application to the visa office. On receiving the application for permanent residence, the visa office will use the information available for assessing whether the authorities should consider accepting the application or refusing it. This is in accordance with the provisions specified in A11 (2) and R120. For cases approved with Humanitarian and Compassionate (H&C) consideration, officers will need to use the code FCH. For more details, officers will need to go through Section 12 of IP 2.
The Procedure for the Financial Test of the Sponsor
The Case Processing Centre in Mississauga (CPC-M) will need to indicate whether or not the sponsor has met the financial test, wherever applicable. It will determine this by considering the number of persons in Canada for whom the sponsor is responsible. It will typically include people who are the subject of another undertaking signed or co-signed by the sponsor. In addition, it will include the number of people included on the sponsorship undertaking, including non-accompanying family members. It is worth mentioning that exceptions exist for the requirement for a sponsor to meet the minimum necessary income test. For more details on this, officers will need to go through the provisions specified in R133 (4).
The Procedure for Changes in Family Size
After the Case Processing Centre in Mississauga (CPC-M) makes its initial assessment, it is quite likely that the family size might increase or decrease. The changes could affect the minimum necessary income that the authorities typically expect a sponsor to meet. The Case Processing Centre in Mississauga’s (CPC-M’s) information, along with the sponsorship details, typically includes the maximum number of people for whom the sponsor meets the income test. As such, officers will need to compare the family size prior to visa issuance with this maximum number. If the family size prior to visa issuance is equal to or less than this maximum number, the sponsor meets the prescribed financial requirement. For more details on the financial assessment of a sponsor, officers will need to go through IP 2.
The Procedures for Sponsors Who Do Not Meet the Income Test
Visa offices will usually receive undertakings from sponsors who need to meet the income test, but who do not meet it. In case the sponsor does not meet the financial test, the staff at the Case Processing Centre in Mississauga (CPC-M) will need to send a copy of the Work in Progress (WIP) transcript. In addition, they will need to send a detailed explanation that highlights why the application to sponsor is not met. Moreover, the Case Processing Centre in Mississauga (CPC-M) will also need to send the Financial Evaluation i.e. IMM 1283E. This document details a sponsor’s financial situation. The authorities will need to refuse the application under the provisions specified in A11 (2) pursuant to R120 (a) and R133 (1). This is especially so in case the sponsor does not fall into one of the categories specified in R133 (4).
Sponsors of dependent children and of spouses, common-law partners or conjugal partners (unless they have dependent children who have dependent children of their own) do not have to meet any financial requirements. But, they will need to undertake to provide for the basic necessities of the sponsored applicants. This is necessary to ensure that the applicants do not need social assistance. The authorities could refuse applicants for financial reasons under the provisions specified in A39. This is especially so in case the applicants are unable or unwilling to support themselves and their dependent children. Similarly, the authorities could refuse applicants in case there are not adequate arrangements for the care of themselves and their dependent children. Officers will need to consider the sponsor’s financial situation and willingness to assist. In addition, they will need to consider the financial situation or the employment prospects of the applicant, if applicable.
The Procedures for Reassessing a Financial Test
In some cases, officers could ask the Case Processing Centre in Mississauga (CPC-M) to reassess the sponsor’s income. The provisions specified in R120 permit the reassessment in case the sponsor is no longer able to meet the income test. The authorities have based the new calculation on the 12-month period prior to the date that the officer receives the new information and determines that a reassessment is necessary.
Officers should only consider requesting for reassessments when an applicant has met all the other requirements. For more details, officers will need to go through the section titled ‘The Assessment of Adequate Arrangements’ that appears subsequently in this document.
The Procedures for Sponsors Who Might be Subject to an A44 (1) Report
Officers will not be able to make a final determination on an application for permanent residence if a permanent resident sponsor or co-signer is the subject of an A44 (1) report. This is in accordance with the provisions specified in R136.
In some cases, sponsors who become permanent residents on the basis of never having been married, attempt to sponsor spouses they married prior to immigrating. Similarly, sponsors who became permanent residents as single children might attempt to sponsor common-law partners with whom they lived in conjugal relationships prior to immigrating. In such cases, the officers could consider reporting the sponsor pursuant to the provisions specified in A44 (1) for misrepresenting a material fact. This is in accordance with the provisions specified in A40 (1) (a). In addition, officers could also consider reporting the original sponsor of a family member who misrepresented their marital status under the provisions specified in A44 (1).
Officers might come across situations where they have reason to believe that a sponsor might be subject to an A44 (1) report for this or for other reasons. In this scenario, they will need to provide the relevant details to the Case Processing Centre in Mississauga (CPC-M).
The Case Processing Centre in Mississauga (CPC-M) will need to:
- Decide whether or not to refer the sponsor to Citizenship and Immigration Canada (CIC) for the officers to write an A44 (1) report and, if the officers take a decision to do this, transfer the sponsorship to an inland office of Citizenship and Immigration Canada (CIC)
- Ensure that the officers write up the sponsor
- Inform the visa office of the name of the Citizenship and Immigration Canada (CIC) office responsible for the investigation and decide on a course of action and,
- Ensure that they provide the results of the investigation to the visa office
During an investigation of a sponsor, visa offices will need to:
- Suspend the processing of the application
- Inform the applicant of the reason for the delay and,
- Enter a Work in Progress (WIP) i.e. X1016 in Computer-Assisted Immigration Processing System (CAIPS) for indicating a delay in processing
Such cases might be common at visa offices. Therefore, officers will need to monitor them regularly. Officers will need to report delays in finalisation due to pending A44 (1) reports to their geographic desk in the International Region as well.
The Procedures for Changes in a Sponsor’s Circumstances
It is worth mentioning that a sponsor’s circumstances could change after the initial assessment of the Case Processing Centre in Mississauga (CPC-M). In some cases, officers might have reason to believe that a reassessment of the sponsor is material to the visa decision. In this scenario, the officers will need to ask the Case Processing Centre in Mississauga (CPC-M) to investigate further.
The Case Processing Centre in Mississauga (CPC-M) will need to inform visa offices when a sponsor’s circumstances change in any way that might affect the sponsor’s ability to meet any of the prescribed sponsorship requirements. This is in accordance with the provisions specified in R133.
Officers might issue permanent resident visas to members of the family class. However, they would only do so if a sponsorship undertaking is still in effect. This is in accordance with the provisions specified in R120.
The Procedures for Sponsorships from People Residing in Quebec
It is worth mentioning that the Service aux garants et aux candidats à l’immigration informs the sponsor in case the authorities approve or refuse an engagement. In approved cases, the Service aux garants et aux candidats à l’immigration will typically need to send the sponsor three copies of the engagement.
One of the copies will typically bear the notation Copie conforme Service aux garants et aux candidats à l’immigration #_____. It will bear a Service aux garants et aux candidats à l’immigration stamp as well. In addition, it will carry the ministerial decree number and the number of the employee authorised for signing the engagement.
The sponsor will need to send the copy bearing the notation, stamp and the number to the sponsored applicant. Thereafter, the sponsored applicant will need to attach this to the application for a permanent resident visa.
In some cases, the sponsor might not meet the prescribed federal criteria. In this scenario, the Case Processing Centre in Mississauga (CPC-M) will need to forward the IMM 1344AE to both the Service aux garants et aux candidats à l’immigration and the visa office. In addition, the Case Processing Centre in Mississauga (CPC-M) will need to send a note explaining which federal sponsorship criterion the sponsor is not meeting. In case the sponsored person submits an application for a permanent resident visa, the visa office will need to refuse the case without waiting for a response from the Service aux garants et aux candidats à l’immigration.
Officers will need to send a copy of the refusal letter or file closure letter to the Service aux garants et aux candidats à l’immigration in Canada and not to the Service d’immigration du Québec (SIQ). This is especially so in case they refuse the application or the applicant withdraws it. This also applies in case the applicants advise the officers that they do not plan to use the visa.
The Exclusion from Membership in the Family Class – R117 (9) (d), R117 (10) and R117 (11)) [Former OM OP 03-19]
The authorities require the applicant and the applicant’s family members to meet the requirements of the legislation. This applies to both accompanying and non-accompanying family members. Details on this are present in the previous legislation and the Immigration and Refugee Protection Act (IRPA). In addition, there are no exceptions to the requirement that applicants need to declare all family members. With a few exceptions, this also means that the officers would need to examine all family members as part of the process for achieving permanent residence.
The authorities require officers to be open to the possibility that some clients might not be able to make some family members available for examination. For instance, in some cases, the officers might find that an applicant has done everything in the applicant’s power to facilitate the examination of the applicant’s family members by the officers. But, despite the applicant’s best efforts, the officers might not be able to examine these individuals. In this scenario, the officers would need to make the applicant aware of the consequences of the non-examination of the family members i.e. the applicant will not be able to sponsor these family members at a later date. Once the officer is satisfied that the applicant is aware of the repercussions of the non-examination of some family members, then the officer could continue processing the application. This is because a refusal of the application for non-compliance would not be appropriate, when given the fact that the applicant has cooperated with the officers to the fullest extent.
Officers would need to decide on a case-by-case basis on whether to proceed with an application even if they have not examined all the family members. For this, they would typically need to rely on their common sense and good judgement. Some typical examples of such situations could include cases where:
- An ex-spouse refuses to allow the officers to examine a child or,
- An overage dependent refuses to allow the officers to examine the person
It is worth mentioning that proceeding in this manner would usually be a last resort only. As such, the officers would only opt for this once they are convinced that the applicant cannot make the family member available for examination. This is because the applicants themselves cannot choose to bring a family member for examining to the authorities.
The provisions specified in R117 (9) (d), R117 (10) and R117 (11) aim to ensure that people whom the sponsor made a conscious decision to exclude from their own applications for permanent residence cannot later derive the benefits of sponsorship from this same person as a member of the family class. This is applicable in case the sponsor did not declare these family members in the application for permanent residence or in case the sponsor failed to provide the requisite support and cooperation to bring these family members for examination by the authorities.
However, situations could arise where the applicant declares a family member, but Citizenship and Immigration Canada (CIC) decide not to examine the person. This would usually occur on account of an administrative decision or for policy reasons. In some cases, this could take place because of an administrative error as well. In such instances, the authorities will not exclude the family member from membership in the family class.
But, a sponsor will not be able to sponsor a family member if an officer determined at the time the sponsor previously submitted the application for permanent residence that:
- The authorities notified the sponsor that they would examine the family member and that the sponsor was able to make the family member available for examination but did not do so or,
- The family member was able to appear for the examination but did not appear for it
The officers are currently processing many family class cases that have sponsors who immigrated to Canada under the previous legislation. Under the provisions specified in the previous legislation, certain people did not require undergoing the prescribed examinations as part of the application. Or, in some cases, the officers could not examine certain people because of an administrative policy or decision that Citizenship and Immigration Canada (CIC) took.
At present, there are two categories of people who fall into these categories. These comprise:
- The family members of an applicant for refugee status who did not need to undergo the prescribed examination as part of the application
- It is worth mentioning that in accordance with the provisions specified in the current regulations i.e. R176, the non-accompanying family members of a protected person do not need to undergo examinations
- As such, the officers will not exclude them from the family class in a subsequent sponsorship
- This applies to all non-accompanying family members of a protected person who is seeking to remain in Canada as a permanent resident
- The overseas family members of Humanitarian and Compassionate (H&C) applicants
- Citizenship and Immigration Canada (CIC) did not permit applicants making Humanitarian and Compassionate (H&C) applications in Canada to specify the details of their overseas family members as part of the application
- As such, Citizenship and Immigration Canada (CIC) did not consider examining these overseas family members
In addition, under the previous legislation, certain provisions enabled the application to proceed even though the applicant made a decision of not letting the officers examine a family member. This usually happened in cases where:
- A dependent child was in the custody of the sponsor’s spouse or ex-spouse or,
- The applicant had been formally separated from the spouse
What Are the Consequences of No Examination in Cases Where Citizenship and Immigration Canada (CIC) Made the Decision Not to Require the Examination of Family Members?
It is worth highlighting that the exclusion of R117 (9) (d) does not apply to certain applicants. In particular, it does not apply in case the authorities establish that an officer determined that the applicant did not require undergoing an examination as applicable, under the provisions specified in the Immigration and Refugee Protection Act (IRPA) or the former Act. The officer would usually make this determination during the course of the sponsor’s own application for permanent residence. In such cases, the applicant would typically have been a family member of the foreign national who has subsequently become a sponsor. This is in accordance with the provisions specified in R117 (10).
The key notion for the authorities to mull over in this situation is whether it was the decision of the officer who decided that the authorities did not require to examine the family member, leading to the authorities not examining the family member concerned. In most cases, officers would determine that they do not require examining the family member after they have been fully informed of the existence of the family member, based on the truthful declaration of the foreign national, who subsequently became a sponsor. In case an officer made the decision for not examining the family member, the provisions specified in R117 (9) (d) will not apply in respect of that particular family member. As such, the authorities will not exclude that particular family member.
It is worth highlighting that the provisions specified in R117 (9) (d) do apply to applicants in case officers determine that they could have examined certain applicants during the sponsor’s own application for permanent residence, but the sponsor chose not to make the applicant available for examination or if the applicant decided not to appear for the examination. This is in accordance with the provisions specified in R117 (11). In this scenario, the choice rests with either the sponsor or the applicant and not with an officer of the Department. As such, the authorities will exclude the applicant on the grounds that the applicant did not let the authorities examine the family members as part of the sponsor’s own application for permanent residence. This is in accordance with the provisions specified in R117 (9) (d) and R117 (11).
The Procedures for the Assessment of Adequate Arrangements
Officers will need to determine whether an applicant satisfies the requirements prescribed in A39. For this, they will need to assess whether the applicant is able and willing to support himself or herself. If an applicant does not satisfy this requirement, the officers will need to determine if the sponsor has made adequate arrangements for supporting the applicant. In such cases, officers will need to consider the sponsor’s situation, ability, willingness to assist and the duration of the undertaking. This applies even in cases where the immigration officer did not form an opinion on the undertaking i.e. when the financial requirements did not apply.
Applicants might be able to meet the requirements specified in A39 if there are adequate arrangements for care and support. This could typically include assistance from people other than the sponsor i.e. other family members in Canada.
The Procedures for Situations Where Officers Are Unable to Establish that a Marriage, Common-Law Relationship or Conjugal Partner Relationship Exists
Officers will need to be familiar with the basic requirements for legal marriage in their territories of responsibility. As such, they will need to be familiar with:
- The minimum age for marriage
- The prohibited degrees of consanguinity
- The manner in which freedom to marry is established
- Residency requirements
- The prescribed form for marriage and,
- Any other requirements such as a license or parental consent
The Procedures for Illegal Marriages
Some marriages might not be legal where they take place. This might typically be so because of the following reasons:
- A defect in capacity i.e. who can marry whom
- The host country does not recognise marriages that take place in an embassy
- Religious prohibitions and,
- Certain types of ceremonies do not have the required permission
However, these marriages might obtain legal recognition in Canada. As such, officers will need to explain to applicants that the applicants do not qualify as spouses because their marriages do not have legal recognition in the place where they took place. However, officers will need to explain that these applicants might qualify as spouses if they married in another jurisdiction where their marriages would be legal.
In some cases, re-marriage in another jurisdiction might not be feasible. Therefore, if the relationship between the sponsor and the applicant is genuine and the relationship meets the requirements of either common-law partner or conjugal partner, officers will need to process the marriage as such. However, it is worth mentioning that sponsors and applicants will need to qualify as common-law partners and conjugal partners.
For qualifying as conjugal partners, the sponsors and the applicants will need to have maintained a conjugal relationship for at least one year. This would typically involve combining their affairs, having a sexual relationship and being mutually interdependent. Similarly, for qualifying as common-law partners, the sponsors and the applicants will need to have lived together for at least one year. In some cases, the officers might consider processing the applicants in another category. However, the officers will need to consult the applicant prior to doing this.
Situations could arise where applicants qualify as both common-law or conjugal partners. In this scenario, officers will need to explain to the applicants that the authorities will not recognise the applicants’ marriages as being legal in Canada. Therefore, the officers will need to explain to the applicants that if they want the authorities to recognise the applicants as legally married couples, the applicants will need to marry in Canada. Similarly, if the applicants and sponsors are conjugal partners, officers will need to explain that the sponsors and applicants will need to live together in a conjugal relationship for one year. Only then would either of them be able to exercise any rights or privileges associated with common-law status.
In addition, applicants will need to meet the prescribed definition of ‘common-law partner’ or ‘conjugal partner’ at the time of submission of the sponsorship and permanent residence applications. Thus, if the couple are common-law partners, they will need to have lived together continuously in a conjugal relationship for at least one year. Similarly, if the couple are conjugal partners, they will need to have been in a conjugal relationship for at least one year. Officers could come across situations where applicants apply as newly wed spouses. As such, these individuals might not have established a conjugal relationship prior to the marriage. In this scenario, officers will need to explain to these individuals that they would need to re-apply as common-law or conjugal partners once they meet the definition prescribed.
Officers will need to refuse the applicant in case:
- The applicant is unwilling to be considered as a common-law or conjugal partner in the eyes of the authorities or,
- The applicant is unable to provide satisfactory evidence of a conjugal relationship
The Procedures for Polygamous Marriages
Officers will need to counsel both parties that polygamy is an offence under the provisions specified in the Criminal Code of Canada.
According to the provisions specified in R117 (9) (c) (i), a spouse is not a member of the family class in case the sponsor or the spouse was already married to another person at the time of the subsequent marriage. This regulation prohibits a second or third wife from obtaining legal recognition as a spouse within the family class. In addition, it provides that only the first marriage has the potential for obtaining legal recognition for immigration purposes.
In order for the first marriage to obtain legal recognition and be legally valid under Canadian law, the couple will need to live together in a monogamous marriage in Canada. Common law permits applicants to convert a polygamous marriage into a monogamous one. For this, the couple will need to live together in a monogamous relationship from the time of their arrival in Canada. Such a conversion will typically come into effect courtesy a stated intention from the parties detailing their intention to so convert their marriage. In addition, they will need to provide some factual evidence that they have complied with this requirement. They will usually adhere to this requirement by divorcing the other spouses and / or by taking recourse through a re-marriage that has legal validity in Canada.
It is worth mentioning that officers will need to base the decision to refuse on the balance of all the evidence. As such, they would not refuse an application solely because the applicant did not obtain a divorce. The parties will also need to understand that refusal to provide such evidence might result in the refusal of their applications.
The parties will need to understand that they will not be able to convert a polygamous second or third marriage to one of monogamy. Therefore, in case a husband wishes to sponsor a wife other than his first as a spouse, he will need to divorce his other wives and remarry the chosen wife in a form of marriage that is legally valid in Canada. Thereafter, he and his chosen spouse will need to sign a declaration to this effect.
Situations could arise where a sponsor and an applicant have been practising polygamy. In such situations, there will usually be children existing from several spouses. In this scenario, officers will need to caution the sponsor and the spouse that the sponsor is sponsoring that other spouses will not be eligible for immigration to Canada. This is applicable even if the sponsor is sponsoring their respective children. Officers will need to explain that the separation of children from their mothers will be permanent in all likelihood. In addition, they will need to counsel the sponsor and the applicant to consider the consequences of that separation on the children.
It is possible that the sponsor and the applicant will nonetheless sponsor the children. It is also possible that one of these children subsequently end up sponsoring their respective mother. In this case, officers will need to caution the mother that she will not have a spousal status and related legal protection in Canada. In addition, she will not be eligible for support or other benefits that flow from marriage under Canadian law as well.
It is worth highlighting that the sponsor and the applicant cannot avoid the prohibition against polygamy specified in the Regulations. As such, the sponsor and the applicant cannot avoid the lack of legal recognition of all spouses save the first by processing a second spouse as a common-law partner. By law, it is not possible to establish a common-law relationship that meets the definition of such in terms of conjugality. This is especially so in situations where one or both parties are still living in a pre-existing conjugal relationship.
The notion of conjugality has within it the requirement of monogamy. As such, it is only possible to establish a new common-law relationship in law after a person is either divorced or separated from the spouse or common-law partner. In this case, the individual will need to have convincingly formed the intention not to continue with that previous relationship as well.
An already existing marriage, which is uninterrupted by divorce, separation or death, remains a barrier that the authorities will not be able to overcome when they assess a second spouse as a common-law partner. In some cases, though, it is possible that circumstances might remove such a barrier. This would typically be the case when the husband divorces the first wife subsequently or the first wife passes away. In such cases, a husband and second wife could either choose to remarry. Or, they could potentially meet the definition of common-law partner. This will necessitate the husband separating from a first wife and living with a second wife in a bona fide conjugal relationship for one year after the separation from the first wife. It is worth pointing out that a subsequent marriage (when the first marriage is continuing) is not valid in Canadian law. Therefore, the authorities would typically consider people in such a scenario to be single in law. As a result, such individuals would have to remarry in order for the authorities to consider them as being married under Canadian law. For more details, officers would need to go through the section titled ‘The Definitions’.
Note:
- It is worth highlighting that the Department cannot require divorces and remarriage
- However, officers have the ability to ask for evidence that the parties have converted their marriage to a monogamous one
- Officers will typically need to explain all the articles that would constitute such evidence to the parties
The Procedures for No Common-Law Relationship or Conjugal Partner Relationship
Situations could arise where a couple is unable to cohabit and / or unable to provide satisfactory evidence of a conjugal relationship. In such cases, the officers will need to refuse the application. For more details on this, officers will need to go through the following sections:
- The Guidelines for the Recognition of a Common-Law Relationship and,
- What is a Conjugal Partner
The Procedures for the Assessment of a Claim that a Dependent Child is a Student
Officers would need to check information on the application for discrepancies. As such, they might find that the answers to the following questions are highly relevant:
- What are the cultural norms in the applicant’s country?
- In a society where most children leave school at the age of 15 years, it might be unusual for a 22-year old to continue to attend school
- As such, have the younger siblings completed their education by the age of 15 years?
For more details, officers will need to go through the section titled ‘Who Qualifies as a Dependent Child?’
The Documentation Guidelines
Officers could come across situations where the applicants have fraudulently altered documentation from a legitimate institution. Or, they might come across situations where the applicants might have obtained documentation from a legitimate institution by fraudulent means. In such cases, officers will need to verify these documents with the issuing institution or with another reliable authority.
In some cases, officers might find that the issuing institution is clearly not an educational institution. In such cases, the authenticity of the documentation could well be immaterial. Therefore, the officers need not cite fraud as the reason for which an applicant is not a dependent son or daughter. Officers will need to rely on proof of the ineligibility of the institution as well. In case they come across proof of fraud, officers will need to cite this too.
Officers will also need to inform applicants about any doubts. This will enable them to give the applicants the opportunity of responding to the doubts or concerns raised. In some cases, it is possible that the documents might be false or that the schools the applicants are attending are not educational institutions. In such cases, officers will need to notify the applicants about why these schools are not educational institutions. Officers could do this either during an interview or in writing.
The Guidelines for Full-Time Students
During an interview, officers could question applicants about their educational institutions. In some cases, it is possible that dependent children might be enrolled and attending school as full-time students. In this scenario, these dependent children should be able to speak knowledgeably about:
- Their course of studies
- Their activities at school
- Their teachers
- Their classmates and,
- The physical description of the school
The questions given below might assist officers in determining whether a son or a daughter is a full-time student:
- Is the student enrolled in a program given at an educational institution such as a university, college or other educational institution?
- Is the student in attendance at the educational institution?
- Is the attendance at the educational institution full-time? Is the program of study the dominant activity in the life of the applicant?
- Is the program of studies followed at this educational institution academic, professional or vocational?
- Is the institution accredited by a relevant government authority?
Officers will need to feel satisfied that an applicant is in attendance at an educational institution with the intention of studying. In case the officers have doubts on this, they could consider looking at:
- The record of the student’s actual attendance at the educational institution
- The grades achieved by the student
- Whether the student can discuss, with some knowledge, the subjects studied and,
- Whether the student has made a genuine effort to assimilate the knowledge in the courses being studied
In some cases, it might be apparent that an applicant has enrolled at an educational institution for the sole objective of qualifying as a dependent child for immigration purposes and not with the intention of studying. In such cases, officers will not find the child eligible as a dependent child.
The Guidelines for Post Secondary Institutions
The authorities require an institution to have the necessary accreditations from a relevant authority. As such, officers will normally accept a state-recognised institution as an educational institution. Some countries might have licensed schools. For these schools, officers might require evidence of licensing or state recognition.
However, it is worth highlighting that not all countries have an authority responsible for licensing educational institutions. Therefore, not all educational institutions will have licenses in place. In this scenario, officers will need to accept unlicensed institutions as well. For this, these unlicensed institutions will need to offer career preparation via a formal curriculum, examinations and granting diplomas.
In many cases, these institutions will not have licenses because there is no licensing body. Alternatively, these institutions might not have licenses because they do not qualify for licenses. In either situation, the officers will need to request for proof that the institution has the characteristics of an educational institution.
Such proof could typically comprise documents pertaining to the student or the institution. It could include:
- Evidence of enrollment
- Proof of attendance
- Transcripts
- Class notes
- Marked essays
- Tuition receipts
- Evidence of a curriculum
- Evidence of a calendar and,
- Evidence of a yearbook
Situations could arise where officers find that the educational institution does not have any such authority. Similarly, in some cases, officers might feel that the accreditation of the educational institution is in question. In this scenario, the officers will need to refer to the following guidelines for assessing the educational institution.
The Factor | The Details |
The Primary Purpose of the Institution | The primary purpose of the institution must be to provide formal education.
The education provided could be academic. Many university programs do not have a specific career orientation. They usually provide the knowledge, the skills and the mental development to enable students to enter the work force or to enroll in programs of advanced studies. However, formal education could comprise career specific preparation as well. In many cases, professional university faculties, vocational or technical schools or colleges and specialised occupational schools provide this type of education. An education institution, by definition, implies the existence of a building or buildings devoted primarily to providing education, training or development. The existence of the premises will therefore, be a factor in assessing the requirement that a student needs to be in attendance. Therefore, officers will need to ask for evidence of curriculum, examination results, degrees or diplomas and official transcripts. The presence of these would enable the officers to determine if an institution’s primary activity is formal education, training or preparation for a career. |
The Curriculum | A formal curriculum will typically comprise several courses. Each of these would lead to an educational goal. A specific program will usually comprise a coherent curriculum of courses for which there might be prerequisites. This curriculum of courses would invariably lead to a required number of credits. |
The Examination Results | Each course will need to conclude with a measurement of progress or knowledge acquired by the student. Such an activity that measures the progress or knowledge of the students could typically include an examination, a graded essay, thesis or project. Each student will receive a final mark in each course. This will give the successful students the required amount of credits. |
The Diplomas | A specified number of credits and, in some cases, specific compulsory courses will lead to a diploma or a degree. It is worth pointing out that dependent children, who are still full-time students, will not be likely to have diplomas yet. Therefore, they will need to provide the appropriate documentation that indicates the degrees or diplomas that the institution typically grants in the place where they are studying |
The Transcripts | Genuine institutions provide official transcripts. A transcript of the previous year of studies could constitute evidence of full-time attendance. Alternatively, it could constitute evidence of the eligibility to re-enroll at an institution. |
The Guidelines for Institutions that Are Not ‘Educational Institutions’
Officers might find that some institutions are not educational institutions. Examples of institutions that are not educational institutions under the prescribed Regulations include:
- Centres providing on the job training e.g. a hairdresser’s salon or garage
- Institutions that offer only correspondence courses
- Institutions that only enroll students to enable them to qualify as dependent sons or daughters under Canadian Immigration Regulations or,
- Private training establishments that offer specialised courses, which do not lead to a diploma or a vocational certificate e.g. those establishments that offer courses such as computer orientation, internet training, amateur painting, sculpting, sewing etc.
The Guidelines for the Financial Support Pertaining to Students
Officers will need to feel satisfied that a child is receiving substantial support by a parent. In such cases, the onus usually lies on the applicant to provide all the evidence that is necessary for establishing this. Officers should not hesitate when it comes to examining the degree of financial support that a parent is providing to the child.
Along with the proof of support, officers will need to know the cost of studying at a particular institution. In addition, they will need to know whether the child is living at home or in residence. All applicants will need to provide this information to the officers.
In the view of the authorities, cancelled cheques in the parent’s name for all or most of the tuition or room and board, will normally constitute acceptable proof of financial support. In addition, officers could consider letters from the institutions as well. However, these letters will need to state that the parents have paid all or most of the tuition or other expenses.
It is worth highlighting that some individuals might have fraudulently obtained proof of support. Or, they might have submitted fraudulent proof of support. As such, officers will need to check whether the cancelled cheques predate the interest in immigration. In addition, they will need to ascertain whether the parents are capable of financially supporting a child at school.
Some institutions might not charge tuition at all. As such, a 22 year old student could attend a publicly funded school and live at home. In such cases, officers will need to rely on evidence that the school does not charge any fees. Situations could arise where the officers can clearly establish that the child is a full-time student living at home. In this scenario, the officers will need to assume that the parents provide room and board.
In some cases, the officers might find that the child has become a spouse or a common-law partner before attaining 22 years of age. Despite this, the child is still a full-time student. In these situations, the officers will need to check that the proof of financial support from the parents, dates from before the time of the marriage or the beginning of the common-law partnership.
For more details, officers will need to go through the section titled ‘The Guidelines for ‘Substantially’ Financially Supported Individuals’ that appears below.
The Guidelines for ‘Substantially’ Financially Supported Individuals
The authorities require parents to provide substantial financial support to the son or the daughter who is claiming to be a dependent child. Various dictionaries define the term ‘substantially’ to denote considerable in quantity, of real importance or value and of considerable amount.
The authorities require parents to have provided such financial support since before their children attained 22 years of age, or since their marriage or entering into a common-law relationship – in case either took place prior to the child turning 22 years of age.
Officers will need to remember that small scholarships or earnings from evening or summer jobs will not disqualify dependent children. However, these children will need to be substantially financially dependent on their parents.
Similarly, officers might come across students who pay a substantial part of their tuition, room and board from their own salaries or large student loans. Alternatively, officers might come across students who receive financial support from people other than their parents. It is worth mentioning that these individuals do not satisfy the prescribed definition.
Officers will need to remember that emotional support from parents is not a factor. Parents will still need to provide financial support at the time of issuance of the visa.
The Procedure for Ineligible Dependent Children
In some cases, the officers might form the opinion that claimed dependent children are not members of the family class as the provisions specified in R2 state expressly. The officers might arrive at this opinion after reviewing an application. In this scenario, the officers will need to:
- Give the applicants a deadline for providing additional information about the ineligible dependent children and,
- Issue visas to the rest of the family if, by the deadline, the officer still believes that the dependent children are ineligible
- In this scenario, the officers will need to send a letter to the applicant as well
- This letter will need to explain why the authorities are unable to issue visas to the ineligible family members
For more details on refusals, officers will need to go through the section titled ‘The Guidelines for Refusals’ that appears subsequently in this document.
The Procedure for Assessing Eligibility at Visa Issuance
The authorities expect applicants to notify the visa office. This is especially so in case there are any changes in their circumstances, which might be relevant to processing. In some cases, the processing times could well be very long i.e. lasting more than a year. In such cases, the officers might wish to confirm that the children are still eligible prior to issuing the visas.
The officers could issue visas to dependent children who qualified because they are under 22 years of age. However, they would only do this if the dependent children are still not married or are not common-law partners at the time of issuance of the visa. In addition, the dependent children will need to continue to meet these requirements when they arrive at the port of entry (POE).
In some cases, the officers might also request for evidence of full-time student status prior to issuing visas. Therefore, children who were full-time students might no longer qualify at the time of issuance of the visa. This is especially so because they might have graduated or left school or because a parent no longer supports them.
It is worth mentioning that the ineligibility of dependent children who no longer qualify does not preclude the issuance of visas to a principal applicant and other eligible dependent children. This is because the ineligible children are no longer family members. This is in accordance with the provisions specified in R70 (5).
The Procedure for Issuing Visas
Applicants for permanent resident visas will need to meet all the prescribed requirements. Only then would the officers be able to issue them visas. Officers will need to attach the relevant counselling information (as appropriate) as well.
For instance, officers will need to explain in writing that all the family members will need to travel along with the principal applicant. In addition, officers will need to explain in writing that all family members will need to ensure that they follow before the expiry date specified on their visas. It is worth mentioning that family members, who arrive in Canada prior to the arrival of the principal applicant, will not become permanent residents.
Officers will need to ensure that they have included the names of any non-accompanying family members on the visa applicant. In addition, they will need to state that these non-accompanying family members have also undergone the appropriate examinations, if applicable. For more details on this, officers will need to go through the sections titled:
- The Guidelines for Non-Accompanying Family Members i.e. Section 5.10 of OP 2 and,
- The Guidelines for Inadmissibility and Non-Accompanying Family Members i.e. Section 5.11 of OP 2
The Procedures for Quebec Cases
In some cases, the authorities might refuse an application for Quebec. Alternatively, the applicant might consider withdrawing the application for Quebec. In certain cases, it is possible that the applicant might inform the officers that the applicants do not plan to use their visas. In this scenario, officers will need to send a copy of the refusal letter or the file closure letter to Service aux garants et aux candidats à l’immigration in Montreal. It is worth pointing out that officers should not send these documents to a Service d’immigration du Québec (SIQ) office abroad.
In approved cases, officers will not need to send a copy of the permanent resident visas to Service aux garants et aux candidats à l’immigration in Montreal.
The Procedures for Appeal Allowed Cases
In many cases, officers will issue a visa on an appeal allowed case. In this scenario, they will need to enter the Case Type as ‘2’ on the Final Decision screen in the Computer Assisted Immigration Processing System (CAIPS). The authorities do not make any distinction for cases the Immigration Appeal Division (IAD) allows for reasons of law or Humanitarian and Compassionate (H&C) considerations. As such, officers will need to finalise these cases under the original FC Immigrant category.
Note:
- For more details on this, officers will need to go through Section 8.5 of OP 21
- For more details on reopening and processing these kinds of cases, officers will need to go through the Computer Assisted Immigration Processing System (CAIPS) System User Guide
The Procedures for Refusals
Officers will need to ensure that they specify all the reasons for refusals in the refusal letter. For more details on this, officers will need to go through:
- The Procedures for Ineligible Dependent Children i.e. Section 15 of OP 2
- The Procedure in Case the Applicant is Clearly Not a Member of the Family Class i.e. Section 18.1 of OP 2
- The Procedure for the Deletion of Sponsored Children i.e. Section 18.2 of OP 2
- The Procedure in Case the Sponsor Does Not Meet the Sponsorship Requirements i.e. Section 18.3 of OP 2 and,
- The Procedure for the Authorisation to Return to Canada i.e. Section 18.4 of OP 2
The Procedure in Case the Applicant is Clearly Not a Member of the Family Class
Visa officers could receive sponsorships for people who are clearly not members of the Family Class. In such cases, the Case Processing Centre in Mississauga (CPC-M) will typically send these undertakings to missions only if the sponsors insist. The Case Processing Centre in Mississauga (CPC-M) will need to indicate that the sponsorship is not on behalf of a person described in the definition of member of the family class. In addition, it will need to indicate the sponsor’s reasons for submitting an IMM 1344AE for an ineligible person.
In some cases, the officers might forward such a sponsorship to a visa office. When this happens, the visa office will need to:
- Assess the application, which it might refuse on the basis that the applicant is not a member of the family class and,
- Send a copy of the refusal letter to the Case Processing Centre in Mississauga (CPC-M) for information
Situations could arise where the sponsor files an appeal with the Immigration Appeal Division (IAD). In addition, it is possible that the Immigration Appeal Division (IAD) determines that the foreign national is not a member of the family class. In such cases, the Immigration Appeal Division (IAD) might not consider Humanitarian and Compassionate (H&C) considerations. This is in accordance with the provisions specified in A65.
The Procedure for the Deletion of Sponsored Children
Ineligible dependent children might claim to be dependent children of a member of the family class. But, they might not be able to satisfy an officer about the fact that they are dependent children. For instance, a child who is over 22 years of age at the time of application, might not be able to satisfy an officer that the individual is a full-time student.
In case officers find a dependent child to be ineligible, they will need to issue immigrant visas to the applicant and eligible family members. However, they will need to ensure that they do not issue visas to the ineligible person. In particular, officers should not refuse an entire application because the alleged dependent child of a member in the family class is not a dependent child.
It is worth mentioning that the sponsor has no right of appeal to the Immigration Appeal Division (IAD). This is especially so because there has been no family class refusal. As such, the applicant or the ineligible dependent child (and not the sponsor) have the ability to seek redress from the Federal Court. The only exception to this is an application where an ineligible individual is also the principal applicant.
In case, officers find that sponsored dependent children are ineligible, they will need to:
- Send a letter to the principal applicant explaining that they would not be issuing visas to the ineligible dependent children because these children are not dependent children based on the prescribed definition
- Send a copy of the letter to the sponsor explaining that the sponsor does not have the right of appeal because there has been no refusal
- Counsel the sponsor to ask the Case Processing Centre in Mississauga (CPC-M) to refund the Right of Permanent Residence Fee (RPRF) for the ineligible dependent children and,
- In some cases, the sponsor might file an appeal
- In this scenario, Appeals Officers will need to file a motion of non-jurisdiction with the Immigration Appeal Division (IAD)
- Thereafter, the officers will need to forward the file and the statutory declaration explaining why the officers did not issue visas to the ineligible dependent children at the request of the Appeals Officers
Situations could arise where officers delete a sponsored dependent child. This would usually take place because the individual provided fraudulent or false information. In case the officers find that the principal applicant was either involved in or aware of the misrepresentation, they have the authority to refuse the entire family. This is in accordance with the provisions specified in A40 (1) (a).
For more details, officers would need to go through the section titled ‘The Guidelines on Misrepresentation’ i.e. Section 5.22 of OP 2.
The Procedure in Case the Sponsor Does Not Meet the Sponsorship Requirements
In some cases, officers might find that the sponsor does not meet the prescribed requirements of sponsorship. In this scenario, they would need to refuse the application. This is in accordance with the provisions specified in R120 and A11 (2).
Similarly, situations could arise where not all family members, whether accompanying or non-accompanying, meet the income test (where required). In this scenario, officers will need to refuse the entire application. This is in accordance with the provisions specified in R133 (j) that require that the sponsor meet the income test.
The Procedure for the Authorisation to Return to Canada
For more details on this, officers will need to refer to Section 6 of OP 1.
The Procedure for Notifying Sponsors of Appeal Rights
It is worth highlighting that these procedures apply to all family class applications. Thus, they apply to family class applications sponsored by residents of Quebec as well. In addition, they apply to cases of refused sponsored applicants who receive temporary resident permits (TRPs) as well.
When officers refuse a case, the visa offices would need to:
- Send a letter to the sponsor’s address in Canada, notifying the sponsor of the right of appeal
- In case the sponsor is temporarily outside Canada, the visa office could send the letter to a non-Canadian address
- Include:
- A copy of the refusal letter that the officers sent to the family class applicant
- A Notice of Appeal IRB / CISR28 (6/98)
- Important Instructions for Sponsorship Appeals (see Appendix A) and,
- The information insert
- It is worth mentioning that the dates on the original refusal letters sent to the family class applicants and the copies sent to the sponsors must be identical
- Officers would need to sign both the original and the copy of the refusal letters
- Include the sponsor’s client ID or the applicant’s client ID and the applicant’s file number in the upper right hand corner of the notification of appeal rights letter
- The sponsor’s client ID is an eight digit number divided by a hyphen – officers will be able to spot it on the undertaking i.e. IMM 1344AE
- The applicant’s client ID refer to the last eight figures of the file number of the Case Processing Centre in Mississauga (CPC-M)
- The file number of the Case Processing Centre in Mississauga (CPC-M) typically begins with the point of service code i.e. 9570
- It is part of the information that the Case Processing Centre in Mississauga (CPC-M) typically sends to various visa offices
- Include the information insert with refusal letters for family class applicants
- When officers add this information, it highlights their effort to obtain new addresses for the sponsors
- However, the information insert does not serve to replace the notification of appeal rights letter to the sponsor
- The rules prescribed by the Immigration Appeal Division (IAD) do not permit officers to notify sponsors through applicants
The Procedures for Other Administrative Rules Related to the Notice of Appeal Rights
Officers could use regular mail for notifying sponsors of appeal rights. In some cases, regular mail services might well be unreliable. In this scenario, the authorities permit officers to use unclassified diplomatic bags.
Situations could arise where sponsors or applicants provide new addresses. In this scenario, the visa officers will need to re-send the notification of appeal letters to the new addresses. The authorities will not usually set a time limit on the response other than that imposed by the schedule for Disposition of Paper Documentation – refer to OP 1 for more details on this.
Officers will need to retain undeliverable returned envelopes and notification of appeal rights letters on applicants’ files. Officers will need to treat these as refusal letters based on the schedule for Disposition of Paper Documentation. It is worth mentioning that the authorities do not require visa offices to make any further attempts to locate the sponsors.
The Procedures for Submitted Appeals
Officers would need to go through OP 21 for more details on the manner in which they would need to deal with appeals.
Appendix A – Important Instructions for Sponsorship Appeals
The authorities provide sponsors with the right to appeal the refusal of the application for permanent resident visas made by people to whom the sponsors have provided sponsorship. This is in accordance with the provisions specified in Section 63 (1) of the Immigration and Refugee Protection Act (IRPA). This set of instructions also includes a Notice of Appeal for that purpose. Sponsors will need to complete this form in English or in French.
On completing the form, the sponsors will need to submit it to the Registry Office of the Immigration Appeal Division (IAD). It is worth highlighting that the Immigration Appeal Division (IAD) must receive this form no later than thirty (30) days after the sponsor has received the Citizenship and Immigration Canada (CIC) refusal letter that contains the written reasons for the refusal of the application for permanent resident visas. The sponsors will need to submit the Notice of Appeal along with a copy of the Citizenship and Immigration Canada (CIC) refusal letter.
The details given below list the addresses, telephone numbers and fax numbers of the Immigration Appeal Division (IAD) Registry Offices. Sponsors will need to submit their Notice of Appeal documents to the Immigration Appeal Division (IAD) Registry Office that serves the province or territory where they live. In some cases, sponsors could choose to send these documents by mail. However, they will need to ensure that the Immigration Appeal Division (IAD) Registry Office actually receives the document before the deadline lapses.
The authorities provide sponsors with the right to be represented by counsel, at their own expense. The authorities require counsels who charge a fee, to be members of good standing of either:
- A provincial law society
- The Chambre des notaires du Québec or,
- The Canadian Society of Immigration Consultants
Some sponsors might wish to retain counsel. These individuals will need to notify the Immigration Appeal Division (IAD) in writing and without delay of their counsel’s contact information. This information would typically comprise:
- The counsel’s name
- The counsel’s address
- The counsel’s telephone number
- The counsel’s fax number and,
- The counsel’s e-mail address
For counsels receiving a fee, the sponsor will also need to specify:
- The counsel’s membership identification number and,
- The name of the organisation to which the counsel belongs
Sponsors will need to notify the Immigration Appeal Division (IAD) in writing and without delay in case any of the contact information for the sponsor and / or the counsel changes.
For sponsors residing in Quebec, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland, Labrador and Ottawa:
Immigration Appeal Division (IAD) Registry Office – Montreal
Immigration and Refugee Board of Canada
Immigration Appeal Division
Guy-Favreau Complex
200 René Lévesque Blvd. West
Montréal, Quebec
H2Z 1X4
Telephone: 514-283-7733
Fax: 514-283-0164
For sponsors residing in Ontario (except Ottawa):
Immigration Appeal Division (IAD) Registry Office – Toronto
Immigration and Refugee Board of Canada
Immigration Appeal Division
74 Victoria Street
Toronto, Ontario
M5C 3C7
Telephone: 416-954-1000
Fax: 416-954-1165
For sponsors residing in British Columbia, Alberta, Manitoba, Saskatchewan, Yukon, Nunavut and Northwest Territories:
Immigration Appeal Division (IAD) Registry Office – Vancouver
Immigration and Refugee Board of Canada
Immigration Appeal Division
300 West Georgia Street, 16th Floor
Vancouver, British Columbia
V6B 6C9
Telephone: 604-666-5946
Fax: 604-666-3043
Source: Citizenship and Immigration Canada (CIC)