On February 18, 2005 Citizenship and Immigration Minister Joe Volpe announced a new public policy under which legal immigration status is no longer a requirement for spouses and common-law partners of Canadian citizens and permanent residents in Canada who wish to apply for permanent residence status in the Spouse or Common Law Partner in Canada Class.

Under the previous policy, the Spouse or Common-Law Partner in Canada Class was only available to spouses and common-law partners of Canadian citizens or permanent residents who had valid temporary immigration status in Canada. Those without status only had the option of applying for permanent residence under the humanitarian and compassionate Class.

Now, the out of status spouse or common-law partner may submit an application under theSpouse or Common Law Partner in Canada Class. To qualify, the out of status spouse or common law partner must be in a genuine relationship with a Canadian citizen or permanent resident sponsor. As well, the Canadian sponsor must be eligible to sponsor the applicant and, as always, the applicant must successfully complete criminal, security and health checks.

An application under the Spouse or Common Law Partner in Canada Class can also include certain family members who are living inside Canada or abroad.

This policy change will be applied retroactively to include applications that are in process at the time of the announcement. Accordingly, applications by spouses or common-law partners who applied for humanitarian and compassionate consideration because they did not have valid temporary immigration status when their application was submitted will be automatically assessed under the new policy on condition that an “Application to Sponsor and Undertaking” (IMM 1344A) was submitted with their application.

Spouses or common-law partners who do not have valid temporary immigration status and who have already submitted an application requesting humanitarian consideration without submitting an “Application to Sponsor and Undertaking” (IMM 1344A) will be contacted by CIC with a request to furnish this undertaking. If the applicant does not do so, the applicant will not qualify to be processed under the new policy and will be required to qualify under the general humanitarian and compassionate provisions, a more discretionary option.

Spouses and common-law partners without legal immigration status in Canada applying under the new policy will not be granted permission to work or study while their application is being processed and will they not be permitted to apply for work or study permits until they receive initial approval (approval in principle). In order to be approved in principle, the officer examining the application must determine that the sponsor meets the eligibility requirements, that there is a genuine relationship between the couple and that the couple lives together.

Most out of status spouses and common-law partners can remain in Canada while their application is being processed. However, applicants who are under an enforceable removal order and who are not permitted to defer their removal (administrative deferral of removal) will be required to leave Canada. A deferral will not be granted to applicants who:

• Are inadmissible for security, human or international rights violations, serious criminality, or organized criminality;
• Are excluded by the Refugee Protection Division under Article F of the Geneva Convention;
• Have charges pending or in those cases where charges have been laid but dropped by the Crown;
• Have already benefited from an administrative deferral of removal emanating from an humanitarian and compassionate application supported by a spousal application;
• Have a warrant outstanding for removal;
• Have previously hindered or delayed removal; and
• Have been previously deported from Canada and have not obtained permission to return

Citizenship and Immigration Canada officials acknowledge that they have no authority to reconsider applications by out of status spouses and common-law partners that have already been refused. Refused applicants are advised to reapply under the new policy.