Wednesday, 27 February 2008

Spousal Sponsorship Issues

Filipiniana News – February 2008
RHYME & REASON

Last month, I wrote on family sponsorship in general.  In this column, I would like to deal more specifically with sponsorship of spouses/partners in particular, due to the increasing number of inquiries received on this topic.

Despite the notoriously slow processing times for immigration applications, it is refreshing news when one hears of spousal sponsorship applications being approved in just a few months, as I did recently for one of my clients.   It somehow reaffirms one’s faith in a system where frustrating delays are the norm rather than the exception. 

However, the downside of this is that some unscrupulous individuals try to take advantage of the quick processing times by entering into marriages of convenience (i.e. those entered into solely for immigration purposes) as a faster way of obtaining permanent resident status.  Aside from being illegal, this could seriously lead to more problems and complications in the long run.  This also leads to greater suspicion and stricter screening of spousal applications that even genuine relationships sadly end up being categorized as having been entered into only for immigration purposes. 

Different types of relationship

There are three different types of partnerships that could qualify under the spousal sponsorship class:  spouses, common law partners and conjugal partners.

Spouses are couples who are validly married in the jurisdiction where the wedding was celebrated.   To prove the genuineness of the marriage, the sponsor and applicant must provide documentary evidence such as wedding photos, invitations, reference letters, love letters to each other, etc..   The Canadian or permanent resident can sponsor the spouse even a day after getting married so long as the genuineness of the marriage is adequately proved.

Common law partners refer to couples living together in a committed relationship without getting married.  They can be considered common law partners from day one.  For purposes of immigration sponsorship however, common law partners must have lived together for at least a year to qualify.   This must be proven by a declaration of common law union, joint documents (bank accounts, apartment lease, insurance beneficiary designation, income tax returns, etc.). The burden of proving common law status for at least a year is on the applicants so the more evidentiary documents are submitted, the better.  

Conjugal partners refer to couples in a committed relationship, at the same level of commitment as spouses and common law partners, but who are prevented from marrying or living together by some compelling circumstances - e.g. laws prohibiting same sex union in ultra-conservative countries, war, detention, etc..  This is much more difficult to prove and is thus rarely approved as basis for an immigration sponsorship.

Any of the above relationships can be a heterosexual or a homosexual partnership.

Overseas versus Inland Applications 

There are two avenues for this type of family sponsorship.  The first is the overseas sponsorship whereby after the approval of the sponsor’s eligibility at the case processing centre in Mississauga, the permanent resident application of the partner is processed at the appropriate overseas visa office.  If the person being sponsored needs to be interviewed, he or she will have to attend at the visa office in person.   One advantage of this type of application is that there is a right of appeal with the Immigration Appeal Division (IAD) of the Immigration Refugee Board in case the sponsorship application is eventually refused.   Aside from being able to submit new evidence on appeal, the IAD also has jurisdiction to consider evidence of any relevant humanitarian and compassionate factors. 

The other avenue is via the Spouse or Common Law Partner in Canada class.   As the name implies, this sponsorship is allowed only for spouses and common law partners (and not for conjugal partners).   This type of application assumes that the spouses or common law partners are already living together in Canada and that it will create undue hardship if the application is processed overseas.  Out of status spouses may also be sponsored under this category.  Please note however, that in case the application is refused, it is a final decision and there is no right of appeal.   The only remedy after a refusal is the filing of an Application for Leave and Judicial Review with the Federal Court.  A positive decision in the Federal Court application can only, at best, result in a quashing of the decision but that the matter will be sent back to CIC for a redetermination by another visa officer.  There have been instances where the redetermination still led to a negative decision. 

Divorce and Bigamy 

One issue that often arises among Filipinos who are planning to sponsor or are being sponsored by their Canadian or permanent resident spouses/partners, is that of divorce.

It is often unclear or even hard to believe for others that Philippine laws do not allow divorce.   Philippine family law only recognizes legal separation (which does not allow one to remarry)  and annulment (marriage is declared void or void ab initio).  The only instance when a foreign divorce could be recognized is if one of the spouses acquires foreign citizenship in the country where the divorce judgment is obtained.   If the foreign citizen obtains a divorce and remarries, then the Filipino spouse is allowed to remarry as well.

Therefore, even if one becomes a permanent resident of Canada but remains a Filipino citizen, a divorce judgment obtained in Canada may still give rise to possible issues of bigamy and misrepresentation.  That is, if the permanent resident remarries after obtaining the divorce judgment and then eventually sponsors the second spouse, a visa officer may invoke criminal inadmissibility for the bigamous marriage and/or raise misrepresentation issues arising from the bigamous relationship.

Hope the above information will be of some help to those who may be planning to sponsor their spouses or partners to reside permanently in Canada.

The author would be interested to receive any feedback and may be reached at mdsantos@osgoode.yorku.ca