Filipiniana News – February 2016
RHYME & REASON
Primer on Spousal Sponsorship
Applications
Despite having undergone frequent changes and
tightening rules, spousal sponsorship applications are still among the most
popular yet often misunderstood type of immigration applications in
Canada. It may thus be helpful to
review some basic guidelines involving this type of applications to increase
chances of success or avoid needless refusals.
Eligible Relationships
There are three different types of partnerships
that could qualify under the spousal sponsorship class. namely: spouses, common-law partners and conjugal
partners.
Spouses are couples who are validly married
in the jurisdiction where the marriage was celebrated. Thus, the sponsor and applicant must provide
copies of a valid marriage certificate and proof of separation from previous
spouses, if any. Other relevant
documents such as wedding photos, invitations, reference letters and joint
documents, would also be helpful.
Although a Canadian citizen or permanent resident can legally sponsor
the spouse even a day after getting married, they would still need to convince
an officer that the marriage is genuine and continuing.
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 one year.
This must be proven by a declaration of common law union along with other
documentary evidence such as joint 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 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.
Factors Considered
The main issue in a spousal sponsorship
application is the genuine and continuing nature of a marital, common law or
conjugal relationship. The previous
immigration regulations provided that a person will not be considered a spouse
if the marriage, common law or conjugal partnership is not genuine AND was
entered into primarily to acquire an immigration benefit. A regulatory change which took effect in September
2010 provides that a person will not be considered a spouse if the relationship
was entered into primarily to acquire an immigration benefit OR is not
genuine. While seemingly innocuous, the
simple change of the conjunctive word “and” to “or” could actually have a
significant impact on spousal sponsorship applications. That is, applicants now have an even greater
burden of proving both the genuineness and the lack of a primary intent to
obtain an immigration privilege.
Previously, if a marriage or relationship is found to be genuine, the
conclusion necessarily follows that it was not entered into primarily for an
immigration purpose. Now, a sponsorship
applicant in a genuine relationship may still be refused if the reviewing
officer concludes that the primary purpose of the marriage or partnership was to obtain an immigration
benefit.
Overseas versus Inland Applications
There are two avenues for spousal
sponsorship applications. The first is
the overseas sponsorship whereby after the approval of the sponsor’s
eligibility at the case processing centre in Mississauga, the permanent
residence application is forwarded to 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 if the sponsorship application
is refused. Aside from allowing submission
of 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, 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, 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 may be instances
where the redetermination could still lead to a negative decision.
Five-Year Sponsorship Bar and Two-Year
Conditional Status
Some regulatory changes have been
introduced by the previous government that were meant to deter sponsorship
fraud. These include the prohibition
for a sponsored spouse to sponsor another person within five years from
becoming a permanent resident.
The second is the grant of permanent
residency to sponsored spouses on the
condition that he or she will live with the sponsor for two years from becoming
a permanent resident. This condition
only applies if the spouses have no common child and the relationship is less
than two years old when the sponsorship application was submitted. Exceptions may be granted for those who are
forced to leave the sponsor due to spousal abuse or neglect. However, the present government promised to
remove this conditional permanent residency for sponsored spouses. We will see if this, along with other
campaign promises, will be fulfilled.
The above is for information purposes only
and not meant to provide specific legal advice.
If you are planning to submit this type of application and have
particular concerns, it will be advisable to consult a trusted legal
professional.
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