February 21, 2018
My spousal sponsorship has been refused – what went wrong, and now what?
Learning that your spousal, common-law, or conjugal partner sponsorship application has been refused is one of the most devastating outcomes in immigration law. Making matters worse, people are often surprised by this result and by how demanding the legal test really is. The good news is that there are legal means to challenge these kinds of refusals.
The first question we often hear when approached by a client who has had their sponsorship application refused is “why?” To understand what may have gone wrong, we have to look at section 4(1) of the Immigration and Refugee Protection Regulations (Regulations):
4(1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership…
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act;
(b) is not genuine.
Although there are a variety of reasons that sponsorships can be refused by Immigration, Refugees and Citizenship Canada (IRCC), this is the most common reason – IRCC is simply not convinced that your relationship is genuine and was entered into for honest reasons.
It is important to keep in mind that section 4(1) of the Regulations is two-pronged, meaning that IRCC has to be convinced that the relationship is both genuine and was not entered into primarily for immigration benefit. This means that even if IRCC believes that a marriage has become truly genuine over time, the application will still be refused if at the time the couple married, the primary reasons for doing so was to get the sponsored spouse status in Canada.
So, if you do end up with a refusal, what can be done? If it was an overseas application, then the sponsor can appeal the refusal to the Immigration Appeal Division (IAD). The first step is to file a Notice of Appeal within 30 days of receiving the refusal. This begins the appeal process, which eventually leads to a hearing before the IAD. This appeal is a de novo process, meaning that the Board Member of the IAD who decides the appeal can consider new evidence and testimony. The sponsor who is the appellant and the applicant seeking to come to Canada both have the opportunity to answer questions about their relationship, attempting to convince the IAD Member that the relationship is genuine and was entered into for legitimate reasons. Additional documentary evidence is also filed in advance of the hearing to further substantiate the relationship.
Currently, appeals in Toronto are currently taking around 1.5 to 2 years to be scheduled, so this can be a lengthy and involved process. Luckily, experienced counsel can help you determine if there might be options for early resolution in your case.
If your application was filed in-Canada, then there is no access to the IAD. In this case, you would challenge the refusal to the Federal Court of Canada, which has a more limited jurisdiction and cannot consider new evidence (such as additional proof of the relationship or testimony of the partners).
Although the refusal of a spousal sponsorship is undoubtedly a major upset, it is important to remember that there are ways to challenge this. A lawyer who regularly handle appeals and court challenges can help you understand why your application was refused and determine the best way forward for you and your family.