June 22, 2022
My Spousal Sponsorship Application Has Been Refused – 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 options available 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, one area of the law to review is 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 a common reason – IRCC is simply not convinced that the relationship is genuine and was entered into only for immigration purposes.
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 can still be refused if at the time the couple married, the primary reasons for doing so was to get the sponsored spouse, or applicant, status in Canada.
So, if you do end up with a refusal on this basis, what can be done? If it was an overseas application, then the sponsor may 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. Through the appeal process, IRCC provides the Appeal Record, which should contain a complete copy of the file including all of the forms and supporting evidence filed before the application was refused, the refusal decision itself as well as the Officer’s notes containing the reasons the application was refused. The sponsor, who is the appellant during the appeal process, 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, it can take anywhere from a few months to over a year for a hearing to be scheduled for the appeal. Though with the shift to online hearings, the process can sometimes move quicker as hearings can, in certain circumstances, be scheduled sooner or early resolution can be explored earlier. 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, or depending on the reason for refusal and where certain inadmissibilities may be involved, then there is no access to the IAD. In this case, you may 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 in IAD appeals).
Although the refusal of a spousal sponsorship is undoubtedly a major upset, it is important to remember that there may be ways to challenge a negative decision. A representative who regularly handles appeals and court challenges can help you understand why your application was refused and determine the best way forward for you and your family. If your application has been refused and you have questions about the options available to you, feel free to schedule a consultation with our office.