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;
or
(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.

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Some of the changes included:

1. Doubling the number of applications allowed for parents and grandparents to 10,000 each year.
2. Restoring the maximum age for dependents to 22 from 19, to allow more Canadians to bring their children to Canada.
3. Restored spouses immigrating to Canada receiving immediate permanent residency and repealing the then two-year waiting period.
4. Work permit pilot project for eligible in Canada spousal applicants.
5. One-year processing times for spousal and common law sponsorship applications.
6. Effective June 6th 2017 15 points additional points were awarded for candidates with Canadian citizen or permanent resident siblings in Canada under the Express Entry system.
7. Additional funding for family class processing.
8. Removal of distinctions between in-Canada and Family Class sponsorship application forms.

Given the above there is little question that family reunification has been prioritized but as we enter an election year some of the familiar refrains will likely reappear including:

1. Reducing the numbers of admissions in the family class was seen as a way to alleviate some pressure on our already burdened system and prioritize economic classes.
2. Parents and grandparents immigrating to Canada are predominately elderly and will not assume employment in Canada and present with excessive medical costs.
3. Canada long did away with the inclusion of siblings with a few exceptions in the family class for example, because selection was based primarily on relation rather than on potential economic benefit. More emphasis on economic categories has benefited Canada and this could not have been accomplished through family class migration.

What did not change though, is that there remains no direct sponsorship of brothers and sisters. Those who advocate in favour of an expanded rather than limited family class especially as it relates to parents and grandparents argue the financial, social and emotional support that family members provide is vital to the sponsor’s ability to integrate successfully into Canadian society. Elderly relatives or children who need to be cared for would benefit by this care coming from a relative as opposed to a social or private service, and this would result in less of a burden on our stretched social resources and services.

In my view and I have advocated for this change for a number of years, is that we must continue to closely and carefully study the social as well as economic fusion and functionality across all categories. In that the family class need not only be thought of as a non-economic category and economic migration as a category that does not impact our nation building.

Family reunification has always been one of Canada’s objectives for immigration, especially since family reunification is seen as a “factor in promoting newcomer integration” and long-term settlement. In an immigration-friendly country like Canada we are increasing the number of immigrants entering into the country yearly so does it make sense to restrict the sponsorship of siblings, which, after all, are considered members of an immediate, and not extended, family?

Prior to the early 90’s, siblings were able to be directly sponsored under the family class. The Immigration Act of 1985 and the 1978 Regulations allowed for a much broader definition of admissible family members under the family class, which included siblings and most other relatives. This changed even though the family reunification objective under the law did not. The ultimate goal of such initiatives is to test and deliver an immigration program that has been carefully defined and debated. So, the Liberals have gone a long way in restoring family reunification and restoring siblings to a more prominent role in the immigration landscape should be next. Happy 2019 everyone!

(Sources)

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Key Citizenship Act Changes

The reduction of the physical residency requirement from four out of six years reduced to three out of five years in October 2017 enabled newcomers to have earlier access to the wide range of benefits Canadian citizenship bestows on new citizens. At the same time though the changes likely created a new backlog in itself, making a number of applicants immediately eligible for citizenship, thereby taxing the system. The changes also allowed permanent residents who spent time in Canada as a foreign worker, international student, or protected person before transitioning to permanent residence to count each day spent in Canada on temporary status as half a day of residency, up to a maximum of 365 days. The government also removed the requirement that applicants had to be physically present in Canada for 183 days or more in four out of the six years preceding their application. Original citizenship fees were $100, then increased to $300 in 2015 and now the total fee for an adult to be granted citizenship is $630, which consists of $530 for the processing fee and $100 for the right of citizenship fee.

What do the numbers Say – How Many People Are Applying for Canadian Citizenship?

– The changes resulted in application surges – it was reported by CBC News that applications jumped from a weekly average of 3,653 to 17,500.

– More than 105,000 new Canadians were administered the oath at an estimated 1,400 citizenship ceremonies in 2017, according to IRCC.

– In May 2018, Canada’s federal government increased the number of citizenship judges it employs from five to fourteen, just months after it relaxed the requirements for obtaining Canadian citizenship. Prior to this, Canada only had 5 citizenship judges.

– Official processing times are listed at twelve months which would be a significant reduction from the three to four years we were seeing before but we have not received final decisions on applications filed after the law changed in the fall last year so cannot confirm yet if that twelve months will be a reality.

Impact of International Students?

It has been reported after the introduction to the Bill C-6 amendments more than half of new applicants for Canadian citizens were former international students. Immigrants contribute greatly to Canada, strengthening and enriching our country first economically with international student tuitions and then in filling employment shortages (i.e.: transport and construction industries) that strengthen the country’s future. They also offer unique perspectives that add to Canada’s diverse culture. Beyond this it is important to clarify that students often transition to employment and then permanent residents of Canada. The permanent residents are applying for citizenship and not students directly. Many other applicants flow from obtaining their status through family class categories as well as economic streams.

What About Family Class Processing – How Long is it Taking?

According to IRCC, in February 2018, the average wait time was amended to one year in about 80 per cent of cases, down from the previous two-year wait. This is a wonderful development, but with any change comes complications, i.e.: it is possible that the remaining 20% could be waiting well beyond the previous 2-year period? It is important to note that the referenced 80% appear to be those with straightforward cases with no admissibility issues or complications, i.e.: criminal, eligibility for sponsors, etc. In general, overseas and in-Canada spousal sponsorships are processed within 12 months as undertaken. Parents/Grandparents are generally still requiring two years. We don’t see many refusals of super visas.

The processing of children is also requiring twelve months I would hope this could be improved as children are most prone to suffer from separation. Our clients have also commented that from their own experiences, being issued an open work permit has been life changing, allowing them the opportunity to work and contribute to their family income, thereby also eliminating potential marriage breakdowns when one spouse is shouldering a financial burden. IRCC informs that the work permit pilot, for now, will remain in effect until 31 January 2019.

So overall processing times seem to be improving which is wonderful for future Canadians and their families. It will be interesting to revisit the processing times once we reach the one-year mark on many of these citizenship applications.

To learn more about how to obtain Canadian citizenship, please click here.

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A. Very complicated question. There is more to this question than meets the eye and more information is required because the timing of these events and the types and lengths of these respective relationships are not clear and could be very important – beyond the issue of his ability to sponsor his girlfriend.  So, a number of questions would be asked by immigration counsel providing guidance on this matter.

First, was his wife in a relationship with another man in Canada while she sponsored him and at the time he landed in Canada?

Second, was he in a relationship perhaps even a common-law relationship (cohabitated together for more than one year for immigration purposes) with his current girlfriend in the Philippines before and/or during the sponsorship process as well as at the time of landing?

If they both were engaging in relationships, perhaps even living in common-law relationships, with other people at the time of sponsorship/landing, she in Canada and he in the Philippines, this could raise potential problems as to the genuineness of their relationship, ability to sponsor, and your friend qualifying as a spouse which includes the existence of a committed and exclusive spousal relationship by both individuals throughout the time of sponsorship and landing at a minimum.  This would lead to other questions.

Was the marriage only for immigration purposes? Had their marital relationship failed before or during the sponsorship process?  A finding in this regard could translate into deportation proceedings for your friend and the sponsorship of his current girlfriend would not be the primary concern.

On the other hand, if they both engaged in brief affairs this may not necessarily be definitive unless the timing and length were critical to the sponsorship and landing.  Any affair during the course of a spousal relationship would be relevant to assessing the genuineness of that relationship.

As it relates to your friend’s current circumstances assuming his sponsorship and landing from a few years ago do not raise issues and he has cohabitated with his current girlfriend for more than one year amongst other eligibility factors, generally a person who is separated from a spouse and living or has lived with somebody else in a common-law relationship may still sponsor the person as his common-law partner even if not divorced.  However, if your friend lived with her before becoming a permanent resident of Canada for over a year and did not declare her on his permanent residency application as a past common law partner before landing – this too could raise legal challenges as to potential misrepresentation and sponsorship issues.    In short, eligibility, timing and length of his relationship amongst other factors will be critical determining factors in a very complex factual and legal assessment.  He should seek out legal counsel immediately. Good luck!

For more information on Spousal Sponsorship, please click here.

To book a consultation to discuss your immigration matter, contact us today.

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The intention of the measure was to deter marriage fraud, based on non-genuine relationships; however, serious concerns were raised that this condition may disproportionally affect vulnerable spouses, particularly those in abusive relationships. After review and consultation, the Government confirmed that any benefit of the conditional permanent residence measure could not outweigh the risks to vulnerable spouses and partners.

With the removal of this condition, which came into effect on 18 April 2017, sponsored spouses are no longer required to live with their sponsors in order to maintain their permanent residence status. This upholds Canada’s commitment to gender equality and combating gender-based violence, while ensuring family reunification remains a cornerstone of Canada’s immigration objectives.

If I was sponsored by my spouse and subject to this condition, what does this mean for me?

You are no longer subject to this condition. Conditional permanent residence no longer applies to anyone, even if you were under investigation for not complying with this requirement. This includes if you have received a section A44 report for failure to comply with the requirement to live with your sponsor or been scheduled for an admissibility hearing at the Immigration Division (ID). If you have been issued a removal order based on non-compliance with the condition to live with your sponsor for a period of two years, and you have filed an appeal to the IAD, the repeal of this condition also applies to you.

Sponsored spouses or partners who are under investigation for marriage fraud, including non-genuine relationships, are not impacted by the repeal of the conditional permanent residence measure. These investigations will continue. Relationships of convenience – those entered into primarily to obtain permanent residence or non-genuine relationships – are taken seriously by the Government of Canada and alternative measures continue to be in place to deter entry to Canada on this basis.  If you have received an inadmissibility report under section 44(1) of the Immigration and Refugee Protection Act (IRPA), you can obtain more information here.

For more information on Sponsorship, please click here.

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From the start of 2016 to the fall, processing times were reduced by 15 percent for in-Canada applications and just over 10 percent for applications outside Canada.

Starting today, processing times will be reduced even further with most spousal applications now being processed in 12 months. Cases that are more complex may require more time.

Applicants who already filed an application will not have to wait an additional 12 months to have them finalized. Most families who have been waiting should have a decision on their sponsorship application no later than the end of December 2017.

The Government of Canada’s new changes are expected to benefit more than 64,000 applicants by the end of 2017, and are expected to bring families together.

For more information, please click here.

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