May 6, 2016

Lack of Canada Immigration Status and In Canada Spousal Sponsorship Applications

Canada’s public policy includes a commitment to family reunification and to facilitate processing in cases of genuine spouses and common-law partners already living together in Canada. This means that regardless of your immigration status in Canada, you may still be eligible to be sponsored under the Spouse or Common-law Partner in Canada Class.

Immigration, Refugee and Citizenship Canada (IRCC) Public Policy under 25(1) of the Immigration and Refugee Protection Act (“IRPA”) may be applied to exempt applicants in the Spouse or Common-Law Partner in Canada Class from the requirement to have temporary resident status and to not be inadmissible due to “lack of status”. Applicants without status in Canada may therefore still qualify as members of the spouse or common-law partner in Canada class under this policy.

Definition of “Lack of Status”

Applicants who lack status may be granted permanent residence so long as they are not inadmissible for reasons other than “lack of status”.  What does “lack of status” mean? For the purposes of current public policy, persons with “lack of status” refers to those in the following situations:

• persons who have overstayed a visa, visitor record, work permit or student permit;
• persons who have worked or studied without being authorized to do so under the IRPA;
• persons who have entered Canada without the required visa or other required documents;
• persons who have entered Canada without a valid passport or travel document (provided valid documents are acquired by the time IRCC seeks to grant permanent residence).

Continuing with Your Application for Permanent Residence

As noted above, the application of public policy is rooted in IRPA’s objective of family reunification and preventing the hardship resulting from family separation. Therefore, even if you do not have immigration status in Canada, you may be allowed to continue with your application for permanent residence with no action taken against you.

However, this is not a guarantee and the decision on your application belongs to the immigration officer and his/her discretion.  If you choose to submit an application, this may prompt IRCC to notify Canada Border Services Agency (CBSA) of your current residential address and initiate removal proceedings.

Fortunately, if you do lack status in Canada, you do have options available to you and you may still be eligible to be sponsored. Bellissimo Law Group can help you determine the best course of action for your individual situation and needs.

If you are currently out of status in Canada or subject to a removal order, it is best to speak to an experienced immigration representative about your options prior to submitting an application. Contact us today.

For more information on Permanent Migration, please click here.

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