December 10, 2015

Spousal & Common-law Sponsorships – in Canada or from overseas?

A person married to or in a common-law relationship with a Canadian citizen or permanent resident may be sponsored to Canada. If the foreign national is residing in Canada, the application may be made to a Canadian processing centre – for processing in Canada – or may be made as an overseas application – for processing in the Canadian Visa Office of the foreign national’s home country. There are pros and cons to each approach, which at times leaves the couple wondering what is best for their circumstances. Here are some considerations:

Out of Status – if you are in Canada without status, there is a risk that by filing a sponsorship application you will come to the attention of immigration officials and may face removal from Canada. This tends to occur, in particular, with foreign nationals who have already received a removal order (i.e., as by having made a refugee claim in Canada). If you are removed from Canada before the application is processed to approval in principal – presently about 17 months – the application will be refused as you are no longer eligible, being outside of Canada.

Conjugal Partners – if you are not legally married or in a common-law relationship (cohabited in a romantic relationship for at least one-year), you cannot be sponsored with an In-Canada application for permanent residence.

Appeal Rights – if the application for permanent residence is refused, only overseas applicants are able to appeal that decision to the Immigration Appeal Division (IAD). The IAD is able to consider the evidence and replace the decision of the Visa Office. So if the application was refused because the Visa Office did not believe the relationship was genuine, the IAD could replace that decision, determine that the relationship was genuine, and the Visa Office is bound by that decision. If the sponsorship was made for in-Canada processing, there is no appeal right; however, the refused foreign national may challenge the decision to the Federal Court of Canada (FCC). The FCC is not an appeal, so if for example you are successful at the FCC, the application is returned to the Canadian processing centre for a reconsideration of the genuineness of the relationship.

Work Permit – there is presently a one-year pilot project (ending in December 2015, but may be continued) which permits foreign nationals in Canada, being sponsored in an In-Canada application for permanent residence, to obtain an open work permit soon after processing has commenced. If the foreign national’s application is being processed overseas, there is no automatic access to a work permit.

Interviews – if an interview is required, it will take place in the location where the application is being processed. So, if your application is being processed overseas and you are requested to attend an interview, you would need to travel overseas to the Visa Office to attend that interview. Once you depart Canada, your return would depend on whether you have a visa to re-enter Canada and/or on the decision of immigration officers at the port of entry.

Timing – as indicated, an In-Canada application will be processed to approval in principle in approximately 17 months. It will take an additional 10 months for medical, security and other verifications, for a total of 27 months of processing. Overseas applications are generally processed more quickly: after approximately 2 months of processing in Canada, the application is transferred to an overseas Visa Office. Overseas processing can be as quick as 5 months (Sao Paulo) or as slow as 47 months (Islamabad), so 7 to 49 months total processing time.

Ongoing Travel – an In-Canada application requires that you cohabit with the sponsor, so if there will be lengthy periods of departure from Canada then you may not be eligible for an In-Canada sponsorship. Furthermore, once the application has been submitted it is more likely that your intentions will be questioned upon entrance to Canada: i.e., are you entering Canada as a visitor or do you have a permanent intention? If an immigration officer at the port of entry to Canada believes that your intentions are permanent and also that you are likely not to comply with the terms of your entrance to Canada, you may be refused admission. As indicated above, if you cease to be in Canada and stop cohabiting with your spouse, then your In-Canada application for permanent residence will be refused.

For more information on Spousal Sponsorship, please click here.