NEWSLETTER

Spouse or Common-law partner in Canada - Where to start

Navigating the immigration process for your spouse or common-law partner who is in Canada but not a Canadian citizen or permanent residence can be complicated. Two years ago, an amended Spouse or Common Law Partner in Canada Class immigration policy was introduced by Citizenship and Immigration Canada (CIC). The policy allows eligible spouses and common-law partners of permanent residents, even those who are out of status, to apply for permanent residence from within Canada rather than the normal “overseas sponsorship” process. It may seem that the only route to take for a spouse or common-law partner in Canada is an “In Canada” sponsorship. However, there are many factors to consider and weigh before sending the sponsorship application.

Although most out of status spouses and common-law partners may remain in Canada while their application is being processed, it is important to consult with an immigration lawyer to determine that you are eligible to make the application under the “In Canada” class policy and if you do qualify to make the application, whether an administrative, or statutory, deferral of removal will be granted in your case should the need arise. While the “In Canada” sponsorship may be a viable route for some spouse and common-law partner sponsorship, it is important to keep in mind that applicants who are currently in Canada may still submit applications under the usual “overseas sponsorship” processing. All overseas spousal and common-law sponsorship applications are submitted to the Case Processing Centre (CPC) in Mississauga, where the sponsor’s eligibility as a sponsor is assessed and usually takes anywhere from 30-60 days. The overseas Canadian visa office that is responsible for applications in the spouse or common law partners’ country of citizenship or legal permanent residence then finalizes the applicant spouse’s application.

There are some important differences between the “In Canada” applications and the “overseas sponsorship” spouse or common-law sponsorship applications. In most cases the “In Canada” sponsorship application takes longer to process than a sponsorship processed at an overseas visa office. For example, a straightforward spousal sponsorship processed through the Canadian High Commission in New Delhi, India can take as little as two or three months to finalize without an interview, whereas the same application processed in Canada presently takes about 9-10 months for the first stage of approval. Additionally, during those 9-10 months of “processing”, there is usually no confirmation or file number to indicate that Citizenship and Immigration have received the file and started processing. This first stage of approval for an “In Canada” sponsorship does allow the sponsored spouse to apply for a work permit while awaiting the finalization of the permanent residence. However, not all cases receive this “first stage of approval”at first instance. Often, where there are concerns regarding the genuineness of the relationship, applications may be transferred to a local CIC office where an interview will likely be convoked. Given the great backlogs at local CIC offices, particularly those in the Greater Toronto Area, this adds even further delays to the overall processing time .

More notably, if the sponsorship application is refused under the “In Canada” policy, there is no right of appeal by the sponsor to the Immigration Appeal Division for sponsorships made “In Canada” although the decision might be challenged in the Federal Court. Refused in-Canada applications would have to pay application fees again and will have to submit a new sponsorship application for permanent residence to the CPC in Mississauga to be processed at a visa office overseas. In the case where a sponsorship is refused on an “overseas sponsorship” application, sponsors may appeal the decision to the Immigration Appeal Division. If the appeal is successful, the visa post is ordered to continue processing of the file, which usually means that medical and security checks must be redone.

It is important to consider all your options before making the sponsorship application. Making an “In Canada” sponsorship may not necessarily be the best route to take depending on your personal circumstances and status in Canada.

Canadian citizens or Permanent Residents who are at least 18 years old can sponsor close relatives to immigrate to Canada. If you are sponsoring your spouse, common law partner, conjugal partner, or dependent children, you will not need meet minimum income requirements. The sponsored spouse or common-law partner must be able to demonstrate that they are in a genuine relationship with a Canadian citizen or permanent resident sponsor , and have not entered into the relationship primarily for the purposes of immigration. Besides a marriage certificate, or evidence of cohabitation for at least 1 year, you may be required to provide other evidence such as pictures, letters, telephone bills, emails, and other things to prove your relationship is bona fide.


 

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