Spousal sponsorship for partners without legal status in Canada

Credit to Author: Steven Meurrens| Date: Wed, 10 Jul 2019 04:06:50 +0000

Is your spouse in Canada without legal status?

It is common knowledge that Canadian citizens or permanent residents can sponsor their spouses or common-law partners living abroad, or, in Canada as legal visitors, workers or students. What is less known is that they can also apply for spousal sponsorship for their partners living in Canada without legal status.

The policy

In 2005, Canada established a public policy which required Immigration, Refugees and Citizenship Canada (IRCC) to process permanent residence applications for the spouses and common-law partners of Canadian citizens and permanent residents who live in Canada without legal immigration status. The policy was put in place to facilitate family reunification and inland processing, and to prevent hardship due to family separation.

Lack of legal immigration status includes people who overstayed visas or permits, those who worked or studied without government authorization, entered the country without required visas and/or valid passports. The most typical situation involves people who travelled to Canada, became romantically involved with a Canadian, and then forgot that they needed to leave Canada by the end of their authorized stay period. It also frequently occurs from negligence where people submit incomplete forms or incorrect fee payments for extension of legal status.

The policy does not extend to those who were previously deported and returned to Canada without authorization, those who entered Canada with fraudulent or improperly obtained passports or visas and those who are facing deportation for reasons such as misrepresentation or criminality.

The process

People submitting sponsorship applications under the policy need to meet all immigration requirements, other than having legal status in Canada.  They need to show that their relationship is genuine and not for immigration purposes, and also that they are not inadmissible to Canada.

Applicants – both the sponsor and the on the one being sponsored – should understand that the general misrepresentation provisions of Canadian immigration legislation apply to their sponsorship applications. Those who commit material misrepresentations will be removed from Canada and banned from returning for five years.  It is important that applicants understand that they need not hide the fact that they are in Canada without status in their immigration applications, or omit unauthorized work.

Unlike other applicants under the Spouse or Common-Law Partner in Canada Class, those applying for permanent residency under the public policy are not eligible to receive two-year open work permits during the processing of the sponsorship application.

A note of caution: deferring removal

If an individual applies for permanent residency under the public policy, and they are subsequently discovered by the Canada Border Services Agency (CBSA) to be in Canada without status, the CBSA will grant a 60-day deferral of removal. While this may not seem like a long deferral, in practice IRCC prioritizes the processing of files once they are notified by CBSA that the administrative referral of removal has started.

The deferral of removal will not apply in certain cases. Most importantly, if someone has submitted their immigration application, and CBSA subsequently detains them for being in Canada without status, then the CBSA will defer their removal.  If the CBSA discovers someone to be in Canada without status, determines that they are removal ready, and also determines that they have not yet submitted a sponsorship application, then they will not receive a deferral of removal.

The deferral of removal will not apply to those who are:

  • Inadmissible for security, human or international rights violations, serious criminality, criminality and organized criminality;
  • Those who have criminal charges pending;
  • Those who have outstanding warrants for removal; and
  • Those who have previously hindered or delayed removal.

These instances are rare. It is far more likely that a family will be separated, and a person removed from Canada, because they did not submit their applications before they were discovered to be in Canada without status. Hopefully, the more publicized the policy is, the more people will apply before it is too late.