Canadian Spouse or Partner Common Law Immigration Sponsorship Lawyer
Bringing your foreign spouse or partner to live in Canada
Canadian citizens or permanent residents may sponsor their foreign spouses or partners to immigrate to Canada as permanent residents. This is a two-step application in which the Canadian first applies to the government to be approved as a sponsor, then once that application is approved, the foreign spouse or partner applies for permanent residence on this basis. Spouse or partner sponsorship applications entail the completion of numerous forms and the provision of detailed documentation, which will be assessed by the immigration authorities to ensure that the requirements of the category have been met. Communication with the immigration authorities will generally be restricted to written correspondence, but in some cases an interview between the sponsored applicant and an immigration officer will be convoked prior to any decision being made.
1. Three Types of Spouse and Partner Sponsorships
There are three categories of spouse or partner sponsorship: spousal sponsorship, common-law partner sponsorship, and conjugal partner sponsorship. It is important to understand the legal description of each category to ensure that you qualify before you submit any application to the immigration authorities. The basic requirements are as follows:
A spousal relationship is a marital relationship. The marriage can be performed in any country and will be recognized as valid by the Canadian immigration authorities as long as it was conducted in accordance with the laws of that country and is otherwise consistent with Canadian law. The immigration authorities will require a valid marriage certificate as proof of the spousal relationship. This is the simplest and most straight-forward type of relationship for sponsorship purposes since the marriage certificate is generally sufficient to demonstrate the legality of the spousal relationship.
Common-law Partner Sponsorship
Two people who have been living together continuously for at least one year in a marriage-like relationship are considered to be common-law partners. For immigration purposes this has the same legal effect as being married and is a basis for a sponsorship. The immigration authorities will expect to see evidence that the couple has been living together for at least one year, such as lease or rental agreements in both names. This makes this type of application slightly more complicated that a spousal sponsorship application since it adds the requirement to provide evidence of the common-law relationship.
Conjugal Partner Sponsorships
Conjugal partners are two people who are in a marriage-like relationship but due to extenuating circumstances have not been able to marry or to live together continuously for a year so as to qualify as common-law. This could be as a result of visa barriers or other barriers to cohabitation. This of course requires that the couple be able to prove that their relationship is marriage-like in nature and to explain why they have not been able to live together or marry. The immigration authorities treat this type of application as an exception category for people who face severe barriers to marriage or cohabitation, and will not approve the application if the couple could actually live together or marry, even though this may not be convenient for them. In particular, the conjugal partner category is not intended as a type of fiancé visa for people who are planning to marry later on, and an application under the conjugal partner category should not be attempted in this scenario.
2. Requirements to Sponsor
To qualify to sponsor their spouse or partner, a Canadian citizen or permanent resident must meet the following criteria:
- be at least 18 years of age
- reside in Canada
- not have been themselves sponsored as a spouse within the last 5 years
- be willing to sign a 3-year undertaking to be financially responsible for the spouse or partner once they arrive in Canada
- not be subject to a removal order
- not be detained in any prison
- not have been convicted of any crime of a sexual nature
- not have been convicted of a crime involving the use of violence punishable by more than 10 years imprisonment
- not have been convicted of a crime involving bodily harm to a relative or partner
- not be in default of any previous sponsorship undertaking
- not be in default of any support payments ordered by a court
- not be an undischarged bankrupt
- not be in receipt of social assistance other than for a disability
Exception to the Requirement to Reside in Canada
The requirement for the sponsor to reside in Canada only fully applies to permanent residents. Canadian citizens may reside abroad while sponsoring a spouse or partner provided that they can demonstrate their intention to return to Canada once permanent residence is granted to their spouse or partner.
Exception to the Criminal Convictions provisions
The criminal conviction restrictions to sponsoring do not apply if the Canadian sponsor has been pardoned or acquitted, or at least five years have elapsed since the completion of the sentence imposed for the criminal offence.
Sponsored Spouses Cannot Sponsor for Five Years
A previously sponsored spouse may not sponsor a new spouse for five years from the date they obtained permanent residence. This applies to all sponsorship applications that were received on or after March 2, 2012.
Minimum Income Requirement
There is no minimum income requirement to sponsor a spouse or partner. However, the immigration authorities will assess whether they believe that the sponsor and/or spouse or partner have sufficient income and/or assets to support the spouse or partner once he or she arrives in Canada. In this regard, the inability of an immigrant to financially support him or herself once they arrive in Canada is a ground for refusal. It is therefore necessary for the sponsor and/or his spouse or partner to be able to show employment or assets sufficient to support themselves.
3. Requirements to Qualify as a Spouse or Partner
Spouses and Partners Must Show a Genuine Relationship
One of the concerns of the immigration authorities when assessing sponsorship applications involving spouses or partners is whether the spouse or partner is in a genuine relationship with their Canadian partner or whether they are simply trying to obtain immigration status in Canada. If the immigration authorities believe the relationship not to be genuine, then they will refuse the sponsorship application. In making their assessment of whether the relationship is genuine the immigration authorities will consider various factors such as the duration and quality of the relationship leading up to the marriage or partnership, whether the marriage was conducted in conformity with local norms, and the overall compatibility of the spouses or partners.
Foreign Spouse or Partner Must Not be Criminally Inadmissible
Any criminal conviction that is or could be the equivalent of an indictable offence in Canada will in many cases permanently render a foreign national criminally inadmissible to Canada, meaning that they cannot be sponsored or otherwise enter Canada. This will apply to just about any criminal offence, including relatively minor offences such as impaired driving and shoplifting. A foreign spouse with a criminal record can overcome this inadmissibility by obtaining a pardon or the foreign equivalent of a pardon suspending their criminal record. Another way to overcome the inadmissibility is to make an immigration application for rehabilitation if five years have passed since the day that the criminal sentence was completed. If more than ten years have passed since a single, minor conviction, then the foreign national may be deemed rehabilitated.
4. Where to File the Sponsorship
Spouse or common-law partner sponsorship applications can be made either outside of Canada to a visa office abroad, or inside Canada to a local immigration office. By its nature the conjugal partner category excludes in-Canada applications and should be made through the outside Canada application process. Further details are as follows:
Outside Canada Sponsorship Applications
The regular process of sponsoring a foreign spouse or partner is through an outside of Canada application, whereby the foreign spouse or partner remains residing in their home country or otherwise outside of Canada while the application processes, and the Canadian sponsor remains residing in Canada. Once the application is completed, the foreign spouse or partner will be given a permanent resident visa, using which they can travel to Canada and will become permanent residents on arrival. During this process the foreign spouse may travel to Canada to visit or otherwise on a temporary basis, provided that they are from a visa-exempt country or are able to obtain the requisite visa. It should be noted that the Canadian immigration authorities generally do not approve visitor visa applications by foreign spouses or partners of Canadian citizens or permanent residents, as they don’t consider such individuals to be genuine visitors, since their usual intention is to remain in Canada permanently. The immigration authorities will also require the Canadian sponsor to remain residing in Canada during the process, which is to say they should remain living in Canada for the most part and should not travel for extended periods. The exception to the requirement for the Canadian sponsor to reside in Canada is that Canadian citizens may reside abroad during the course of a sponsorship as long as they can prove that it is their intention to return to Canada once the sponsorship application is approved. This exception does not apply to permanent residents who must as a rule reside in Canada if they wish to sponsor a foreign spouse or partner.
In-land Spousal or Common-law Sponsorship
In a typical spousal or common-law sponsorship application the sponsor will remain in Canada while the person they are sponsoring will wait in their home country until their application is approved and their visa issued before they come to Canada. An exception to this rule is the in-land sponsorship category. Under this category a Canadian permanent resident or citizen may sponsor their spouse or common-law partner while they are both living together in Canada. Of course, the foreign spouse or partner will first have to enter Canada before this type of application can be made, either on the basis that they are from a visa-exempt country, or by first obtaining some kind of temporary visa. If the foreign spouse or partner is not in Canada and it is necessary for them to obtain a visitor visa to enter Canada, this may be difficult or impossible to obtain because the immigration authorities are generally resistant to granting temporary admission to the spouses or partners of Canadians, since they do not consider them to be genuine visitors, but rather see them as foreigners who are likely to want to remain in Canada permanently. If a visitor visa application is attempted but is not successful, it may be preferable simply to apply for sponsorship under the outside-Canada process, since any further visitor visa applications are likely to be refused also.
In addition to meeting the criteria of spouse or partner sponsorship categories, those applying through the in-Canada process must also cohabit during the processing of the sponsorship application. This means that the sponsor and spouse or partner must physically live together in the same premises, and the failure to do so could lead to the refusal of the application.
Foreign spouses or partners in Canada who have legal temporary status at the time of the filing of their sponsorship application may apply immediately for a work permit to enable them to work in Canada while the sponsorship application processes. The in-Canada process is considered a type of exception category akin to a humanitarian application, and a foreign spouse or partner who is out of status in Canada or under a removal order may still be sponsored in this manner, although they may not be able to immediately obtain a work permit.
5. Other Important Considerations Related to Spouse or Partner Sponsorships
The dependent children of the spouse or partner must be added to the sponsorship application and, if accompanying, will obtain permanent residence at the same time as their parent. Any child under the age of 19 and unmarried is considered to be a dependent. Non-accompanying children must also be added to the application and examined, including attending medical examinations, in case the spouse or partner wants to sponsor them later after obtaining permanent residence. It should be noted that if one of the parents of the dependent child is a Canadian citizen, or if the child was born in Canada, in most cases the child will automatically be considered a Canadian citizen and need not be sponsored.
The time it will take the immigration authorities to process a spouse or partner sponsorship application varies according to the immigration or visa office where the application is processing, and fluctuates depending on the office’s work load. The quality of the application will also impact on processing times since every time the immigration authorities require additional information this will result in delays. However, as a general rule, an outside of Canada application will process in approximately one year, and an inside-Canada application will take about two years to be completed.
In the event of a refusal of a spousal or partner sponsorship application, an appeal may be made. For outside-Canada cases the appeal will proceed before the Immigration Appeal Division, and for inside-Canada cases the appeal will go to the Federal Court. There are strict deadlines for these appeals so action must be taken immediately in the event of a rejection. For more information, see our Appeals page.
Two Year Conditional Permanent Residence for Sponsored Spouses or Partners
A sponsored spouse or partner is required to live in a genuine relationship with their sponsor for at least two years or risk losing their permanent residence. Those whom the immigration authorities suspect as having failed to comply with the two-year requirement to live with their sponsor may be subject to an admissibility hearing to determine if they should lose their permanent residence.
It should be noted that the two-year requirement to live together with the sponsor does not apply where the couple has children together at the time of the sponsorship application, or to spouses who have been subject to abuse or neglect by their sponsor, nor does the rule apply where the sponsor dies before the two-year period has elapsed. This measure only applies to spouses or partners whose applications for permanent residence were received by the immigration authorities on or after October 25, 2012.
Permanent Resident Status and Transitioning to Citizenship
A spouse or partner who obtains Canadian permanent residence will be issued a five-year permanent resident card that is renewable as long as the legal requirements of being a permanent resident are met. Permanent residents may live in Canada indefinitely, may work or study in Canada, have access to social services, and otherwise are much like Canadian citizens except that they are not citizens and keep their original citizenship and passports. To obtain Canadian citizenship a permanent resident much meet certain requirements including living physically in Canada for at least four years in a six-year period. For more information, see our Citizenship page.
Obtaining Legal Assistance
Sponsoring a spouse or partner is a complex and time-consuming process and legal representation is definitely recommended. The Law Office of Matthew Jeffery has years of experience successfully representing sponsorship applicants and can assist you with your case. If you are interested in having our firm conduct a FREE ASSESSMENT to determine whether you and your relative are qualified for Family Sponsorship, please click here. If you would like to email us to ask a question about sponsorship applications please click here.
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