Being separated from your spouse or common-law partner because of immigration rules is a trying and difficult situation. The process to obtain approval for your loved one through Canadian sponsorship can be a complicated and lengthy application process, as there are a myriad of different scenarios that each require a different solution to ensure that your sponsorship application proceeds as quickly as possible, and gets approved.
Read on for a discussion of the questions that arise most often with our clients who are wanting make a sponsorship application to bring their spouse or partner to Canada permanently.
I also want my spouse to live with me in Canada while we await the sponsorship process, but she keeps getting refused a visa to travel to Canada. Why?
When a foreign national is applying for a temporary resident status in Canada, the visa officer is compelled to assess whether they have the intention to live in Canada on a temporary or a permanent basis. When a foreign national has a partner who is a citizen or Canadian permanent resident, that demonstrates a strong tie to Canada and raises the question of whether the foreign national may have an intent to stay permanently in Canada without having been approved for a permanent resident visa yet (and passed the criminal and medical checks that are part of the permanent application). Their partner’s immigration status as a citizen or Canadian permanent resident thus becomes a drawback, as officers tend to err on the side of caution and give applicants the message that you must wait for your Canadian spousal sponsorship to be approved first.
Because of this, any application for a visitor visa must demonstrate strong reasons why the foreign national is planning to travel to Canada for a time-limited basis only, and submit documents that support why the foreign national will be returning to their country of residence to await the PR process. For example, job responsibilities or prior short visits to Canada may help (the partner’s passport proof can show that). Without strong evidence, the officer will be likely to refuse a temporary application when a Canadian partner is part of the equation.
Do we qualify as common-law?
To be considered common-law partners under Canadian immigration law you must have co-habited in an exclusive, conjugal relationship with your partner for a minimum of 12 consecutive months. You also must have combined your affairs in much the same way as a married couple would, examples being to provide financial support to the other, have a joint bank account or joint assets, perhaps a child together, presenting yourself publicly as a couple, etc. All the documents proving the common-law relationship will differ in each case.
How to prove common-law status (common-law marriage)
There are many ways of proving a common-law relationship, including lease agreements in both names, the purchase of property in both names, identity documents that show the same address, utility bills at the same address, and photos that demonstrate your public relationship as a couple. Generally speaking, if a couple has lived together for at least a year, there are ways we can prove that for a sponsorship application.
Sometimes we have to think outside of the box to put together the evidence package of supporting documents to show that the sponsored person is indeed a common-law spouse according to the definition, as the couple may be lacking standard proof. We sometimes recommend letters from family members, but proof from independent third parties is preferable. The Document Checklist provides samples of supporting documents, but keep in mind that is the minimum.
Another suggestion to add to your application when explaining your relationship is as follows. If you plan to continue your comm0n-law relationship, and have made the mutual decision not to marry, it can help to explain the reasons for that to the officer, why you have made that choice. A well-thought out statement of your feelings and views on this will provide further evidence to the officer of your intention to remain together for life. This way, the officer has no reason to think that the lack of a marriage certificate affects your lifelong comittment to each other.
What is the definition of a Conjugal Partner?
The Conjugal Partner category is used exclusively for relationships that are legitimate but, for reasons outside of the control of the applicants, the parties cannot legally marry or cohabit. It is impossible for the sponsor and the sponsored person to either marry or live together. They cannot use the spousal sponsorship program at all (either the inland process or the overseas process) as as they have neither a marriage certificate nor proof of a common-law relationship, and can never obtain that.
The most common example of a situation in which a conjugal application may be feasible is that of a same-sex couple where at least one of the partners lives in a country in which same-sex relationships are illegal, and they cannot obtain a visa to come to Canada either. Thus, the couple cannot legally marry and have no option to reside together in order to meet the common-law definition.
The Canadian government has the special category of Conjugal Partner, but it is a relatively rare and difficult category to prove.
My partner is married in his home country and divorce is illegal there. What options do we have?
This is a common situation. It may be possible for your partner to pursue a divorce in the jurisdiction of his current residence. If you are able to live together, then it would also be possible to apply for Canadian sponsorship as common-law partners once you have reached the 12 months time frame, even if your partner is not divorced.
You can only be in one mutually-exclusive conjugal relationship at a time. So the Canadian government, in order to recognize the common-law partner, will expect to see proof of separation from the legal spouse so that there is clearly only one conjugal relationship at the time of the Canada sponsorship application.
I can’t link my application to my online account. It tells me the application can’t be found. What am I doing wrong?
Linking online applications can be a trying experience. The factor that we have found most often to be causing issues in linking to a spousal sponsorship application is the question where it asks you how many applicants are included in the application. This total should include both the sponsor and principal applicant as well as any dependent children listed on the Generic Application Form (IMM0008).
If that doesn’t work, our best advice is to give up trying to link it and just use the Case Specific Enquiry webform for your particular visa office to submit any updates that are requested by IRCC, or if you otherwise wish to bring to their attention any changes in your circumstances during the application process.
At the time we applied for sponsorship, we were planning to move back to Canada as soon as my spouse was approved for PR. Now that our application is in process, I have a better job offer overseas and we plan to remain overseas once the Permanent Residence is granted. Does this affect our application?
Yes, this does affect your application. When you completed your application to sponsor, you indicated that you are a Canadian citizen residing overseas but you intended to return to live in Canada once the Permanent Residence application has been finalized for your spouse or partner.
The requirement for a sponsor to intend to resume residence in Canada once the foreign national becomes a permanent resident is contained within the Regulations and is a material factor that makes Canadian citizens eligible to sponsor in the first place under Canadian immigration law. (Canadian permanent residents cannot sponsor from abroad). If your intentions change prior to your spouse becoming a Permanent Resident, then you need to notify IRCC and request to withdraw your application. The officer has that discretion to permit withdwaral, otherwise they can also refuse it as you no longer meet the “intent to return” requirement.
The remedy for a Canadian citizen in this situation would be to apply again for sponsorship once you are ready to return to Canada. All earlier applications are maintained in the global case management system (GCMS). That is why the failure to notify IRCC of your change in circumstances could result in a finding of misrepresentation with the accompanying 5-year ban at a future date. But as long as you notify them when your plans have genuinely changed, there should be no problem with the second family class sponsorship application at a later time.
I have separated from my Canadian spouse or partner. What happens to my status?
If your marriage or common-law relationship has broken down before your permanent resident status has been finalized, then it is imperative that you notify IRCC. As the Principal Applicant, you should expect that your application for Permanent Residence will be refused, and now is the time to sort out what other options you have to remain in Canada if that is your desire.
One note of caution: in the world of romantic relationships, break ups and reconciliations can be a normal part of some long-term relationships. If your relationship has followed this sort of a pattern in the past, it might be a good idea to wait 2-4 weeks post break-up before notifying IRCC. If you are called for a landing appointment during this time period and you have not reconciled with your spouse or partner, just ask for a new appointment at a later date so that you have time to finalize your relationship status. Do not land as a permanent resident if your relationship has broken down.
I’ve separated from my foreign national spouse or partner. How can I get them kicked out of Canada?
If your spouse or partner has not yet been landed as a Permanent Resident, and your separation is permanent, you should contact Immigration, Refugees and Citizenship Canada (IRCC) and ask to withdraw your spousal sponsorship.
Once a foreign national becomes a Permanent Resident, sponsors do not have the ability to decide if they can remain in Canada or not. Your ex-spouse or partner is entitled to live in Canada as long as they meet all conditions imposed upon them as Permanent Residents of Canada. However, if you feel that you were duped into the relationship strictly so that the foreign national could obtain status in Canada, you can report your situation to Canada Border Services Agency by calling 1.888.502.9060 and they may choose to investigate.
I have been asked by a family to marry their daughter so that she can remain in Canada. I am willing to do this, even though we don’t have any relationship. How should we proceed?
Good question! You should not proceed. It is illegal to participate in such a scheme and you could end up facing criminal charges. Think about your name in the news, lawyer bills and a criminal record that may prevent you from travelling outside of Canada. That’s a high price to pay for doing someone else a favour.
Never hesitate to contact a Canadian immigration lawyer or licensed immigration consultant for advice before launching a spousal sponsorship application, especially if there are unique elements.
The Way Immigration can assist with your common-law or spousal sponsorship application for obtaining permanent residence. We regularly help couples with the application process, forms and compiling all the documents to ensure it goes smoothly. We would be pleased to assist you with understanding your best options to have your loved ones join you in Canada as quickly and as easily as possible.