Due to Canada’s strong commitment to continuously remain moored to the core values of family reunification, policies have been implemented which allow Canadian citizens, permanent residents and Registered Indians to sponsor family members to become permanent residents. For spouses and common-law partners, Canada provides two categories under which a sponsorship application can be made, depending on whether the sponsored person is inside or outside Canada: The Family Class and the Spouse or Common-law Partner In Canada Class; all other family members must be sponsored under the former.
While sponsoring a spouse or a common-law partner at the end of the day brings about the same result, the requirement and rules surrounding each remain distinct and as such, persons should be privy to these seemingly minor, but stark differences, prior to choosing the class under which they want to apply. The below information will shed some guidance on choosing the most suitable class.
Spouse or Common-Law Partner In Canada Class (SCLPC)
The SCLPC, as the name suggests, is restricted to spousal and common-law sponsorship. The spouse or common-law partner who is the subject of the sponsorship must be residing with the sponsor in Canada while maintaining valid temporary resident status.[1] As a result of a public policy, the requirement to have temporary resident status has been waived; those who are out-of-status may also apply under this class. Where temporary resident status has been maintained, the spouse or common-law partner may apply for an open work permit, while those out-of-status must wait until they meet the eligibility requirements and receive an approval in principle.[2]
One of the most common questions with respect to an application submitted under this class is whether the person being sponsored can leave and re-enter Canada without affecting processing. Because there is no guarantee that the person will be permitted to re-enter Canada, they may not be in a position to meet the condition under the class requiring them to be cohabiting with their spouse or common-law partner in Canada if they are outside of the country when the application is finalized. A break in this residence may put the application at risk.[3]
Usually, sponsors have the right to appeal a refused sponsorship application to the Immigration and Refugee Board (IRB). This affords them the ability to provide new evidence to assist their case, and to have the decision substituted for a new one. Said right is lost when an application is submitted under this class. In such case, the applicant may consider contesting the matter by way of Judicial Review depending on the context of their particular circumstances.
The Family Class
The Family Class is commonly referred to as overseas sponsorship and may be used to sponsor a spouse, common-law partner, or conjugal partner. The sponsor has a right to appeal the decision to the IRB, except in certain circumstances, if the application is refused. This right to appeal includes pleading one’s case before a Member of the Immigration Appeal Division (IAD), who has the authority to substitute their finding with that which was rendered by Immigration Refugees and Citizenship Canada (IRCC).
Unlike the SCLPC, applicants are not eligible for an open work permit; if they wish to acquire same, they are required to do so through the regular route. They are also permitted to visit Canada as long as the entry requirements are met.
If you need assistance with sponsoring a loved one, we would be delighted to help. You may send us an email at info@johnsonlawils.com or contact us using our contact form.
Terms to know:
Common-law partner: An individual who is cohabiting with another in a conjugal relationship, having so cohabited for a period of at least one year.[4]
Spouse: A person to whom one is legally married; Canadian does not recognize polygamy.
Conjugal partner: A foreign national residing outside Canada who is in a conjugal relationship with the sponsor, and has been in that relationship for a period of at least one year.
Conjugal relationship: A relationship of some permanence when individuals are interdependent (financially, socially, emotionally and physically), share household and related responsibilities, and have made a serious commitment to one another.[5]
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