By Sukhram Ramkissoon
In my many years of practice in Canada, I have encountered a number of persons who are frustrated and upset as their Family Class Applications made on behalf of their spouses have been returned for a variety of reasons.
During the past few years, application form versions have changed dramatically and have become very probing; and all information required must be answered truthfully. If a question is not answered or information is omitted, an application may be returned, thus causing much delay in the processing. It is very important to read and answer all the questions carefully.
There are two types of spousal sponsorship applications (1) Spouse and/or Common-Law Partner In Canada Sponsorship, and a Family Class sponsorship, if the spouse resides outside of Canada.
If the spouse is a visitor, student, or worker and the marriage took place in Canada whilst the person held valid status, he/she may apply to extend their status to remain in Canada during the processing of the application. The person being sponsored may be eligible for an Open Work permit, if they meet the requirements, such as residing with their sponsor, subject to a sponsorship applicant, amongst other factors.
First, the sponsor, must be a Canadian citizen or Permanent Resident and meet the necessary eligibility criteria for sponsorship and if they do, they may file the sponsorship application. For example, the sponsor must be over 18 years, must not be in prison, have not filed for bankruptcy, under a removal order or charged with a certain serious criminal offence, amongst other requirements. Further, the sponsor, cannot have been sponsored to Canada as a spouse within the five years preceding the new spousal sponsorship.
If the person being sponsored has any children under 22 years old, they all must be medically and criminally examined by the relevant immigration authority. All the applicant’s children regardless of age must be included in their Family Information; however, only those dependent upon them will be noted in their application for permanent residence. These children can either accompany the applicant to Canada or be unaccompanied which means the applicant will have to sponsor their dependent children, after receiving their permanent status.
The person being sponsored must also be over 18 years of age, and the relationship must be genuine and not entered for the primary purpose of obtaining permanent residence in Canada. Documentation must be included to establish a genuine relationship and that sponsor and applicant are residing together as a couple, if in Canada, or hold a continuous and ongoing relationship if the applicant resides outside of Canada.
If the officer is satisfied that the relationship is genuine, they will issue a permanent resident visa, if the applicant requires a visa and resides outside Canada. In other cases, only a Confirmation of Permanent Residence is issued to the applicant.
If after obtaining the visa and Canada Border Services becomes aware that the relationship was fake and/or that the parties are not cohabiting together or that the person being sponsored gave false information on their application, CBSA may take enforcement action such as the issuance of a removal order.
For all Common Law Sponsorship applications, it must be established that both the sponsor and applicant have been living together for at least one year in a common relationship and currently residing together at the time of their application and before permanent residence is granted. They also must establish that their relationship is genuine and supported by documentary evidence establishing their relationship. The person being sponsored will also be able to include all children accompanying and non accompanying under 22 years old.
Likewise, in all overseas applications, the same criteria have to be met. The sponsorship application will be processed through the visa office in the sponsored spouse’s country or the nearest visa office which may be responsible for the processing of all applications for that particular region. If the overseas spousal application is refused on grounds that the marriage is not genuine the sponsor may appeal to the Immigration Appeal Division. For applications made from within Canada, the sponsor and applicant will have to make an application or leave and judicial review to the Federal Court of Canada.
If there is a finding of misrepresentation by the visa or immigration officer, the applicant will be barred from making any type of application to enter Canada for five years from the date of the decision. Immigration, Refugees and Citizenship Canada (IRCC) takes a very serious view of misrepresentation and in very rare circumstances they grant humanitarian and compassioned considerations.
Being found inadmissible to Canada due to misrepresentation is becoming more and more prevalent. Misrepresentation takes place when any information is provided to IRCC or to the Canada Border Services Agency (CBSA) that is inconsistent or false. Some examples are:
Fail to declare that you have been refused a visa for another country or deportation order. This includes any other names used or residence in another country.
- Provide a document that is found to be non-genuine
- Fail to mention a family member
- Declare employment experience which you do not have
- Obtain permanent residence by having engaged in a non-genuine marriage
Misrepresented information can be provided (or omitted) by yourself, a family member, or your representative. In all cases, it is the principal applicant who is at fault – even if the principal applicant did not know the misrepresentation occurred. If found that you have misrepresented in your application, this finding will have a significant impact on your immigration status to Canada.
If found to have misrepresented, you (the principal applicant) and all dependent family members will all be found inadmissible to Canada which will prevent anyone from obtaining another temporary or permanent resident visa. In addition, the person(s) that is found to have misrepresented will receive a 5-year ban from Canada.
I can’t stress enough that all applicants must be aware of their responsibility to be truthful and forthright when dealing with IRCC, CBSA and any government authority.
SUKHRAM RAMKISSOON is a member of CICC and specialises in Immigration Matters at No. 3089 Bathurst Street, Suite 219A, Toronto, Ontario. Phone 416 789 5756.