The Inside Canada vs. Outside Canada Sponsorship Process

One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process.  The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process.  This is not true.  However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below.

 

Inside-Canada Process

Outside-Canada Process

The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must reside together in Canada. The spouse/common-law partner do not have to reside together in Canada.  As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership.
The applicant must live with the spouse/common-law partner inside Canada during the duration of processing. The applicant can live with the spouse/common-law partner inside Canada during the duration of processing, but does not have to.
The immigration paperwork is sent to a processing center inside Canada, and remains in Canada. The immigration paperwork is sent to a processing center inside Canada, and it then may be transferred to a visa post outside of Canada.
If the applicant has valid temporary resident status in Canada, and submits an application to extend that status inside Canada with the permanent residence application, then the applicant will have implied status during the processing of the permanent residence application, provided he/she does not leave Canada. If the applicant has valid temporary resident status in Canada, he/she must maintain his/her status. The process is separate from the permanent residence application, and there is no implied status for the duration of processing.
Immigration, Refugees and Citizenship Canada will process the application even if the applicant does not have valid temporary resident status in Canada.  If an individual has an application in processing, and is detained by the Canada Border Services Agency for being without status, then the applicant will generally benefit from a 60 day deferral period, and Citizenship and Immigration Canada will endeavour to process the permanent residence application within 60 days. Immigration, Refugees and Citizenship Canada will not process the application if the applicant does not have valid temporary resident status in Canada.
The current processing time is 12 months.  The Applicant will receive “first-stage approval” at around the half-way point if it is determined that the spouse/common-law partnership is bona fide, and the applicant will be entitled to an open work permit. Processing times vary depending on the visa post, and range from 4 months to 38 months.   There is no first-stage approval for the issuance of open work permits.
There is currently a pilot project in place to provide work permits to applicants who have valid temporary resident status after 2ish months of processing. The permanent residence application is completely separate from any ability to work in Canada.
There is no appeal right to the Immigration Appeal Division.  The only recourse is an application to Federal Court for judicial review. There is a general appeal right to the Immigration Appeal Division, except for refusals based on serious criminality, terrorism, national security, espionage, and similar serious matters.  The only recourse in those situations is an application to Federal Court for judicial review.
If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, then the permanent residence application will be refused, and the applicant must start over from outside Canada. If the applicant leaves Canada and is for whatever reason denied re-entry by the Canada Border Services Agency, this will generally not impact the permanent residence application.

Inside Canada Spousal Sponsorship When there are Children Outside Canada

I recently met with an individual who was given erroneous advice.  She was told that she should not file an “Application for Permanent Residence from within Canada – Spouse or Common-law Partner in Canada” (“Inside Canada Sponsorship“) because she had dependent children living overseas, and that if she did the Inside Canada Sponsorship her children would not be able to accompany her to Canada.

This is not the case.

Section 5.11 of Citizenship and Immigration Canada’s Inland Processing Manual 8 – Spouse or Common Law Partner in Canada states that:

For dependent children living outside Canada, the [Case Processing Centre – Vegreville] will forward a copy of the permanent residence application listing the dependent children and their relevant contact information to the responsible visa office for verification of the relationship, once the sponsor and applicant have been assessed and approved against eligibility requirements.

The visa office will determine admissibility of dependent children outside Canada, conduct interviews if necessary and advise the CPC-V of the outcome by updating the electronic record.  The CPC then informs the CIC [office] responsible for the applicant’s place of residence that permanent residence may be granted.  Once the CIC [office] has granted permanent residence to the principal applicant, it will notify the visa office, which will issue permanent resident visas to the overseas dependent children who are seeking permanent residence.

There are many differences between the Inside Canada Sponsorship and the outside Canada sponsorship.  Whether children outside of Canada can accompany the principal applicant in the same application is not one of them.


Spousal Sponsorships where the Sponsor Does not Live in Canada

Section 133(2) of the Immigration and Refugee Protection Regulations (the “Regulations”) provides that:

A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes [an application to sponsor a member of the Family Class] and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.

(Emphasis Added)

I have dealt with this issue on numerous occasions, and, depending on the visa post, Citizenship and Immigration Canada (“CIC“) may scrutinize in some detail the sponsor’s intention to actually reside in Canada with their spouse, or to simply get the principal applicant permanent resident status without actually immigrating to Canada.

The Embassy of Canada in the United Arab Emirates asks applicants to complete a Residency Questionnaire for their sponsors if they reside outside of Canada, and I have reproduced the questions below.  These questions can serve as a useful guide to anyone submitting a family class application where s. 133(2) of the Regulations applies.

  1. Is your sponsor currently a Canadian citizen or a Permanent Resident? 
  2. Is your sponsor currently in Canada?
    1. If yes, then how long has the sponsor been physically residing in Canada?
    2. If yes, then when did you last see your sponsor?
    3. If no, then how long has the sponsor been living outside of Canada?
  3. If your sponsor is not living in Canada, then please explain why and when he/she intends to return to reside in Canada once your visa is issued.  Please provide as many details as possible.
  4. What preparations have you and/or your sponsor made for your move to Canada?  Please provide documentary proof if possible.
  5. If you have school aged children, have you made enquiries with the local school board? If yes, which school? If no, why not?
  6. Has the school, where your school-aged child(ren) is currently attending issued a transfer certificate?
  7. Will you and your spouse be both moving to Canada and reside together permanently?
  8. Will you, the principal applicant, cancel the Gulf residence visa? Why or why not?
  9. Does your sponsor own any of the following assets in Canada? Bank account, apartment, house, business, other..
  10. Has your sponsor filed the most recent annual tax filing with the Canada Revenue Agency as a factual resident of Canada?
  11. Is your sponsor currently employed in a permanent full-time position in Canada? Please provide details if yes.

The final two questions retain to changes in circumstance post-submitting the application, and I have not reproduced them here because my hope is that by providing answers and context to the eleven questions above, you will avoid delays in processing by having status update requests.


De Facto Family Members

Many people are often try to sponsor an adult sibling only to learn that adult siblings (and adult children) are not eligible to be sponsored under the family class. However, in certain cases, such individuals may be eligible for humanitarian & compassionate grounds as de facto family members.
Continue reading →


Racial Profiling at Citizenship and Immigration Canada?

Charlie Gillis has an interesting article Macleans Magazine today titled “Who Doesn’t Get Into Canada”. The article analyses a government report titled “Social and Economic Outcomes of Second Generation Youth” in the context of broader trends in Canadian immigration patterns.  

The government report makes many very blunt observations, including that:

  • Chinese and South Asians are the most likely to have university degrees or higher, and to be employed in high-skilled occupations; and
  • Second-generation youth of Caribbean and Latin American origin don’t fare as well. They tend to obtain lover levels of education than native-born Canadian kids and wind up in less skilled jobs.

Mr. Gillis uses this information to provide the first discussion (that I have seen) on the effects of Bill C-50. Passed in 2008, this Bill provided, amongst other things, the Minister of Immigration with the power to:

  • Limit the number of new applications;
  • Reject applications;
  • Decide the order in which new applications are processed;
  • Delay the processing of applications from specific missions abroad in order to speed those from others; and
  • Give priority to qualified skilled professionals applying under the economic class categories.

Mr. Gillis notes that the impact has appeared to have been increased wait times for family class applicants of South American or Caribbean descent that are disproportionately greater than the increase for those of Asian descent. He notes that:

The average wait time for someone wishing to bring a spouse into the country through Kingston, Jamaica has ballooned to 15 months, fully three times the processing time in 2006. A similar application lodged in New Delhi takes just six months.

……

Caribbean, Latin American and African candidates appear to have been hit hardest. Canadian-based parents who apply to the immigration post in Nairobi to bring over their children are told they must wait three years, nearly double the projected wait in 2006. In Guatemala, the delay is up 63 per cent during the same period, to 23 months, while wait times for Asian and Pacific countries have grown only marginally.

The article suggests that this reflects an increased importance in the value Citizenship and Immigration Canada places on individuals from certain regions.

Is this true?  Is family re-unification being stunted under the Conservative government?  Is there a racial preference given to Asians over other races?

Continue reading “Racial Profiling at Citizenship and Immigration Canada?”


Significant Changes Coming to the Spousal-Sponsorship Program

Fresh off his efforts to crack down on crooked consultants, and having just introduced legislation to deter “bogus refugees,” Jason Kenney, the Minister of Citizenship and Immigration, is now focusing his scopes on deterring sham marriages.  He has made (or is in the process of making) two significant changes to Canada’s spousal-sponsorship program.  While both of his reforms will have its critics, the changes are likely to have the overwhelming support of the Canadian public, and continue the Conservative government’s trend of harmonizingCanada’s immigration system with other Western democracies.

The first change is a five-year sponsorship bar for recently sponsored spouses.  A previously-sponsored spouse will now be barred from sponsoring a new spouse or partner for the first five years that the previously sponsored spouse is a permanent resident.  The government’s objective is to prevent an individual who has been sponsored from divorcing the sponsor and shortly thereafter getting married and sponsoring someone else.

This change took affect on March 2, 2012.  If you were in the process of preparing a spousal-sponsorship application, and this change applies to you, then I’m sorry toinform you that there was no grace period. You will (likely) have to wait until you have been in Canadafor five-years before you can sponsor your spouse.

The second change is the introduction of conditional residency for certain spouses.  Spouses or common-law or conjugal partners who are in a relationship of two years or less with their sponsor will soon be subject to a period of conditional permanent residence.  The condition would require the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a period of two years following the acquisition of permanent residence status.  If this condition is not met, then the permanent resident and his/her dependents will lose their status inCanada, and be subject to removal proceedings.

There are two exceptions to the conditional permanent residency rule.  The first is if the sponsor and the sponsored spouse have a child together.   The second is if the sponsored spouse can demonstrate that he/she suffered abuse or neglect.  Abuse can be physical (assault and forcible confinement), sexual (sexual assault), psychological (threats and intimidation), and financial (fraud and extortion).   Neglect consists of the sponsor’s failure to provide the necessaries of life.

Implementing conditional permanent residency is expected to be an expensive endeavor.  Indeed, the government anticipates that the quantitative costs will exceed the benefits.  The Conservatives believe that it will cost $11-million to implement conditional permanent residency during its first ten years.  The costs include investigating cases of alleged fraud, taking enforcement action against those found to be non-complaint with the condition, and increased admissibility hearings and appeals.

The Conservative believe that the benefit will be $5.5-million during the same period.  The savings are expected to come from a reduction in spousal-sponsorship applications.

An additional benefit will hopefully be that Citizenship and Immigration Canada will be less scrutinizing of spousal-sponsorship applications.  In 2010, 46,300 couples submitted spousal-sponsorship applications.  Sixteen percent of applications were refused, primarily because the couples did not satisfy CIC that their relationships were genuine.  While some of the 84% of couples that were approved were likely sham marriages that slipped through the cracks, it is probable that an even greater number of genuine marriages were rejected.

The Immigration Appeal Division meanwhile recently released statistics showing that as of September 30, 2011, 6,399 spousal-sponsorship appeals were underway acrossCanada.  Each of these appeals takes up a serious amount of time and resources.

Presumably, once conditional permanent residency is in place Citizenship and Immigration Canada will be able to reduce the scrutiny that it apples to spousal-sponsorship applications.  For example, one would hope that an officer who has concerns about the genuineness of a relationship but is unsure will ultimately approve the application knowing that the principal applicant will have to cohabit in a conjugal relationship with the sponsor for two years or face removal.  Such a shift in mentality could greatly reduce processing times, save money, and decrease the burden on applicants.

Of course, whether or not there is actually a decrease in the burden on applicants will depend on how the government implements conditional permanent residency.  The proposed regulatory change is unclear as to whether immigrants have to be proactive in getting the condition removed, or whether the passage of time makes it automatic.  I shudder to think that all couples encompassed by the rule will have to submit new applications establishing the continuing genuineness of their relationship

Because of that is the case, then conditional permanent residency will be a far more expensive endeavor than the government is predicting.


Court Discusses Parameters of Spouse or Common-Law in Canada Class

Canadians wanting to sponsor foreign nationals have to decide whether they want to apply as a member of the Family Class or as a member of the Spouse or Common-Law Partner in Canada Class.

To be a member of the Spouse or Common-Law Partner in Canada Class, applicants must:

  1. be the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
  2. have a temporary resident status in Canada; and
  3. be the subject of a sponsorship application.

Said v. Canada (Citizenship and Immigration), 2011 FC 1245 recently confirmed an important point for people considering applying under this class.

You have to be cohabiting.  If there is no cohabitation then there is no possible sponsorship.  There is no requirement for immigration officers to consider whether a marriage is genuine if the couple are not cohabiting.