Conditional Permanent Residency for Some Spousal Sponsorships

On October 26, 2012, Citizenship and Immigration Canada (“CIC“) implemented conditional permanent residency for certain people who immigrate to Canada under the spousal-sponsorship program.  The implementation of conditional permanent residency took affect on October 25, 2012, the day prior to CIC publicizing it.   The change was not retroactive, and will not affect sponsorship applications which were received by CIC prior to October 25, 2012.

CIC has stated that the goal of introducing conditional permanent residency is to reduce instances of marriages of convenience.

What Conditional Permanent Residency Is, and Who it Applies to

Conditional permanent residency applies to individuals who are the spouse, common-law, or conjugal partner of their sponsor for two years or less when they submit their sponsorship applications and who do not have children in common with their sponsor when they submit the sponsorship applications (“Conditional Permanent Residents“).  Conditional Permanent Residents are required to cohabit in a conjugal relationship with their sponsors for a continuous period of two years after the day on which they become permanent residents (the “Condition“).  If CIC determines that Conditional Permanent Residents have breached the Condition, CIC will declare them inadmissible to Canada, and removal proceedings will be initiated.  Conditional Permanent Residents are able to appeal such decisions to the Immigration Appeal Division, which can consider humanitarian & compassionate considerations.

Specifically, the Condition applies if the couple does not have any children in common and:

  • has been married for two years or less;
  • dated for four years, but has been married for two years or less;
  • has been in a conjugal relationship for two years or less;
  • has cohabited in a common-law relationship for two years or less; or
  • has been in a common-law or conjugal relationship for more than two years and has been married for less than two years, and the person submitted an application as a spouse.

The Condition does apply if the couple

  • has been married for more than two years;
  • has been in a conjugal relationship for more than two years and the person submitted an application as a conjugal partner;
  • has cohabited in a common-law relationship for more than two years and the person submitted an application as a common-law partner; or
  • has children in common.

Having the Condition Removed and Investigations

At the end of the two-year period, a Conditional Permanent Resident does not have to submit an application to CIC to have the Condition removed.  Instead, CIC automatically removes the Condition after two years if there is no ongoing investigation into whether the Conditional Permanent Resident complied with the Condition.

CIC conducts an investigation into a Conditional Permanent Resident either as a result of a random assessment, or as a result of information that CIC receives which leads it to suspect that a Conditional Permanent Resident breached the Condition.  During an investigation into whether a Conditional Permanent Resident complied with the Condition, the immigrant must provide evidence of their compliance with the Condition.  In other words, the sponsored spouse or partner must provide evidence that he or she cohabited in a conjugal relationship with their sponsor for the two-year period following the individual immigrating to Canada.

CIC may also conduct an investigation into a permanent resident after it has already removed the Condition from the permanent resident’s file if it receives information that the Conditional Permanent Resident breached the Condition.

Permanent residents who are the subject of ongoing investigations into whether they were previously Conditional Permanent Resident who breached the Condition may not be granted citizenship.

In other words, while the Condition will be automatically removed after the two-year period (which will save most individuals the need to complete extensive paperwork), CIC can still commence an investigation and depending on the results of the investigation instigate removal proceedings against a person who it believes breached the Condition even after the two-year period has elapsed.

Exemptions 

To reiterate, the Condition will not apply to people who have been the spouse, common-law, or conjugal partner of the sponsor for two years or more, or, if they have been in such a relationship for less than two years, have a child together.

The Condition will also cease to apply to Conditional Permanent Residents where there is evidence that the sponsor died during the two-year period, in instances where there is evidence of abuse or neglect from the sponsor, or in instances of a failure by the sponsor to protect the Conditional Permanent Resident from abuse or neglect by another person related to the sponsor.

CIC has provided extensive definitions of what consitutes “abuse” or “neglect” that are beyond the scope of this newsletter.  We have provided at the end of this newsletter a link to the relevant CIC Operational Bulletin which discusses the introduction of conditional permanent residency. . 

More information on conditional permanent residency can be found in Operational Bulletin 480.

We have reproduced the training material for Operational Bulletin 480 below. Please note that the reproduction did not occur with the affiliation of the Government of Canada, and should not be viewed as legal advice.

 


Who Should Consider the Federal Skilled Trades Class?

(The following is an article that I wrote for the March 2013 edition of Canadian Immigrant Magazine)

On January 2, 2013, Citizenship and Immigration Canada (“CIC”) opened the Federal Skilled Trades Program (“FSTP”).  CIC will process up to 3,000 FSTP applications in 2013.  For certain people, the FSTP will be an attractive alternative to those who fall through the cracks of the Federal Skilled Worker Program (the “Skilled Worker Program”) and the Canadian Experience Class (“CEC”).

To be eligible for the FSTP, applicants must meet five requirements.

First, they must have twenty-four months of work experience in an eligible skilled trade during the five year period preceding their application.  CIC has designated forty-three trades as being eligible for the program.  Of these, seventeen occupations are capped at 100 applications.  Applicants will accordingly need to check the CIC website to see whether the quota has been reached for their occupation prior to applying.

Second, applicants must have an offer of continuous full-time employment in Canada from up to two employers for a total period of at least one year in their skilled trade.  As “full-time” means at least thirty hours of week, applicants could be eligible if they obtain offers from two employers who provide fifteen hours each per week.  The effect of this requirement is that most FSTP applicants will have to obtain job offers from employers who have been issued positive Labour Market Opinions from Human Resources and Skills Development Canada (“Service Canada”).  Alternatively, applicants do not need a job offer if they possess a Certificate of Qualification from a provincial or territorial Apprenticeship Authority.

Third, applicants will have to satisfy the employment requirements of their skilled trade as described by Service Canada’s National Occupational Classification system.

Fourth, applicants must meet or exceed minimum language thresholds.  However, the language requirements for the FSTP are much lower than they will be for the new Skilled Worker Program, and are also slightly lower than those for the Canadian Experience Class.  Currently, FSTP applicants must achieve Canadian Language Benchmark (“CLB”) 4 in Speaking and Listening, and CLB 5 in Reading and Writing.  For those taking the International English Language Testing System (“IELTS”), this corresponds to a 5.0 in Listening, a 5.0 in Speaking, a 3.5 in Reading, and a 4.0 in Writing.

Finally, applicants must intend to reside outside of Quebec.

So… Who is this Program For?

At first glance, one might wonder who the FSTP benefits.  Every occupation which is eligible for the FSTP is also eligible for the CEC.  With CIC reducing the CEC employment experience requirement from two years to one, won’t most people who are eligible for the FSTP also be eligible for the CEC, and not worry about quotas and caps?

As well, if an applicant has an offer of employment from a Canadian employer which qualifies for the FSTP, then he/she will also likely have arranged employment which makes qualifies for the Skilled Worker program.  Besides the fact that CIC lately appears to be in the habit of terminating Skilled Worker applications, is there any reason why someone with a job offer would apply to the FSTP over the Skilled Worker Program?

Yes.

The first category of people who will benefit from the FSTP are those whose IELTS results do not meet the requirements of either the CEC or the Skilled Worker Program.  The Skilled Worker Program’s language requirements are about to increase dramatically to CLB 7 for all abilities.  Many people with good English simply will nonetheless be unable to achieve these test results.  For tradespersons applying in NOC 0 or A occupations, the difference in language requirements between the FSTP and the CEC is also significant.

The second group of people who will benefit from the FSTP are individuals who do not have job offers, but who have Certificates of Qualification.  The FSTP also benefits people who wish or need to work for more than one employer.

Finally, the third category of people who will benefit from the FSTP are those whose previous employment experience was gained through self employment.  Many tradespersons in Canada gain their experience as independent contractors.  This experience does not count towards the CEC, but it does towards the FSTP.

CIC is promoting the FSTP as being away to facilitate the permanent entry of skilled tradespersons into Canada.  Many of these people of course already had pathways to permanent residency through the CEC and the Skilled Worker Program.  The FSTP, however, seals some of the cracks in these other two programs which many tradespersons who will make valuable contributions to the Canadian economy sadly previously fell through.