Last Updated on May 22, 2019 by Steven Meurrens
It is generally well known that Canadian citizens or permanent residents wishing to sponsor their spouses or common-law partners from abroad can typically do so. As well, most people know that Canadians who live with their spouses or common-law partners who are inside Canada as legal visitors, workers or students can sponsor them as well. What is less known is that they can also sponsor those who are in Canada without status.
Canada since 2005 has had a public policy in which Immigration, Refugees and Citizenship Canada will process permanent residence applications from the spouses and common-law partners of Canadian citizens and permanent residents in Canada who do not have legal immigration status. The objective of the policy is to facilitate family reunification and facilitate processing in cases where families are already residing together in Canada. It is to prevent the hardship caused by family separation.
Lack of legal immigration status includes people who overstayed visas or permits, people who worked or studied without authorization from the government to do so, people who entered in Canada without required visas and people who entered Canada without valid passports. The most typical situation involves people who travelled to Canada, became romantically involved with a Canadian, and then forgot that they needed to leave Canada by the end of their authorized stay. It also frequently occurs where people did try to extend their status in Canada, but their applications were returned due to incomplete forms or incorrect fee payments.
The public policy does not extend to those who were previously deported and returned to Canada without authorization, those who entered Canada with fraudulent or improperly obtained passports or visas and those who are facing deportation for reasons such as misrepresentation or criminality.
People submitting sponsorship applications under the public policy need to meet all other immigration requirements, other than having legal status in Canada. They need to show that their relationship is genuine and not for immigration purposes, and also that they are not inadmissible to Canada.
Applicants submitting permanent residence under the public policy should understand that the general misrepresentation provisions of Canadian immigration legislation apply. Those who commit material misrepresentations will be removed from Canada and banned from returning for five years. As such, it is important that applicants understand that they do not need to hide the fact that they are in Canada without status in their immigration applications, nor do they need to omit unauthorized work.
Unlike other applicants under the Spouse or Common-Law Partner in Canada Class, those applying for permanent residency under the public policy are not eligible to receive two year open work permits during the processing of the sponsorship application.
Finally, pursuant to the Federal Court of Canada’s decision in Wardlaw v. Canada (Citizenship and Immigration), 2019 FC 262, someone being eligible for the public policy does not preclude them from submitting a straight-up H&C application.
If an individual applies for permanent residency under the public policy, and they are subsequently discovered by the Canada Border Services Agency to be in Canada without status, then the CBSA will grant a 60 day deferral of removal. While this may not seem like a long deferral, in practice IRCC prioritizes the processing of files once they are notified by CBSA that the administrative referral of removal has started.
The deferral of removal will not apply in certain cases. Most importantly, it will not apply to those who have not already submitted their immigration applications. In other words, if someone has submitted their immigration application, and CBSA subsequently detains them for being in Canada without status, then the CBSA will defer their removal. If the CBSA discovers someone to be in Canada without status, determines that they are removal ready, and also determines that they have not yet submitted a sponsorship application, then they will not receive a deferral of removal.
The deferral of removal will not apply to those who are:
- Inadmissible for security, human or international rights violations, serious criminality, criminality and organized criminality;
- Those who have criminal charges pending;
- Those who have outstanding warrants for removal; and
- Those who have previously hindered or delayed removal.
These instances are rare. It is far more likely that a family will be separated, and a person removed from Canada, because they did not submit their applications before they were discovered to be in Canada without status. Hopefully, the more publicized the policy is (here is a link to it), the more people will apply before it is too late.