New spousal policy in right direction

February 21st, 2005

By Guidy Mamann

On Friday, Citizenship and Immigration Canada posted a news release entitled Good News For Spouses And Common-Law Partners.

This, indeed, was good news. Effective immediately, “most” foreigners without status in Canada will qualify to be sponsored under the soon to be amended Spouse Or Common Law Partner In Canada Class.

These changes give effect to Judy Sgro’s promise made as a result of the Strippergate controversy to revoke a two-year-old policy to deny Canadians the right to sponsor their out-of status spouses from within Canada on humanitarian grounds. This announcement is Joe Volpe’s fulfillment of that promise.

Applying under this expanded class definitely has its benefits.

Applicants who slip out of status before or during the process will no longer be automatically refused. Their children abroad can be included in the same application. Once the spouses’ application has been approved-in-principle they will be entitled to apply for a work and/or study permit pending finalization of their application. Also, their application will be processed much more quickly than under the humanitarian and compassionate (H&C) class which was the only other inland alternative.

Now, the not-so-good news. Not everyone will qualify under the amended class. Applying overseas remains the “principal channel” to immigrate to Canada.

The department concedes that such applications are more “risky” than overseas applications. Those who have expired status in Canada are included but not necessarily others in Canada who may be otherwise inadmissible. The release states that applicants holding a temporary resident permit “for reasons of inadmissibility other than lack of status” will not qualify and that those who are under “enforceable removal order(s) … will be required to leave Canada.” It is unclear if this means that the latter are ineligible to apply or that they may be removed from Canada before their application has been finalized.

Until the new regulations are published, I would advise caution by any individual who has made a refugee claim; worked or studied without authorization; entered Canada undetected or with false or without valid travel documents; has been charged or convicted of an offence; or has been previously deported from Canada but who re-entered without ministerial consent.

Applicants are reminded that if an officer determines the relationship is not genuine, the sponsor has no right of appeal to the Immigration and Refugee Board but only a right to seek Federal Court permission to have the decision judicially reviewed. The grounds for such reviews are very narrow.

Applicants who have pending H&C applications supported by spousal sponsorships will, “in most cases,” be automatically assessed under this new policy. H&C applicants who have pending applications but who haven’t submitted spousal sponsorship forms will, apparently, be contacted by CIC. People who are outside of Canada and who wish to come to Canada to apply inland will have the tough task of proving a temporary intent in coming to Canada for this purpose.

Applicants who are in Canada and have recently applied overseas should speak to their immigration advisor to see if this is still the most appropriate action. Since the department has said it will not transfer overseas files to inland offices, such applicants may wish to consider discontinuing their overseas applications and reapply inland.

While this announcement is a step in the right direction, a few questions are worth asking. Why leave open the possibility that some spouses will be excluded from this class for minor grounds of inadmissibility other than the expiry of status? Why do those applying overseas have a full right of appeal while their inland counterparts do not? Since this policy is designed to keep spouses together through this application process, will the department adopt a policy that a removal order should only be executed during this process when absolutely necessary?

Anyway, this announcement is clearly a step in the right direction.