Spousal sponsorship in Canada

Three categories, three different tests, and the wrong one is an eligibility refusal rather than a judgment call. A spouse is married to the sponsor and the marriage is valid where it took place and under Canadian law.

A common-law partner is defined by section 1(1) of the Regulations as somebody cohabiting with the sponsor in a conjugal relationship and having done so for at least one year. Continuously: a year of weekends does not qualify, and neither does a year interrupted by a long separation.

A conjugal partner, under section 2, is a foreign national residing outside Canada who has been in a conjugal relationship with the sponsor for at least one year. It exists for couples who cannot marry and cannot live together, and it is refused often because it is applied for by couples who simply chose not to.

Section 1(2) covers the case people miss. Somebody in a conjugal relationship for at least a year who is unable to cohabit because of persecution or any form of penal control is treated as a common-law partner even though they have not lived together. That is the provision for a same-sex couple kept apart by the law of the country they are in, and it is a stronger route than a conjugal partner application where it applies. Same-sex spouses, common-law partners and conjugal partners are sponsored on exactly the same terms as any other couple.

Whether the relationship is real. Section 4(1) of the Regulations says a foreign national is not a spouse or partner if the relationship was entered into primarily to acquire status under the Act, or if it is not genuine. Since 2010 those are two separate grounds and either one is enough on its own.

So an entirely genuine marriage can still be refused if the officer concludes it began primarily for immigration purposes, and a relationship entered into for the right reasons can be refused if the evidence does not show it is genuine now. Both halves need answering, and most refused applications answered only one.

The evidence that works is the ordinary evidence of a shared life across time: a joint tenancy, shared accounts, each family knowing the other, photographs that are not all from the wedding, and messages that span the whole relationship rather than the fortnight before filing.

Inland means the spouse or common-law partner in Canada class. Section 124 of the Regulations sets three conditions: the applicant is the spouse or common-law partner of a sponsor and cohabits with them in Canada, holds temporary resident status here, and is the subject of a sponsorship application. Miss any of the three and the class does not apply.

Outland means the family class, filed through a visa office. Despite the name it can be used by somebody who is physically in Canada, and it is often the better choice for exactly that person.

The trade is an open work permit against a right of appeal. Inland brings the permit and gives up the appeal to the Immigration Appeal Division. Outland keeps the appeal and gives up the permit. Which matters more depends on whether the household needs the income now or the second chance later.

Paragraph 117(9)(d) is the harshest provision in family class law. If the sponsor previously became a permanent resident and, at the time of that application, the person they now want to sponsor was a non-accompanying family member who was not examined, that person cannot be sponsored. Not later, not after an explanation, not on compassionate grounds within the class itself.

It catches people who were told by somebody else that an existing spouse or child did not need to be listed because they were not coming. Subsection (10) carves out a narrow exception where the officer decided examination was not required, and outside that the remedy is humanitarian and compassionate relief rather than the family class.

If there is any history of an undeclared spouse or child, raise it at the first meeting rather than after the application is filed.

On an outland application the sponsor has a right of appeal to the Immigration Appeal Division under section 63(1) of the Act, and Rule 16(a) gives 30 days from receipt of the decision and the written reasons. The Division can hear evidence the officer never saw, which is why it is a better remedy than judicial review where both are open.

On an inland application there is no appeal. The route is an application for leave and judicial review at the Federal Court, on the ordinary 15 or 60 day clock, and the court asks only whether the decision was reasonable and the process fair.

Many appeals settle before a hearing through the Division's alternative dispute resolution process, where the Minister's counsel reads the file again with the new evidence in front of them.