By Catherine A. Sas, QC
Special to The Post
A common question that arises when sponsoring a spouse already in Canada is which application process to choose - the Family Class or the Inland spousal category?
A call to the IRCC call centre usually focuses solely on geography with callers being told that if their spouse is already inside of Canada that they should use the Inland Spousal application.
The Family Class (FC) has been the longstanding standard application process to sponsor your spouse for permanent residence to Canada.
A person is considered to be your spouse if you are legally married or if you have been cohabiting in a conjugal relationship for a period of more than twelve months such that you are common-law partners.
The FC process generally applies to spouses that are overseas and the person remains outside of Canada throughout the application process.
But for many people who are already in Canada for work or study, or who are from countries that don't have a visa requirement to come to Canada making travel to Canada easy, the FC sponsorship process is also available to you and may be a better option than the Inland Spousal (IS) category.
The FC application process is generally faster than the IS category although processing times for both processes have become lengthy in recent years. Also for those needing to travel outside of Canada frequently or for lengthy periods of time, the FC may be a better choice.
The FC process also has a right of appeal to the Immigration Appeal Division (IAD) in the event that your application is refused. This may be an important consideration depending upon your circumstances. So speed of processing, ease of travel and IAD appeal rights are factors weighing in favour of the FC spousal sponsorship process.
The Inland Spousal category (IS) was introduced in 2005 and it replaced the former process which was to make a Humanitarian and Compassionate application for permanent residence from within Canada.
This new category arose as a result of the introduction of the Public Policy guidelines for processing spouses from within Canada. The IS public policy guidelines recognized that the separation of spouses created hardship and that people should be able to sponsor their spouses while in Canada.
The policy also recognized that the importance of family reunification warranted overcoming minor transgressions of the Immigration and Refugee Protection Act (IRPA) within the inland sponsorship process. The policy guidelines stipulate that a lack of status in Canada can be overcome within the IS application process in certain specific circumstances:
• Persons who have overstayed a visa, visitor record work permit or student permit;
• Persons who have worked or studied without being authorized to do so under the Act;
• Persons who have entered Canada without the required visa or other document required under the Regulations;
• Persons who have entered Canada without a vailed passport or travel document (provided valid documents are acquired by the time CIC seeks to grant permanent residence)
Furthermore, given that IS cases would take longer for processing, provision was made for the sponsored spouse to apply for a work permit while in Canada.
Applicants for permanent residence could submit an application for a work permit at the same time as their residency application and if their relationship was determined to be genuine, they would receive a work permit when this initial determination was made.
Given the increase in processing times for these types of applications - which have been taking three years or more in some cases - CIC introduced a new work permit program in December 2014 to alleviate the hardship that spouses in Canada were facing.
Now IS applicants can submit their work permit applications and they will be issued a work permit within four months independent of the assessment of the merits of their spousal application.
This is a significant factor for consideration when determining whether to apply as an FC or IS applicant.
A drawback to the IS category is that there is no appeal right to the IAD if your case is refused and failed applicants then have to apply under the FC category.
So the benefits of this program are that applicants can remain in Canada with their spouse, minor transgressions of IRPA can be overcome and a work permit can be obtained within four months. The downside is a lengthier processing time and no option for an appeal to the IAD.
Applying for permanent residence as a spousal applicant is not as simple as stating that "if you are in Canada apply as an Inland Spousal applicant".
You will want to consider the particular circumstances of your relationship such as whether you will need to travel frequently or for long periods of time outside of Canada, if there have been any breaches of IRPA, if your relationship has unique circumstances for which you may need to resort to the IAD for an appeal of a refusal or whether you will need to be able to work in Canada sooner rather than later.
These are essential considerations in determining whether to make a spousal sponsorship application under either the Family Class or the Inland Spousal category.
For the full public policy guideline see the following: http://www.cic.gc.ca/english/resources/manuals/ip/ip08-eng.pdf
Catherine Sas, Q.C. has over 25 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to www.canadian-visa-lawyer.comwww.canadian-visa-lawyer.com or email casas@shaw.ca.
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