There are few things more disheartening then being told that your marriage is a sham – especially when it means you cannot live with your beloved in Canada.
Every year thousands of Canadian citizens and permanent residents (“PRs”) fall in love with someone from another country and those that fall hard enough will find themselves married. While some citizens and PRs will leave Canada to be with there spouse, others will embark on a bureaucratic and complicated process, mired in red tape, to sponsor their spouse’s immigration application to Canada. While many will succeed, others will fail, having their applications refused and relationships put on hold.
Spousal sponsorships can be refused for a number of reasons, including, for example, criminal records, sponsor bankruptcy, previous “issues” with Citizenship and Immigration Canada and the finding that a relationship is a fraud.
When faced with a refusal, the sponsor in Canada has the right to file an appeal at the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. In the first 9 months of 2007 nearly 6,000 appeals were filed at the IAD and nearly 10,000 appeals were pending, albeit, not all of them stemming from refused sponsorship applications. The IAD also reviews matters ranging from appeals of refused parental sponsorships to removal of permanent residents from Canada for reasons related to, criminality, failure to meet the PR residency requirement and failure to complete terms and conditions imposed on an entrepreneur.
Even still, this is quite the workload for the decision-makers (“Members”), as there are were 28 of them working nationally by the fall of 2007, suggesting a backlog of almost 350 decisions per Member and processing times to have an appeal heard at over one year.
When the stakes in play are the future of a relationship and the waiting times for appeals are less than forgiving, the importance of and IAD appeal is apparent. But wait, it gets better. If you have been refused at appeal and want to re-apply to sponsor your spouse, think again.
The legal principle of res judicata tells us that once a decision is made by the IAD, the IAD is bound by it, even if a sponsor re-applies to sponsor his or her spouse and that application is refused and then appealed to the IAD for a second time. There are exceptions to this principle, including special circumstances, such as fraud or misconduct giving rise to a breach of natural justice or the existence of decisive new evidence. The onus is on the sponsor to show that this very high threshold is met.
What all of this boils down to is that sponsorship appeals at the IAD are not to be taken lightly. You are best served by putting the time and effort into submitting your sponsorship application in the first place to avoid having to deal with this process. If you are refused and must appeal, be ready for a long and drawn out process that requires ongoing attention, careful preparation and expert presentation.
Showing posts with label IAD. Show all posts
Showing posts with label IAD. Show all posts
Wednesday, February 13, 2008
Tuesday, June 12, 2007
Is permanent forever? What all permanent residents need to know about their status.
For those of you who haven’t figured it out yet, “permanent” resident status isn’t really permanent; rather, it is conditional. And by conditional I mean that if you don’t meet certain obligations under Canada’s immigration laws, you can lose your status and find yourself back in your country of citizenship.
All permanent residents are issued wallet-sized cards that are valid evidence of their status in Canada, usually within a few weeks of landing as immigrants. These cards ingeniously have expiry dates on them, suggesting to permanent residents that they should reapply for new cards every five years.
So what happens when your permanent resident card expires? Nothing. The expiration of the card does not mean expiration of your status. Rather, it just means that the card is no longer valid evidence of your permanent resident status. Just like an expired Canadian passport doesn’t mean you lose your citizenship, an expired permanent resident card does not mean you aren’t a permanent resident.
Still, you are urged (but definitely not required) to get a new card every five years. This five-year period generally corresponds to a section in our immigration laws that require permanent residents to be physically present in Canada 730 days in every five-year period to maintain their status.
There are all sorts of exceptions to the requirement to be physically present in Canada, including accompanying a Canadian spouse outside of Canada or working for a Canadian company outside of Canada, to name a few. Speak to a lawyer if you aren’t sure whether you’ve met the requirements or one of the exceptions.
The only way you can lose your status for failing to meet the residency requirement goes something like this: an immigration officer has to review your residence history over the previous five years upon your re-entry into Canada after a long absence or upon your application for a new permanent resident card after the expiration of a previous card. If the officer believes that you have fallen short of the 730-day requirement, that officer can look at humanitarian and compassionate reasons for allowing you to keep your status, usually involving the best interests of any children involved. If the officer still isn’t satisfied that you should keep your status, he or she will write up a report and give you an opportunity to appeal that decision at the Immigration Appeal Division. It is only after you either lose your appeal or fail to file an appeal that you lose your status.
So, really, it is entirely possible to not meet the residency requirement, but still have status. Alternately, it is possible for you to have a valid permanent resident card, but not meet the residency obligation.
If you find yourself in a situation where you are entering Canada and an immigration officer is questioning you about your residency over the past five years and you aren’t sure whether you meet the residency requirement, you should know your basic rights.
First, as a permanent resident you have the right to enter Canada. Second, an officer must allow you into Canada after establishing that you are a permanent resident of Canada. (Although it is always good to travel with the contact information for your immigration lawyer just in case you face difficulties entering Canada.)
Third, you may use your permanent resident card as evidence of your status in Canada whether or not you have met the residency requirement. You also have the right to not answer any questions about your residency over the previous five years once the officer establishes that you are a permanent resident.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at Ryan.Rosenberg@larlee.com, call 604-681-9887 or visit www.larlee.com.
All permanent residents are issued wallet-sized cards that are valid evidence of their status in Canada, usually within a few weeks of landing as immigrants. These cards ingeniously have expiry dates on them, suggesting to permanent residents that they should reapply for new cards every five years.
So what happens when your permanent resident card expires? Nothing. The expiration of the card does not mean expiration of your status. Rather, it just means that the card is no longer valid evidence of your permanent resident status. Just like an expired Canadian passport doesn’t mean you lose your citizenship, an expired permanent resident card does not mean you aren’t a permanent resident.
Still, you are urged (but definitely not required) to get a new card every five years. This five-year period generally corresponds to a section in our immigration laws that require permanent residents to be physically present in Canada 730 days in every five-year period to maintain their status.
There are all sorts of exceptions to the requirement to be physically present in Canada, including accompanying a Canadian spouse outside of Canada or working for a Canadian company outside of Canada, to name a few. Speak to a lawyer if you aren’t sure whether you’ve met the requirements or one of the exceptions.
The only way you can lose your status for failing to meet the residency requirement goes something like this: an immigration officer has to review your residence history over the previous five years upon your re-entry into Canada after a long absence or upon your application for a new permanent resident card after the expiration of a previous card. If the officer believes that you have fallen short of the 730-day requirement, that officer can look at humanitarian and compassionate reasons for allowing you to keep your status, usually involving the best interests of any children involved. If the officer still isn’t satisfied that you should keep your status, he or she will write up a report and give you an opportunity to appeal that decision at the Immigration Appeal Division. It is only after you either lose your appeal or fail to file an appeal that you lose your status.
So, really, it is entirely possible to not meet the residency requirement, but still have status. Alternately, it is possible for you to have a valid permanent resident card, but not meet the residency obligation.
If you find yourself in a situation where you are entering Canada and an immigration officer is questioning you about your residency over the past five years and you aren’t sure whether you meet the residency requirement, you should know your basic rights.
First, as a permanent resident you have the right to enter Canada. Second, an officer must allow you into Canada after establishing that you are a permanent resident of Canada. (Although it is always good to travel with the contact information for your immigration lawyer just in case you face difficulties entering Canada.)
Third, you may use your permanent resident card as evidence of your status in Canada whether or not you have met the residency requirement. You also have the right to not answer any questions about your residency over the previous five years once the officer establishes that you are a permanent resident.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at Ryan.Rosenberg@larlee.com, call 604-681-9887 or visit www.larlee.com.
Friday, April 08, 2005
Sponsoring your spouse
Spousal connections
With recent policy changes on spousal sponsorships, there is much to consider before you send in your application.
Under the Immigration and Refugee Protection Act, Canadian citizens and permanent residents can sponsor their spouse to immigrate to Canada.
Citizens or permanent residents already cohabiting with their spouse in Canada can file a sponsorship application as a member of the “in-land class” of applicants or abroad as a member of the “family class” of applicants. When one spouse lives in Canada and the other spouse lives abroad the application must be made through the family class.
Which class you choose to use will impact who assesses the application, what rights the applicant has and the processing time that it takes to finalize the application. The in-land class is processed entirely in Canada and the family class is processed partially in Canada and partially at the visa post that services the applicant’s country of citizenship or residence.
There are a number of benefits in using the family class, including a right to appeal if the application is refused, historically faster processing time than the inland class and the applicant is free to live outside of Canada while the application is being processed.
Also, filing a family class application does not mean that you must be outside of Canada while the application is being processed. Applicants can be in or travel to Canada while the application is being processed so long as the applicant stays in status — that is, he or she has a valid visa.
The benefits of applying through the in-land class include the ability to continue to cohabit with your spouse while the application is being processed and an entitlement to an open study permit or work permit (once the application is approved in principle, but before a permanent resident visa is issued).
Be aware that the applicant cannot live outside Canada while an inland class application is being processed, but short trips abroad are typically allowed. Also, if the application is refused, in-land sponsors are not entitled to an appeal of the decision.
On February 18, 2005, Citizenship and Immigration Canada announced a new policy that prioritized the processing of all spousal applications and removed the requirement for in-land spouses to be in status when their application is submitted. That being said, it is always advised to remain in status when possible while in Canada.
This policy has opened Canada’s doors to spouses who are in Canada and whom are, for example, failed refugee claimants or people who forgot to extend their study, work or visitor visas.
To qualify under this policy, an applicant must be sponsored by a Canadian citizen or permanent resident who is their genuine spouse and with whom they cohabit.
There are a number of restrictions that will make a person ineligible for the program. For example, an applicant will not qualify if inadmissible to Canada for criminal, security or serious public health risks.
One of the most contentious issues stemming from this policy is the effect it will have on persons who are in the process of being removed from Canada. Filing an in-land spousal application will not always stop removal from Canada. But, if an applicant is removed from Canada prior to approval of an application, the applicant will be allowed to return to Canada upon approval.
In 2004, an estimated more than 40,000 spouses were reunified with their Canadian spouse through family-class applications. For the thousands still waiting in queue, the new policy also brings hope of quicker processing times and quicker reunification.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at rnrosenberg@larlee.com.
With recent policy changes on spousal sponsorships, there is much to consider before you send in your application.
Under the Immigration and Refugee Protection Act, Canadian citizens and permanent residents can sponsor their spouse to immigrate to Canada.
Citizens or permanent residents already cohabiting with their spouse in Canada can file a sponsorship application as a member of the “in-land class” of applicants or abroad as a member of the “family class” of applicants. When one spouse lives in Canada and the other spouse lives abroad the application must be made through the family class.
Which class you choose to use will impact who assesses the application, what rights the applicant has and the processing time that it takes to finalize the application. The in-land class is processed entirely in Canada and the family class is processed partially in Canada and partially at the visa post that services the applicant’s country of citizenship or residence.
There are a number of benefits in using the family class, including a right to appeal if the application is refused, historically faster processing time than the inland class and the applicant is free to live outside of Canada while the application is being processed.
Also, filing a family class application does not mean that you must be outside of Canada while the application is being processed. Applicants can be in or travel to Canada while the application is being processed so long as the applicant stays in status — that is, he or she has a valid visa.
The benefits of applying through the in-land class include the ability to continue to cohabit with your spouse while the application is being processed and an entitlement to an open study permit or work permit (once the application is approved in principle, but before a permanent resident visa is issued).
Be aware that the applicant cannot live outside Canada while an inland class application is being processed, but short trips abroad are typically allowed. Also, if the application is refused, in-land sponsors are not entitled to an appeal of the decision.
On February 18, 2005, Citizenship and Immigration Canada announced a new policy that prioritized the processing of all spousal applications and removed the requirement for in-land spouses to be in status when their application is submitted. That being said, it is always advised to remain in status when possible while in Canada.
This policy has opened Canada’s doors to spouses who are in Canada and whom are, for example, failed refugee claimants or people who forgot to extend their study, work or visitor visas.
To qualify under this policy, an applicant must be sponsored by a Canadian citizen or permanent resident who is their genuine spouse and with whom they cohabit.
There are a number of restrictions that will make a person ineligible for the program. For example, an applicant will not qualify if inadmissible to Canada for criminal, security or serious public health risks.
One of the most contentious issues stemming from this policy is the effect it will have on persons who are in the process of being removed from Canada. Filing an in-land spousal application will not always stop removal from Canada. But, if an applicant is removed from Canada prior to approval of an application, the applicant will be allowed to return to Canada upon approval.
In 2004, an estimated more than 40,000 spouses were reunified with their Canadian spouse through family-class applications. For the thousands still waiting in queue, the new policy also brings hope of quicker processing times and quicker reunification.
Ryan N. Rosenberg, BA, LLB, is an immigration lawyer with Larlee & Associates. Email him at rnrosenberg@larlee.com.
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