Winning Your Sponsorship Appeal

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.