416-599-3888
416-593-1352
-
Other Issues in Sponsorship
In this article I will deal with a few common pitfalls encountered in sponsorship applications. As it may be recalled, the process involves two steps: 1. consideration of the sponsor's eligibility to sponsor someone; and 2. consideration of the sponsored person's eligibility to be sponsored.
i. Income of Sponsor
With respect to required income, it is the gross income of the sponsor and the sponsor's spouse (only if the spouse is a permanent resident or citizen of Canada). It should be kept in mind that immigration sometimes asks for LICO compliance not just at the start of an application, but also before final approval; if the sponsor's income has dropped during the processing of the sponsorship, they could face rejection should new financials be required and they show non-compliance with the required LICO.
With respect to sponsorship of a spouse, LICO is not relevant according to the Immigration Act and Immigration Regulations. However, if the sponsor is on certain kinds of public assistance and/or has no form of savings and/or income, immigration may conclude that the person being sponsored will end up on welfare and/or other public assistance; in such cases, the officer is likely to reject the sponsorship application.
In some cases, Immigration is refusing spousal sponsorships where despite the sponsor having sufficient income, the sponsor’s spouse appears to have no skill set that would allow the sponsor’s spouse to financially survive, and/or where there is a suspicion the sponsored spouse would require welfare and/or public assistance. Proper guidance from a lawyer in such cases is critical to avoid refusal.
With respect to sponsorship of a parent or both parents, LICO is relevant. In addition, while all persons being sponsored must pass a medical, it becomes even more important a consideration for parents. Often the parent is in their late-60's or older and face one or more medical conditions. Usually the conditions are not seen as serious but in some cases it could lead to medical inadmissibility. In such cases, appeal is often the only recourse.
With respect to multiple sponsorships, often the sponsor forgets to include all prior persons he/she has sponsored, and still has an undertaking in effect, or is in the process of sponsoring. For calculation of LICO this is crucial for a successful outcome.
ii. Common Law & Conjugal Partner Category
With respect to fiancé sponsorship, this category was eliminated by the new June 28, 2002 Immigration and Refugee Protection Act and its Regulations. A new Conjugal partner category was created to fit persons in this category. A Common Law partner category was also redefined. It has often been assumed that Common Law or Conjugal Partner applications would receive the same priority processing as a spouse. However, in practice, such cases tend to be more complicated and visa officers tend to be less experienced with these categories. Whether to go by Common Law, or spousal or conjugal involves consideration of a multitude of factors, for which a lawyer’s advice should be sought prior making a determination as to which category best fits the Sponsor and Applicant.
iii. Sponsor’s Obligation
With respect to sponsorship in general, it must be remembered that the sponsor must sign a bond guaranteeing support for 20 years, unless it is a spouse in which case the undertaking is for 3 years. Prior June 28, 2002, the undertaking for spouses was 10 years but once the new Act and Regulations came into effect it was reduced to 3 years. Should anything go wrong in the relationship, and this is very important in respect to sponsorships, then the sponsor is on the hook (and the government will chase the sponsor) for any public assistance received by the person sponsored for the 3 or 10 year term of the sponsorship depending on whether it was a spouse or other person sponsored to Canada. Often the sponsor believes that they can be relieved of the obligation in the case of breakdown in relationship; this is not correct. Regardless of the reason of breakdown of relationship, the sponsor is only rarely relieved of the 3 or 10 year (as it may apply) obligation. Recently the provinces have been more aggressive in collecting from Sponsors amounts paid out under welfare and other government programs to the person who was sponsored that should have been the obligation of the Sponsor to provide for.
iv. Sponsoring other family members
With respect to sponsorship of others not listed above, only a spouse, common law partner or conjugal partner, parent or grandparent, or child below the age of 19 can be sponsored. In some cases, if the sponsor has no one else in Canada, they may be eligible to sponsor someone not in these above-mentioned categories. This category is misnamed the "last remaining relative" category in immigration literature but is misleading since it does not involve the last remaining relative abroad. However, LICO compliance will still be required. In the cases of adoption, compliance with family law may also be required in addition to the normal compliance with requirements as set out in the Immigration and Refugee Protection Act and its Regulations.
v. R117-9d: Non-disclosure of dependents:
A common problem that arrives at our office is the situation of an applicant who omitted intentionally or inadvertently, listing a child as a dependent. Often it is a result of bad advice and/or ignorance of the law. A dependent that is omitted and not medically examined at the time the Applicant is processed for immigration will result in the dependent being barred in the future from being sponsored by the applicant.
A common example is the case of an applicant being sponsored by a spouse. A child of the dependent is not listed at the time of the sponsorship. Later, the Applicant after immigrating to Canada seeks to bring the child to Canada. The application is refused under R117-9d, non-disclosure of a dependent.
Another common example is the case of an applicant coming to Canada as a skilled worker and omitting mention of a recent marriage in order to avoid delay of the skilled worker application. The applicant after landing tries to sponsor the recently married spouse. The application is refused under R117-9d, non-disclosure of dependent.
There are a myriad of examples of cases where dependents are not disclosed, either because the applicant had bad advice, lacked advice, and/or deliberately made a decision to omit mention of the dependent.
Fortunately, there are ways in many cases to resolve these omissions. The process can be lengthy and complex and sometimes costly. However, if the applicant seeks to re-unite with their dependent or dependents, there may be no choice. This could all be avoided with proper advice received at the start before the applicant makes an immigration application.
vi. Sponsor was sponsored to Canada, relationship breakdown, and then Sponsor sponsor’s new spouse:
A common problem that arrives at our office is the situation where a permanent resident who was sponsored to Canada as a spouse of a permanent resident or Canadian, then separates, divorces and then sponsors a new spouse or family member. In cases where this permanent resident, (who was sponsored to Canada as a spouse) separates from the sponsor soon after arrival, the permanent resident is often the target of a misrepresentation investigation when they later sponsor a spouse or family member. Often the separation soon after arrival is the result of a break down in the relationship as a result of abuse or conflicts in the personalities of the sponsor and the permanent resident that was not apparent until after they started living together. However, Immigration does not know this, and the result is a misrepresentation investigation where it is alleged by Immigration that the permanent resident never intended to live as a spouse of the sponsor and was therefore not in a genuine marriage at the time the permanent resident received their landing papers. In these cases, not only is there a lengthy delay in the spousal sponsorship application, but the sponsor’s own status is investigated, and the sponsor could face their own removal proceedings.
A similar situation involving investigation of the sponsor’s status can arise where the person sponsored (now the sponsor) is not sponsoring a new spouse but a family member, such as a parent. In fact, in the situation where the person sponsored soon after landing separates from the sponsor and thereafter divorces, an immigration investigation of the sponsored person’s status could arise where the sponsored person makes a PR Card renewal application and/or Citizenship Application.
These common problems could all be avoided with proper advice received at the start from an experienced immigration lawyer before the applicant makes an immigration application.
vii. Genuineness of Marriage:
Recently, Immigration has focused more and more on the genuineness of marriage as tested by what evidence of relationship exists prior the marriage. In cases where the relationship period is short and most of the evidence is after marriage, Immigration may question the bona fides of the marriage. The Immigration Appeal Division uses the same test and therefore it is difficult to appeal these refusals except on humanitarian grounds. Even then, these cases may face difficulty in succeeding. Unfortunately, in many of these cases, the couple only seek advice once Immigration raises the problem. Ideally, the couple should from the start seek out proper advice from an experienced immigration lawyer, even prior marriage, and especially before the Sponsor files an immigration application to bring the spouse.
Final Note:
Immigration authorities have become stricter in applying the sponsorship rules and regulations. As always, the prospective immigrant and/or his/her sponsor, should seek proper and honest legal advice in order that the prospective immigrant does not lose the opportunity to come to Canada.