If a person who is a Canadian citizen or permanent resident has a spouse or common-law partner who is out of status in Canada (colloquially known as illegal), they can still be sponsored using the In-Canada Sponsorship Class: As long as both partners meets the criteria for Sponsorship, the application can overcome immigration status issues. Immigration Policy facilitates family reunification despite lack of status.
Public Policy Under A25(1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class
To facilitate family reunification, Immigration policies allows processing of spouses and common-law partners of citizens and permanent residents in Canada who do not have legal immigration status.
Lack of status
For the purposes of the public policy only, persons with a “lack of status” refers to those in the following situations:
- 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 valid passport or travel document (provided valid documents are acquired by the time CIC seeks to grant permanent residence).
“Lack of status” does not refer to any other inadmissibilities including:
- failure to obtain permission to enter Canada after being deported
- persons who have entered Canada with a fraudulent or improperly obtained passport, travel document or visa and who have used the document for misrepresentation under IRPA.
- persons under removal orders or facing enforcement proceedings for reasons other than the above-noted lack of status reasons.
In order to be granted permanent residence under the In-Canada Class, the applicant must meet eligibility requirements: The applicant must be included in a spousal or common-law sponsorship application, be cohabiting with their sponsor in Canada, have valid identity documents, and pass medical, security, and criminality checks. The applicant must also prove that their relationship is genuine and not a marriage of convenience.
Applicants for spousal sponsorship under the In-Canada Class become removable from Canada if the sponsorship application is refused: If their application is refused, they can be removed from Canada for being out of status. Therefore, it is very important for the applicants to submit a complete and error-free application, and to get a new passport if their current one is expired
Partners who are legally married are equal to common-law partners: There is no difference between married and common-law partners for immigration purposes. However, the applicants must meet the legal definition of common-law partnership, which means living together in a conjugal relationship for at least one year. The applicants must provide evidence of their cohabitation and relationship history.
A lack of status inside Canada does not only mean having overstayed as a visitor or past the expiry date of a work permit: The definition of out of status in Canada includes not only overstaying a visa, visitor record, work permit, or study permit, but also working or studying without authorization, or entering Canada without the required visa or document. The applicants must have a valid passport to become a permanent resident.
Other sources of inadmissibility are not covered by this public policy and applicants who are inadmissible for reasons other than a lack of status may be removed from Canada at any time: It is important to note that the public policy that prevents the removal of out of status applicants under Inland Sponsorship does not apply to other reasons for inadmissibility, such as criminality, security, health, or human rights violations. The applicants who are inadmissible for other reasons may need a Temporary Resident Permit to stay in Canada.
This policy is unique to Spousal Sponsorships as generally speaking, almost every immigration program in Canada will not let applicants for permanent residence finalize their application and become a PR from inside Canada unless they are currently in valid status. The general rule for most permanent residence applications is that the Applicant must have legal status in Canada in order to finalize their application. The exceptions are the In-Canada Class spousal sponsorship and the Humanitarian and Compassionate grounds PR applications, which allow out of status applicants to become permanent residents without leaving Canada.
Applicants who are eligible for this public policy will not be removed from Canada once their inland spousal sponsorship application has gone into processing: An important benefit of the public policy is that it defers the removal of out of status applicants under Inland Sponsorship. The applicants will not be deported from Canada as long as their application is in process. However, it is important to note that the defferal is temporary and sponsorship applications can be delayed.
Contact us if you are out of status but in a relationship with a Canadian citizen or permanent resident. MM Immigration law specialized in regularizing status of individuals whose status has lapsed.
Disclaimer: This article is for general information purposes only and it is not intended as legal advice. The information is not a substitute for professional legal advice, and it may not be appropriate for you. Do not rely solely on this blog. Always do your own research and due diligence. Immigration laws and regulations can change over time. It is important to consult with a qualified immigration lawyer if you are unsure how to proceed.