Morley Law Office

Canadian Immigration Lawyer Kingston

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In-Canada Spousal Work Permit Policy

SINCE 2004, IF A SPOUSE or common-law partner was sponsored for permanent residency from inside Canada, he or she could apply for an open work permit by filing an application to change the conditions of the visit before the expiry of status.  Such an application was put into the same envelope as the sponsorship application.  The resulting work permit would only be issued once the application for permanent residence was “approved in principle”, which at one point happened about six months after filing, but which more recently was more likely to occur after twelve months or longer.

It is and has been a good thing that there is an option for foreign nationals who are married to a Canadian and who are living in Canada allowing them to apply for permanent residency from within the country.  It is also a good thing that they can get a work permit while they are here.  However, a year is a long time for most foreign nationals to wait for the authority to work, and the delay creates hardship for couples who are in the meantime without the employment income of the foreign national.

It seems likely it was because of the lengthening processing time that Canada Immigration unexpectedly announced on December 22, 2014 that spouses and common-law partners who met specified criteria could be issued work permits earlier in the process – before the approval in principle.  According to the announcement, which is available here, to be eligible the applicant foreign national spouse must:

  1. Have filed an in-Canada spousal sponsorship and permanent residency application;
  2. File the appropriate application form for the work permit;
  3. In some cases, meet medical requirements; and
  4. Pay the fee.

If these things are done the foreign national will get an open work permit, that is, one that allows the foreign national to be employed at any job in Canada for which an employer will hire him or her.  The promise is that the work permit will be issued within four months of receipt of the application.

This is a welcome development that tips the balance in the direction of applying for permanent residency from within Canada, as opposed to outside of Canada.  However, for those who were not in Canada at the time the announcement was made there remains a nagging issue: what does a foreign national spouse say to border officials about their intentions when they arrive at the Canadian border, or when they land at a Canadian airport?

Upon entry one must answer the examining officer’s questions about the reasons for the entry honestly.  To say that one is coming to Canada only to visit is not an honest and complete answer if one is coming into the country to live with one’s spouse and to apply for permanent residency and a work permit.  These parts of the plan should be declared if one wishes to avoid being challenged for having misrepresented one’s circumstances.

The problem is that once the complete plan is declared there is a serious risk the foreign national will not be admitted to Canada, as his or her entry might be seen as an attempt to enter Canada to live permanently without a visa that provides the authority to do that.  In the experience of people I have spoken with, arriving at the border or airport with all of one’s possessions in tow, ready to make a life in Canada with one’s Canadian spouse is generally not positively received by Canada Border Service Agency Officers.  Even without a lot of extra luggage, border officers are often suspicious of the intentions of those entering Canada to be with a fiancee or even a girlfriend.

The law does provide that one may have “dual intent” upon entry, that is, an intention to live in Canada permanently if ultimately authorized to do so AND also the intent to leave at the end of the visit if not authorized to live here permanently.  However it is an open question as to in which circumstances the officers will recognize the dual intent and permit this entry and which they will not.

Without some clarity on this issue, it is difficult for couples to plan for their life together.  Does a foreign national pack up his or her things and bring them to the border or airport, declare to the examining officer that he intends to enter Canada to live with or perhaps even marry his spouse, and then apply for permanent residency?  Will the officer admit him or her in these circumstances?

After more than 25 years of practicing as an immigration lawyer, I have heard many stories about problems people have encountered upon entry to Canada, and I am sceptical.  I would be interested to hear about your experiences!

For better or for worse

The Case of Jean Rosalie Morales Laomoc

HERE’S A RIDDLE FOR YOU: when is a marriage not a marriage?  An answer that you may not anticipate is, “when it is assessed by Canada Immigration”.

The reason for this may be found in the law, and in the restrictive and guarded approach to its implementation taken by Immigration Officers whose job it is to remember that, even though a Canadian permanent resident or citizen may sponsor his or her spouse, there are exceptions to that rule.

The fact is that, even though a marriage may be binding legally, morally and in church, Canada Immigration may not be satisfied that it is legitimate for its purposes.  Immigration Officers are required to apply the law, and the Immigration and Refugee Protection Regulations require that a marriage that is to be the subject of a sponsorship must be “genuine” and must not have been “entered into primarily for the purpose of acquiring and status” here.

Many spousal sponsorships have foundered on the rocks of those regulatory provisions.  Jean Rosalie Morales Laomoc, for instance, discovered to her chagrin that love, romance, marriage, five years of cohabitation and a sponsorship application package were not enough for the immigration authorities, even though she tossed in a sheaf of supporting documents for good measure.  Her application for sponsorship was refused.

Recently, upon appeal to the Federal Court, the Immigration Officer’s decision was reversed.  In his decision Mr. Justice Campbell states:

In my opinion, given the volume and apparent relevance of the documentary evidence to the issues under consideration, the Officer was required to carefully consider the evidence and to make findings with respect to its relevance and weight.  I find that the Officer’s apparent failure to perform this requirement renders the decision unreasonable.

So, in the end, in this case at least, the application for sponsorship and landing was sent back to a new immigration officer for reconsideration and hopefully, but not necessarily, for the issuance of a permanent resident visa.

Left unsaid by the Court, however, are all the legal costs and the one-year delay (so far) that the couple has experienced in returning to the starting point of filing the application in the first place.  These might have been avoided if comprehensive legal submissions were filed at the outset, or if Jean and her spouse were better prepared for the immigration interview.

This case reminds us that an ounce of professional legal advice surely is worth a pound of doing it yourself.  Getting the job done right in the first place spares no end of grief.  If you would like to read the case, you can find it here.

It’s a Bird, it’s a Plane, it’s Super Visa!

IF YOUR MOTHER lives in Kenya, your father in Argentina, or your grandparents in Tanzania, you could expect to  wait over eight years to sponsor them to immigrate to Canada after filing an application to do so.  In the meantime, getting them here for visits with their children or grandchildren could be a serious challenge.

On November 4, 2011 the Government of Canada announced the creation of a new program to address the problem it calls Phase I of the Action Plan for Faster Family Reunification.  The new program, which was authorized as a ministerial instruction under subsection 87.3(6) of the Immigration and Refugee Protection Act,  facilitates the coming to Canada of parents and grandparents of Canadian citizens and permanent residents.If the situation overseas is unstable, your elderly relatives infirm, or your children in need of  the love of a grandparent, processing times like these can seem interminable.

The problem, according to the Government, is that there are some 165,000 applications for the sponsorship of parents and grandparents waiting in the queue for permanent residence, with another almost 40,000 applications being added to that number every year.  Given limited manpower resources to process applications, and the practice of giving priority to the applications of spouses, dependent children and skilled workers, wait times for the processing of the applications of parents and grandparents threatens to become “completely unmanageable”.The solution implemented by the Government has four parts:

  1. It will increase the number of parents and grandparents admitted to Canada from 15,500 (2010) to 25,000 (2012);
  2. It has introduced a new “Parent and Grandparent Super Visa”;
  3. It has committed to consultations on the design of a sustainable program; and
  4. It has declared an immediate 24-month moratorium on the filing of new sponsorship applications for parents and grandparents.

There is some excitement about the new “Super Visa”, which comes into being December 1, 2011.  It is in effect a multiple-entry visitor’s visa like those currently in existence, except that instead of allowing a six-month visit, it authorizes the visitor to remain in Canada for up to 24 months at a time during its ten-year term.  The Government says such visas will be issued quickly, so that parents and grandparents can join their families here within eight weeks, rather than the eight years it was formerly taking to process visas through some posts.  Of course now they will be coming as visitors, whereas before they came as permanent residents.

To obtain a Super Visa a parent or grandparent must apply from outside the country at a Visa office.  He or she must meet the usual visitor requirements, which includes demonstrating a willingness and capacity to return to their country of origin when the visit is over.  Now, however, they must also:

  • undergo a medical examination, unless they come from an exempt country;
  • demonstrate that they have purchased private Canadian medical insurance; and
  • provide a written commitment of financial support from a child or grandchild in Canada who meets a minimum income threshold.

Presumably applicants will also have to pay the processing fee for a multiple-entry visitor visa, which is currently $150.00.

Those applications for the landing of parents and grandparents which are outstanding will continue to be processed, as long as they are complete and were received  by November 4, 2011.  Those received after November 4 will be returned to the applicant.   Outstanding applications can be withdrawn, although only a partial refund of fees paid will be made if processing of the application has begun.  It is no longer possible to ask for humanitarian and compassionate consideration for the processing of overseas sponsorship applications for parents and grandparents.

We have not seen the fine print for the Super Visa, and so it is not possible to assess its merits authoritatively.  At first blush, however, there appear to be many positives.

Previously many parents and grandparents were denied visitor visas.  Presumably now the Super Visa, created especially for them, will be more liberally granted.

Formerly those visiting Canada could stay for only six months at a time.  Longer stays required applications for extension of the term of the visit, which required the filing of an application and the paying of a fee.  Now obtaining a visa will be an issue requiring attention only once a decade, and there will not be so much travel back and forth to Canada.

The Super Visa will allow parents and grandparents to spend extended time with their Canadian family, but not at the expense of the Canadian taxpayer.

There are some issues, however.  A medical exam must be completed, and the implications for failing the exam may be severe if it means parents and grandparents cannot come to Canada.

Health insurance may not be available to all parents and grandparents.  Those who can get it may be able to come to Canada and those who cannot may not be able to do so.  Those who come as permanent residents will have access to government health insurance, while those who are visitors will have to pay for their own.

Of course, some citizens or permanent residents may not financially qualify to support their parents or grandparents.  If they cannot do so, will members of their family be able to come as regular visitors?   If not, will a two-tiered system develop, in which some in Canada can bring their parents here, and some cannot?  From the point of view of the children and grandchildren, it will be difficult to justify such a disparity.

Parents and grandparents who come to Canada on a Super Visa for 24 months, particularly if they come back for a second or third such lengthy visit, will presumably lose their connection with their country of origin if they are here for such an extended period.  If their property back home is sold, what will this mean for future visits to Canada?  Typically, the fewer ties one has with one’s home country, the more suspicious border authorities are about admitting visitors to Canada.  Will this be a problem in subsequent entries, or in obtaining a second Super Visa?

Also, will extended visits to Canada have tax implications for Super Visa holders?

Implementation of the Action Plan will cause more parents and grandparents to be admitted to Canada, but only from the backlog inventory of current applications.  It is important to note that, according to the Government’s projections, this increase comes at the expense of business class immigration, which will be reduced by about 3,500; live-in caregivers, the numbers of whom will fall by 3,600; and spouses, 4,000 fewer of whom are expected to be admitted to Canada.

Elder parents and grandparents can provide Canadian and permanent resident children with a rich cultural education, with childcare and with an nurturing extended family environment.  They can assist the parents of these children to realize their employment ambitions or assist them in their family business.  They bring with them to Canada their financial resources, but more importantly, they bring their culture, their affection and their wisdom.  They can make an important contribution to the country.  If Super Visas facilitate this, they will be a welcome initiative indeed.

If you need assistance in obtaining a Super Visa, please let me know.  Please note that there may be other ways for parents or grandparents to come to Canada, if a Super Visa is not available.