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!

House Arrest & Deportation

THANH TAM TRAN left Vietnam in 1989 and became a permanent resident of Canada.  Twenty-four years later he was convicted in British Columbia of producing marihuana and given a 12-month conditional sentence.  Such a sentence is imposed as a term of imprisonment, but one which, because of the relatively innocuous nature of the particular offender, may be served in the community on strict terms and conditions.  In popular parlance a person on conditional sentence is said to be under “house arrest” because they usually must remain in their house either around the clock or during certain specified hours.

Conditional sentences were introduced in 1995 in response to what was perceived to be the too-frequent imposition of jail sentences.They are only available where the sentence to be imposed is under two years, the crime committed does not have a minimum sentence and the sentencing judge is satisfied that community safety will not be threatened by the house arrest of the offender.  They are useful because the offender may be able to continue to work or otherwise provide for himself or his family while under sentence, or may attend school or medical appointments.  They also save the government a good deal of money by reducing the jail population.  Compliance is monitored, and if the offender breaches the sentence, there is a hearing, and he may be committed to jail for the balance of the term.

When the immigration authorities employed Mr. Tran’s conviction as a basis for referring him for deportation, he applied to the Federal Court to stop the process from going further.  He argued that, according to the terms of the law, his conditional sentence was not serious enough to warrant the termination of his permanent resident status and removal from Canada.  The central question for determination by the Court in his case was whether or not Mr. Tran’s sentence met the threshold for his deportation.

Under Canada’s immigration statute a permanent resident may be ordered deported if he has been convicted of a crime which drew a sentence of six months in jail or more, or for which a maximum sentence of ten years in jail or more might be imposed.  Was Mr. Tran’s 12-month conditional sentence such a sentence?

Justice O’Reilly of the Court found that it was not.  He concluded that, while a conditional sentence may in some circumstances be characterized as a term of imprisonment, the context of the characterization is critical.  Conditional sentences, he noted, were conceived for those offenders who do not require actual incarceration, and not for those who have been engaged in “serious criminality”, as contemplated under Canadian immigration law.  The threshold in the immigration statute relates to actual time in prison, not time spent under house arrest, the Court observed.

Also addressed in the decision was the issue of the maximum possible sentence for the offence which the Court found should be assessed as of the date of conviction, not the date of its referral to the immigration decision-maker.  Further, the Court found the Immigration Officer’s referral to be unreasonable because it relied on arrests and charges as evidence of Mr. Tran’s ongoing criminal behaviour, although they were unproven allegations.

However the key aspect of this case going forward is the finding regarding conditional sentences.  If, as Justice O’Rielly found, they may not be described as terms of imprisonment, then those permanent residents sentenced to house arrest for periods of up to two years less a day may not be deportable.  Further, those already ordered deported for offences for which conditional sentences were imposed or who have been sponsored by a spouse but found inadmissible in similar circumstances may have a remedy to challenge that deportation that could include the right of appeal to the Immigration and Refugee Board (Immigration Appeal Division).

It should be noted that the Federal Court did certify two questions for the appeal of its decision respecting Mr. Tran, one on the conditional sentence issue and the other on retroactivity.   In the circumstances these issues cannot be said to be resolved and caution should still be exercised in making submissions respecting the sentencing of permanent residents.

You can review Mr. Tran’s case online here.

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.

Same-Sex Spousal Sponsorships

IN CANADA one can sponsor one’s same-sex partner to become a permanent resident.  Of course, in many parts of the world it is not possible to marry a same-sex partner, or even for partners to live together openly, and so marriage or common-law union cannot be the foundation for such a sponsorship.  Instead, the sponsorship often proceeds upon the basis that the parties are conjugal partners.  Before immigration status can be conferred in such a case, however, it must be established that the relationship of the sponsor and the applicant meets the definition of conjugal partnership, and that’s where Alain Morel and Rui Guo come in.

When their case was before the Federal Court of Canada, Mr. Morel was a 59-year-old Canadian man and Mr. Guo a 27-year-old citizen of the People’s Republic of China, and they had been in a relationship for about six years.  However when their same-sex, conjugal-partner sponsorship application was filed,  the two men had known each other for only about two years, and they had only been  physically together during one visit of ten days duration.  Still, they had been in daily communication with each other by phone or other means, their relationship was exclusive, and Mr. Morel had sent Mr. Guo money and made him the beneficiary of his will.   During the next four years the relationship continued and deepened, but it is important to note that the question before the visa officer, then before the Immigration and Refugee Board that heard the appeal of the visa officer’s decision, and then before the Federal Court judge that judicially reviewed the Board’s decision, was whether the relationship met the conjugal-partner standard at the time the sponsorship application was filed.
According to the Supreme Court of Canada, as it expressed itself in the case of M. v. H. [1999] 2 SCR 3, the generally accepted characteristics of a conjugal relationship are:
  • SHARED SHELTER: whether the partners live together in the same home as a couple;
  • SEXUAL AND PERSONAL BEHAVIOUR: whether the partners’ relationship is exclusive, committed, and evidenced by emotional, intellectual, and physical interaction;
  • SERVICES: whether household and other family-type responsibilities are shared, and whether there is evidence of mutual assistance, especially in time of need;
  • SOCIAL ACTIVITIES: whether the partners share time together or participate in leisure activities together, and whether they have relationships or interaction with each other’s respective families;
  • ECONOMIC SUPPORT: whether the partners are financially interdependent or dependent, and whether they have, to some extent, joined their financial affairs or arranged them to reflect their ongoing relationship;
  • CHILDREN: the partners’ attitude and conduct towards children; and
  • SOCIETAL PERCEPTION OF THE COUPLE: whether the partners are treated or perceived by the community as a couple.
The Visa Officer refused the application because: (1) she was not satisfied that a conjugal relationship existed between the two men because their relationship was not marriage-like; and (2) their relationship was entered into primarily for the purpose of acquiring status or privilege under immigration law.  The spousal sponsorship  application therefore failed, the sponsorship was refused, the application fee was lost, and Mr. Guo remained in China.
Upon the appeal of Mr. Morel, the Immigration Appeal Division of the Immigration and Refugee Board reversed that decision, however, because the panel concluded that Mr. Morel and Mr. Guo had the characteristics of conjugal partners, because they were in daily contact, gave spontaneous and direct testimony, filed extensive supporting documentation, and established that their relationship was exclusive and somewhat financially interdependent.  The implication of such a reversal is usually that the sponsorship refusal is set aside, there is a finding registered that the relationship meets the definition of conjugal partnership, and then the application is returned to the visa post overseas for final processing.  At this point, it looked like Mr. Morel and Mr. Guo might be together in Canada a few months hence.
However, the Minister of Citizenship and Immigration was not content with the Board’s decision and asked the Federal Court of Canada to review it.  Mr. Justice Lemieux did so, determining:
  • email and telephone exchanges, a money transfer and a ten-day period of cohabitation were not enough to establish a conjugal relationship;
  • it was wrong to conclude that Mr. Morel and Mr. Guo shared a life together through a computer;
  • it was not the intention of Mr. Morel alone that was important, but rather the intention of both men; and
  • the panel had neglected to consider some of the observations of the Visa Officer.

The court allowed the application for judicial review, set aside the decision of the Immigration and Refugee Board, and sent it back to the Board to be redetermined by a different panel.  The long journey of Mr. Morel and Mr. Guo, who had hoped to be living together in Canada years before, was to continue.

What lesson can we learn from this case?  Hindsight, as they say, is very clear.  In retrospect, Mr. Morel and Mr. Guo might have waited to develop more evidence that their relationship was marriage-like before filing the sponsorship application or, in the alternative, invested more heavily in establishing a physical connection.  This might have happened had Mr. Morel traveled to China more than once before the application was filed, or had Mr. Guo come to Canada as a visitor, or at least tried to do so.  To avoid the sorts of complications they experienced, it is always desirable to carefully assess the prospects for success before filing, to fully document the relationship sought to be established,  to file comprehensive written submissions, and to thoroughly prepare for the visa office interview.  If you do the work up front, you may avoid a lot of additional work and expense later.

To read the full case, the citation for which is Canada (Minister of Citizenship and Immigration) v. Morel 2012 FC 1404, click here.