As an international student, it is common to be in Canada studying full-time on a study permit and separated from a spouse. It may have been recommended to you as an initial part of your study permit to better your chances. You may have met the spouse during your exchange or summer back home and decided to get married. You may have met them in Canada while they were here.

How do you now bring that spouse into Canada while you still hold temporary status here?

Portrait of Will Tao

Will Tao, a contributing editor at StudentImmigration.ca, is one of Canada’s leading immigration lawyers.

What Type of Permit Does Your Spouse Want?

The type of permit will depend on what your spouse wants to do in Canada.

Visitor (Short and Long-Term)

They may wish to only see you temporarily, as a visitor. Depending on what country they are from, this may involve obtaining a visa, an electronic travel authorization, or neither depending on the requirements.

They may wish to stay with you in Canada for the duration of your studies but not work. A visitor record, requested at the port of entry or through an inland application later on, may help provide that support.

Or they may arrive as a visitor and later decide they want to stay and study or work and apply for the appropriate permit from inside Canada.

Student

It is possible that they too may wish to study. Family members of someone with a valid study permit are eligible for an open study permit, under Section 219 (2) of the Immigration and Refugee Protection Regulations. However, your spouse will still need to convince immigration that they genuinely want to study and that they are willing to leave when your studies are completed. The spousal study permit will be issued for the same length of time as your study permit.

Alternatively, you may choose to apply for a study permit for both yourself and your spouse at the time of your initial study permit application.

Worker

The spouse of a full-time student enrolled in an eligible program has access to an open work permit based on an exemption to the Labour Market Impact Assessment found under R.205(c)(ii) of the Immigration and Refugee Protection Regulations. Under C42, the spouse will be given an open work permit allowing them to work for the duration of the student’s study permit.

It is important to note that your ability as an international student to support your spouse will be a primary consideration if they apply to come to Canada or remain in Canada with an open study permit or work permit.  You must be a full-time student (as defined by your institution). You have to go to school that is eligible. The IRCC website, updated most recently on 24 October 2017, clarifies in a blue highlighted section that certain programs will not be eligible due to their nature as a private, non-degree conferring institution. As the language now reflects the same language as the Post Graduate Work Permit eligibility, expect some spouses to lose eligibility where previously they had been granted permits.

Will the Intention Change?

Your spouse may enter Canada temporarily as a visitor (subject, of course, to a border officer’s assessment of his or her intention) and then together you may decide on a longer-term plan.

A spouse of a Canadian study permit holder has the ability under Section 199(e) of the Immigration and Refugee Protections Regulations to make an in-Canada application for a work permit.

A spouse of a Canadian study permit holder has the ability under Section 215 (2)(a) of the Immigration and Refugee Protections Regulations to make an in-Canada application for a study permit.

This would allow them to switch their status from visitor to student, worker, and so forth. A spouse from a visa requiring country will be subject to more substantial front-end screening over their initial intentions.

Biggest Benefit – Setting Up Potential Permanent Residence Pathways

A spouse who has the opportunity to switch fluidly between worker and student can act as a key player in the pathway to permanent residence for the whole family, particularly with respect to economic immigration under Express Entry. The ability to get a much-coveted open work permit allows the spouse to work for different employers. in many cases, one year of skilled Canadian work experience may be enough to be selected for permanent residence. It is feasible that even by the middle of a student’s program – even prior to graduating and applying for a post-graduate work permit – a student could become a permanent resident of Canada as part of his or her spouse’s application.

It is also possible for the accompanying spouse to seek their own study permit to complete studies and utilize this as the basis for the study permit holding spouse to then switch to worker. This may be a good substitution, particularly if eligibility for a post-graduate work permit may have been lost by the study permit holding spouse, for example, a gap in their full-time studies.

Biggest Challenge – Establishing Bona Fide Temporary Residence and Ties to Home Country

On the flipside, these benefits do give rise to concerns over the bona fide’s of either the student’s application or the spouse’s accompanying application.  For example, there is a possibility of refusal on an initial study permit application where it appears the international student’s study permit application is primarily being made to facilitate a spouse’s work permit. This is particularly true in the case of mature students from countries that may not be as economically affluent as Canada.

While there are dual intention provisions [Section 22(2) of the Immigration and Refugee Protection Act) in immigration law that allow an individual to seek a temporary visitor visa, study permit, or work permit while having an intention to become a permanent resident – any temporary application claimed under this provision is viewed with more skepticism where a permanent resident application has not yet been filed or eligibility for permanent residence has not yet been established.

Furthermore, two spouses who are outside of their home country or countries are more likely to run into issues about whether they are truly tied to their home country. As a result, they may not be able to provide enough evidence on the front end to demonstrate that they will leave Canada at the end of their stay.

Bona-Fide Relationships

One area receiving increasing scrutiny is the genuine nature of relationships between international students and their spouses and whether marriages are motivated by immigration purposes. The media has picked up a couple of stories overseas of international students being used to facilitate immigration schemes for individuals abroad. I believe this is largely an isolated situation for applicants from most parts of the world.

However, it may be useful, especially in the case of a recent marriage, to attach letters of explanation to provide a brief chronology and supporting evidence showing the marriage was genuine and not for the purposes of facilitating immigration benefits.

Relationships in Canada – Meeting another Temporary Resident in Canada

With so many international students attending school together, it is not uncommon for two temporary residents to begin living together as boyfriend, girlfriend, and eventually even make the decision to marry.

One of the things that is important is ensuring that common-law relationship thresholds are understood and disclosed to government officials and border official when required. Immigration law [specifically section 125(1)(d) of the Immigration and Refugee Protection Act] prohibits the sponsorship of previously undeclared spouses on a sponsorship application. There have been more than a few heartbreaking cases where one of a boyfriend and girlfriend couple applied for permanent residency on their own accord, forgetting to indicate the existing or previously existing common-law relationship, leading to a subsequently bar from sponsoring their significant other.

As discussed, married couples do have significant benefits in navigating Canadian immigration together and supporting each other to achieve their goals. However, timing, planning and sufficient evidence are all very important considerations.

 

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