Portrait of Will Tao

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

“I am an International Student. My significant other is a Canadian citizen/permanent resident. Should I seek immigration as a sponsored spouse/common-Law partner?”

In my practice and in speaking to several others, there has been an uptake in the question of whether international students should apply on their own or with the support of a Canadian spouse or permanent resident, and when best to time the application. Many of these questions are coming up in the context of international students who are in relatively new or undeveloped relationships with immigration deadlines months to years away.

This is increasingly relevant as some immigration commentators are making a point of blaming international students for entering into marriages for convenience. It is both harmful and a deep oversimplification to blame marriage fraud solely and specifically on the heads of Canadian international students.  There is no doubt that international students, due to their emotional and financial vulnerability, are susceptible to those looking to take advantage of marriage fraud. Unfortunately, greater public scrutiny is likely to lead government authorities to also take a closer look at all international student relationships.

The situation is complicated for international students. One common scenario is that international students may feel pressure from their Canadian partners (often boyfriends and girlfriends at this stage) to marry or to enter into a common-law relationship. The Canadian citizen/permanent resident may suggest that marriage or common-law partnership will allow the student to stay in Canada and guarantee them status. But it isn’t that simple.

Possible Consequences of a Pre-Mature or Poorly Timed Spousal Sponsorship

 

  1. Entering into a relationship too early – leading to relationship breakdown later on

Relationships break down and, from my observation, relationships involving newer immigrants probably break down at a higher rate. This has particularly negative consequences for an international student who has been sponsored by a Canadian spouse or common-law partner.

A sponsor can withdraw the sponsorship application at any time prior to the applicant receiving permanent resident. Depending on the manner in which the applicant maintained their status in Canada, they may be able to stay in Canada until the expiry of their study or work permit , but may face challenges extending their status beyond that period given the failure of the previous sponsorship. It is very important that the applicant (i.e international student) maintain their temporary resident status and, if possible, preserve their own ability to apply for permanent residence as an economic immigrant.

Prior to this summer, couples were required to stay together for two years after sponsorship.  That rule was changed after critics said it made it difficult for immigrant spouses to escape abusive relationships. However, now couples that break up are being investigated for misrepresentation. I have also heard from several individuals that the end of the conditional permanent residency rule has correlated to an increase in Canadian sponsors who threaten to accuse former or estranged immigrant spouses of misrepresentation.

Misrepresentation does not have a specific window of time attached to it. It can be years and even decades later when misrepresentation proceedings are launched, either through the investigation of Immigration, Refugees and Citizenship Canada or by the reporting of an unsavory spouse or family member. Often times the applicant may be in a defensive position against a former or unsavory spouse who has access to resources and witnesses beyond the reach of the applicant. The consequences of misrepresentation are extreme and can include losing permanent resident status and even citizenship.

There is also the issue of the undertaking. A Canadian sponsor has a three-year undertaking during which time they are responsible for their spouse’s reliance of financial help and social assistance, regardless of whether the relationship has broken down.

Finally, there is the issue of the five-year bar. Some international students may not realize there is also a five-year bar on an applicant (individual who has been sponsored for permanent residence as a spouse/common-law or conjugal partner) being a sponsor themselves. This means that if the relationship breaks down, the applicant may have limitations on whom they can support through the immigration process as a new sponsored spouse.

  1. The International Student will abandon their own permanent resident pathway

One of the major consequences of entering into a sponsorship arrangement is often the applicant/international student abandoning their own permanent resident pathway. Commonly this occurs when the international student decides not to pursue a post-graduate work permit and instead rely on an open work permit or abandon studies or work while waiting for the sponsorship to be processed. Doing so comes with severe risks. Many times, unbeknownst to the applicant and sponsor in a bona fide relationships, mistakes or errors lead to a delay in processing or even the return of an application. This then can affect the status of the individual when applying, which can snowball into future delays or even jeopardize the applicant’s ability to stay in Canada during processing. For applications like the inside-Canada sponsorship application (as discussed below), separation can be fatal to an application. Many times, both for preserving the economic immigration pathway and for the development of the relationship, waiting a few more years for a relationship to organically develop to the point of marriage can be the most beneficial solution.

  1. Pursuing a bona-fide sponsorship application but choosing the wrong category

My suggestion for international students in a bona-fide relationship facing the decision between whether to pursue the inside-Canada process or the outside Canada process is to think about the long-term rather than the short-term consequences of the decision. Many international students who are already in Canada will gravitate towards filing an in-Canada spousal sponsorship due to wanting to stay in Canada. However, the fact that they hold a study permit would better facilitate an outside Canada application, given they already hold the ability to stay in Canada.

The consequences of incorrectly pursuing an in-Canada application may be heavy. First, the processing times for inside Canada applications are longer compared to many visa offices abroad. For many visas offices, an entire outside Canada application can be finalized in less than six months. Furthermore, if the applicant has legal status in Canada for a year or more (by virtue of their study permits), IRCC may decide to have the application processed in Ottawa, which historically has provided even faster processing times than most outside Canada visa offices.

Second, there is the issue of abandoning appeal rights. A sponsor for an in-Canada sponsorship application does not have the right to appeal the refusal. Any deficiencies in the application or in an interview can lead a refusal that may be extremely difficult to overcome in the future. Third, in an inside Canada application there are limitations on the ability of the applicant and Sponsor to travel outside Canada. Periods of extended separation, for example due to a family emergency back in the applicant’s home country, may be enough to lead to the refusal of the application. Again, the law is silent on a permissible gap or separation and officers are given some discretion in deciding whether the applicant is eligible to be sponsored inside Canada. All of this does not even take into account the fact that the Sponsor themselves may require extensive travel and work outside Canada that can also invalidate an in-Canada spousal sponsorship.

While there are indeed factors that support filing an in-Canada sponsorship application, I find that international students are often unaware of the pros, cons, and ultimately, the consequences.

  1. Not having enough evidence to establish a genuine relationship that is not primarily for immigration purposes

Even married and common-law couples with the right to appeal may face challenges with establishing evidence of a genuine relationship that is not primarily for immigration purposes. The legal test is conjunctive, meaning that the applicant and sponsor have the burden of proving both of these, on a balance of probabilities. Often times, genuineness is challenged on grounds that the two individuals have not had ample time to develop a genuine relationship and that there is no enough support (from family and friends) to substantiate the genuineness of the relationship. In many cases, the failure at the first step negates the need to look at the second part of the purpose of the relationship. It is even possible, and has been applied in cases where children were born, that the relationship was genuine but the primary purpose of the relationship was to facilitate immigration. An international student who has been dating for two or three months and has a secret or private wedding may face some scrutiny on these elements.

Furthermore, the concept of common-law in immigration often confuses international students. IRCC has some good materials, albeit somewhat hidden in different manuals, that sets out the requirement . A couple that merely lives together for one year without sharing joint accounts, joint rental leases, and a mutual dependence on each other may face challenges in meeting the statutory requirements for common-law. Furthermore, gaps in cohabitation, particularly where they are several months in length, could frustrate the calculation of the one year period of living together under the same roof.

Conclusion

These are just a few of the many issues that can affect an international student deciding when to apply to be sponsored by a Canadian spouse or common-law partner. In a future article, I will look at the same issue affecting two international students who are looking to navigate the immigration system together. Ultimately, I return to the start: a relationship that is allowed to grow organically will work within Canadian immigration, but a relationship built for immigration will generally either breakdown as a result of immigration or be hampered by immigration.

 

 

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