CanadianImmigration:Presented by:

Rathika Vasavithasan & Swathi SekharParkdale Community Legal Services1266 Queen Street West416-531-2411, ext. 260/258

Overview of Presentation1. Who can sponsor?2. Who can be sponsored? 3. How to prove a relationship4. Inadmissibility: medical, security, criminal5. Financial Issues: undertaking and fees6. Processing times7. What if my application is refused?8. Where can I get more help and information?

Who Can Sponsor? Canadian citizen or permanent resident Must live in or intend to reside in Canada 18 years or older Financially eligible

Minimum necessary income Cannot be in receipt of social assistance for a

reason other than disability

Note: “intend to reside” when the immigrant visa is granted to your sponsoree (sponsors are usually in Canada)

SIZE OF THE FAMILY UNIT

MINIMUM NECESSARY INCOME

1 PERSON (THE SPONSOR) $ 22, 1712 PERSONS $27, 6013 PERSONS $33,9334 PERSONS $41, 1985 PERSONS $46,72726 PERSONS $52,6997 PERSONS $58,673More than 7 PERSONS, for each additional person add:

$5,974

CIC uses LICO to see if you have the “minimum necessary income” to sponsor

Financial Eligibility: Exceptions You do not have to meet the minimum

income requirements if you are sponsoring: A spouse, common-law partner or conjugal partner who

has no dependent children A spouse, common-law partner or conjugal partner who

has a dependent child who has no dependent children A dependent child who has no dependent children A person under 18 who you intend to adopt in Canada

BUT you still cannot be receiving social assistance (unless it is ODSP)

Note: spouse here means common-law and conjugal as well as married

Other Eligibility Requirements Cannot be in detention or subject to a removal

order Cannot have been convicted of a sexual

offence or a Criminal Code offence against any of your relatives or family members

Cannot be in default of any previous undertaking (more later)

Cannot be an un-discharged bankrupt

Criminal conviction exception: (unless pardoned or 5 years have passed since sentence completed)

“Completed your sentence” means that you have paid all fines, costs, surcharges, and made restitution orcompensation, and completed any order of probation, conditional sentence, and incarceration (which includes timeon parole and statutory release).

Default of previous undertaking = (a previous agreement to support a family member after they come to Canada), government loan agreement, or any support payments order by court)

Undischarged bankrupt = (a bankrupt person not given an ‘order of discharge’ which releases him/her from all current/provable debts)

Who Can be Sponsored? Partner: spouse,

common-law or conjugal

Dependant child Parents and

grandparents Family member of a

sponsored person, such as dependant child of spouse or parent

Most common categories are...

Note: The conjugal partner category exists for those people who are in exceptional circumstances beyond their control that prevent them from qualifying as either a spouse or a common-law partner

Who Can be Sponsored? (2) But sometimes also:

Orphaned brothers, sisters, nieces, nephews, and grandchildren who are unmarried and under 18

Children under 18 that you plan to adopt If no close family in Canada, and you don’t have

any relatives abroad whom you can sponsor as members of the family class, then you can sponsor one relative regardless of age (e.g. siblings, etc.)

Very difficult to sponsor family members other than spouse, child, grandchild, parentUnable to sponsor family members who were not included on your application for permanent residence

Sponsoring Your Partner: Spouse Spouse = married according to the law in the

country where the marriage took place. Must also be valid under Canadian law

E.g. same-sex partners can be sponsored as spouses if their marriage was legally recognized in the country where it took place

If you were married in Canada:You must have a marriage certificate issued by the province or territory where the marriage took place. If you were married outside Canada:The marriage must be valid under the law of the country where it took place and under Canadian law. A marriage performed in an embassy or consulate must comply with the law of the country where it took place, not the country of nationality of the embassy or consulate.

Common-law = lived together for an continuous 12 month period in a relationship that is like a marriage (depend on each other, permanent, exclusive)Short absences are okay (e.g. business trips)Need evidence that you have combined your households

Conjugal = marriage-like relationship for at least one year but you have been unable to live together due to exceptional circumstances- In most cases not able to marry partner

Note: If you apply to sponsor your common-law or conjugal partner and you marry one another while your application is being processed, you will have to start a new application to sponsor your spouseIf you sponsored a spouse, or a common-law or conjugal partner and that relationship ended, you have to wait until the sponsorship undertaking has ended before you can sponsor another spouse or another common-law or conjugal partner (this is 3 years for spouses)

Sponsoring your Partner: Common-Law Common-law = lived together for an

continuous 12 month period in a relationship that is like a marriage (depend on each other, permanent, exclusive)

Short absences are okay (e.g. business trips) Need evidence that you have combined your

households

Both marriage & common law relationships are defined by courts & legislation with reference to term ‘conjugal’. This can be confusing for sponsorship purposes because there are 3 categories of partners that can be sponsored: common law, spouse & conjugal. Conjugal is an adjective that describes all three relationships, and the conjugal category is used when legal requirements for spouse or common-law cannot be met.

Evidence may include:• Joint bank accounts and/or credit cards;• Joint ownership of residential property;• Joint residential leases;• Joint rental receipts;• Joint utilities accounts (electricity, gas, telephone);• Joint management of household expenditures;• Evidence of joint purchases, especially for household items;• Correspondence addressed to either or both parties at the same address;• Important documents of both parties show the same address, e.g., identification documents,driver’s licenses, insurance polices, etc.;• Shared responsibility for household management, household chores, etc.;• Evidence of children of one or both partners residing with the couple;• Telephone calls.OP 2 5.35

Once you’ve co-habited for a year, you may need to live apart at some point. This doesn’t break common-law status, but you must intend to resume cohabitation as soon as possible. The longer you live apart the more proof you have to offer in this respect (phone calls, etc).

Sponsoring your Partner: Conjugal

Conjugal = marriage-like relationship for at least one year but you have been unable to live together due to exceptional circumstances

In most cases not able to marry partner

Note: If you apply to sponsor your common-law or conjugal partner and you marry one another while your application is being processed, you will have to start a new application to sponsor your spouseIf you sponsored a spouse, or a common-law or conjugal partner and that relationship ended, you have to wait until the sponsorship undertaking has ended before you can sponsor another spouse or another common-law or conjugal partner (this is 3 years for spouses)

Conjugal relationship should at least be:mutual commitment to a shared life;• exclusive – cannot be in more than one conjugal relationship at a time;• intimate – commitment to sexual exclusivity;• interdependent – physically, emotionally, financially, socially;• permanent – long-term, genuine and continuing relationship;• present themselves as a couple;• regarded by others as a couple;• caring for children (if there are children).(OP 2 s. 5.25)

Sponsoring Your Dependent Child Biological or legally adopted child Under 22 and without a spouse or common-

law partner If your child is over 22 they must:

Be attending post-secondary school full-time since before the age of 22 and dependent financially on a parent

Be unable to provide for themselves due to a physical or mental disability

Note: if over 22 and attending school, may have a common law spouse or spouse if married before the age of 22)

(“Attendance in School”: attendance must be at a post-secondary institution accredited by the relevant government authority)

Genuine Relationship If sponsoring a spouse, a common-law or

conjugal partner, or an adopted child, you must show: (a) that the relationship is genuine; and (b) that you did not enter into it ONLY for

immigration purposes

How to Prove a Marriage is Genuine A marriage certificate Other documents include:

pictures, letters of support, proof of communication (copies of letters, emails, telephone records, etc.)

A marriage interview CIC may interview both of you separately to test

whether your relationship is genuine

Citizenship and Immigration Canada prefers documents that come from at least one year before your partner applies to immigrate

For conjugal and common-law, must show that relationship is: committed, permanent, faithful, known by family and friends, partners depend on each other, etc. How?

Letters, cards, emails, phone billsJoint property (bank account, household items)Financial support PhotographsOfficial records (tax returns)Sworn statements from family & friendsRecord of religious ceremony

How to Prove a Relationship: Child Birth certificates Other documents include:

Official documents (baptismal records, school records, hospital registries, old passports)

Photographs and sworn statements from non-family members

DNA testing- conclusive, but a last resort If you receive a request for DNA testing, seek

legal advice CIC may also interview you and your child

Note – this is listed in the order of what is normally requires: birth certificates and if CIC has a doubt about birth certificates, may ask for more documents, DNA testing is last resort!

Documents from some countries are seen as less trustworthy than othersCultural differences can make it difficult for families to provide “proof” CIC is looking forDNA testing has sometimes had unpredicted results

Medical Inadmissibility All relatives who you sponsor have to take

medical examinations They may be medically inadmissible if they

have a condition that: (a) is likely to be a danger to public health; (b) is likely to be a danger to public safety; (c) might reasonably be expected to cause

excessive demand on health or social services BUT…

Medical exams = done overseas (and must be renewed every year)A person may be unable to sponsor a family member if that family member is deemed medically inadmissible

“Excessive Demand” Exception Excessive demand does not apply to spouse,

common-law partner or dependent child of a sponsor

However, the “excessive demand” can still affect your ability to sponsor parents and grandparents as they tend to have more health issues

What is considered excessive?- S. 1 of IRPR: “…a demand on health or social services for which the cost would likely exceed the average per capita health services and social services costs over a period of five consecutive years…or a demand on health or social services that would add to existing waiting lists and increase the rate of mortality or morbidity in Canada due to delay in provision of those services”

- The most recent cost has been determined to be: $4, 806.00 per year, or $24, 030 over 5 yearsSo if your relative (other than partner or child) has a condition that costs more than this, they may be found medically inadmissible

Inadmissibility: Security Risk & Criminality All sponsored persons have to undergo security

checks A person may be inadmissible on grounds of

security, human rights violations, serious criminality or organized criminality

A person may also be inadmissible on the grounds of misrepresentation.

In case of misrepresentation, a sponsorship may be denied and a sponsor has no right of appeal unless the sponsored person is a spouse, common-law partner or child of the sponsor

Note: misrepresentation applies to both PR’s and FN’sMisrepresentation means:1. Directly or indirectly misrepresenting or witholding MATERIAL facts relating to a RELEVANT matter that could induce an error2. For being or having been sponsored by a person who is IA (so, the sponsor misrepresented and the sponsoree is affected)3. On a final decision to vacate4. On ceasign to be a citizen

Financial Issues: Sponsorship Undertaking As a sponsor, you sign an undertaking

swearing that you can provide for your relative for: 3 years for spouses 10 years for children OR until they reach 25 10 years for everyone else

The undertaking means that you will pay any social assistance they receive during that time

A big problem with this is that often sponsorships breakdown with no fault of the sponsor or sponsoree. For example, in situations of abusive relationships, either the sponsor or sponsoree may feel obligated or forced into staying in the relationship. If the relationship was abusive, and the sponsor decides to leave, and the sponsoree then goes on social assistance, the sponsor will be in debt.

The Mavi case dealt with this issue. The Federal Court of Appeal ruled that a case-by-case analysis should be conducted to determine whether the debt should be enforced. PCLS intervened in this case representing METRAC and focusing on the particular impact of sponsorship undertakings in situations of abuse. Currently, the Ontario government and the Federal government is challenging this decision and have sought leave to appeal to the Supreme Court of Canada. If anyone is in this situation and wants to learn more about the Mavi case, you can get directly in touch with us at PCLS.

Financial Issues: Fees Sponsorship Application: $75 Principal Applicant (adult): $475 Principal Applicant (under 22 and “single”):

$75 A family member of the principal applicant:

over 22 or under 22 years of age and is married or in a common-law relationship: $550

under 22 and is not married or in a common-law relationship: $150

The third one also applies to a dependent child of the sponsor, a child to be adopted and an orphaned brother, sister, niece, nephew or grandchild

Fees (2) Right of Permanent Residence Fee - $490

Does not need to be paid when the sponsorship is filed but must be paid before the visa is issued overseas

Does not need to be paid by a dependant child of the principal applicant or sponsor, a child to be adopted, or an orphaned brother, sister, niece, nephew, or grandchild or by protected persons/Convention refugees

Note: needs to be paid by principal applicant and accompanying spouse/common law partner (with the exceptions)FARE fund – no interest loans

Processing Times Applications vary depending on type of

application and country submitted Generally the time period is from 1 to 2 or more

years: parents – much longer List of processing times online:

http://www.cic.gc.ca/english/information/times/index.asp

Special Rules for Refugees If you are found to be a “protected person” in

Canada and you apply for permanent residence, you SHOULD include your spouse, common-law partner, and dependent children in your application

If you do not include them you will be unable to sponsor them later

Note: Refugees do not need to list their parents, grandparents or siblings – these people are sponsored later and cannot be processed concurrently

Special Rules for Refugees (2) These family members can be processed at the

same time as you if you include them on your application

Your family members can also apply within one year of you receiving permanent residence as family members of a protected person (the “one year window”)

If they miss this time period, you have to sponsor them using the regular application

Note difference b/w concurrent processing & one year window and sponsoring- for the former, you aren’t financially responsible for them. Also, there is no right of appeal under the former to the IAD b/c you aren’t sponsoring them. Only way to challenge a negative decision = judicial review.

What if My Application is Refused? If your sponsorship application is turned

down, you could get a lawyer who can take your case to the Immigration Appeal Division to argue against the refusal

You have 30 days from the time you received the negative decision to appeal

Note that you cannot appeal if CIC refuses the application because your family member is inadmissible If CIC refuses the application because they believe that you or your family member have incomplete or false information, you can appeal the decision only if the family member is your spouse, common-law partner, or child

Where Can I Go for Legal Advice? Parkdale Community Legal Services

Open for intake: Mondays 2–6pm, Tuesdays 2–7pm, Thursdays 2–7pm, and Fridays 10–1pm and 2–5pm.

Tamil and Tibetan mini clinics: Mondays 2–6pm

Law reform and campaigns: Drop the Fee, Family Reunification

Also, South Asian Legal Clinic of Ontario

Where Can I Get More Information? Community Legal Education Ontario (CLEO)

Plain language information in various languages: www.cleo.on.ca/english/six/dosponsor.htm

Citizenship & Immigration Canada Application guides and forms: www.cic.gc.ca/english/

immigrate/sponsor/index.asp

Canadian Council for Refugees Problems with family reunification: www.ccrweb.ca/

reunificationen.html

Thank You!