Spousal Sponsorship

A family member who was never declared or examined

This is the single most damaging problem in family sponsorship, and the one people least expect.

If the sponsor applied for permanent residence and became a permanent resident, and at that time the person they now want to sponsor was a non-accompanying family member who was not examined, that person is excluded from the family class. A spouse married before landing but never declared, or a child from an earlier relationship left off the forms, cannot later be sponsored by that person.

There is a narrow exception where the person was not examined because an officer determined no examination was required. It does not help where the sponsor was told the person could be examined and did not make them available, or where a spouse was living separate and apart and was not examined.

Couples discover this years later, when they try to sponsor. By then nothing in the relationship matters.

Note what this does and does not decide. It closes the door on sponsoring that person. It says nothing yet about the sponsor’s own status — and that is a separate proceeding, with a separate appeal right and different rules. See When the non-disclosure catches up with the sponsor below.

A wedding both partners did not attend in person

Proxy, telephone, fax and internet marriages — where one or both parties were not physically present — are excluded relationships across Canada's temporary and permanent immigration programs. To count as present, both parties must have taken part in the ceremony in person, not only the sponsor.

Where the exclusion applies, the partner is not a member of the family class, and on appeal the Immigration Appeal Division has no jurisdiction to weigh humanitarian and compassionate factors, however genuine the relationship.

There are limited ways through, and they are worth knowing before you assume the worst:

• Applications received by IRCC before 11 June 2015 are not subject to the exclusion.
• An exemption exists for members of the Canadian Armed Forces who could not attend because of travel restrictions related to their service.
• A couple married by proxy who have been living together may have the relationship assessed as a common-law partnership instead.

That last route is the one most often open, and it rests on evidence of cohabitation. It is far easier to assemble that from the start than to reconstruct it after a refusal.

The sponsor has not centralised their life in Canada

A sponsor who has been living and working abroad for years may not be a sponsor within the meaning of the Regulations at all, even while holding status.

The same jurisdictional problem follows. If the person is not a sponsor, the Immigration Appeal Division cannot weigh humanitarian and compassionate considerations. A Canadian citizen may sponsor from outside Canada, but must satisfy IRCC they will return to live here. That is a question of evidence, not intention.

The relationship has to be proved, not simply true

The Regulations exclude a relationship on either of two separate grounds: that it was entered into primarily to acquire status or a privilege under the Act, or that it is not genuine. Either finding is enough on its own.

That distinction matters more than it looks. The two limbs are judged at different moments. Genuineness is assessed as things stand now; primary purpose looks back to why the relationship was entered into. A couple who are plainly committed today can still be refused on the first limb, which is why evidence of a happy present does not always answer the question being asked.

Decisions turn on the same handful of things: how the relationship began, what each partner knows about the other, financial support between them, whether and how they have lived together, and the evidence surrounding the wedding itself. Thin communication records, few visits, and no integration with each other's families all count against.

Inconsistency does more damage than scarcity. Where two partners give materially different accounts of their own relationship, the credibility finding that follows is very hard to recover from.

When the non-disclosure catches up with the sponsor

The exclusion described above deals with the person who was never declared. It does not deal with the sponsor, and the sponsor is exposed too.

Failing to declare a common-law partner or spouse on an earlier application can be found to be misrepresentation. The duty of candour is owed on every application, and for a permanent resident the consequence can reach as far as an exclusion order and the loss of status in Canada.

This is where the two paths separate. A permanent resident facing removal for misrepresentation appeals as a permanent resident, and on that appeal the Immigration Appeal Division can weigh humanitarian and compassionate considerations. That is the opposite of the position on the sponsorship refusal, where it cannot. Same facts, two proceedings, two different answers to whether anything can be weighed in your favour.

A finding of misrepresentation also carries a five-year bar. Where a sponsorship is filed inside that period, a right of appeal can still exist. The bar and the appeal right are separate questions, and the second is often assumed away.

There is a general rule that a refusal based on misrepresentation cannot be appealed to the Immigration Appeal Division. It does not apply where the person refused is the sponsor’s spouse, common-law partner or child. On a spousal file the appeal right usually survives, which is precisely the assumption people get wrong.

A sponsor who is barred is not always a sponsor who is finished

A sponsorship can only be approved if the sponsor meets a list of conditions throughout, and several of them catch people who had no idea they applied. A sponsor must not be in default of a previous sponsorship undertaking or of court-ordered support payments; must not be in default on a debt owed to the Crown, which includes immigration loans; must not be an undischarged bankrupt; must not be under a removal order or in detention; and must not have certain convictions, in Canada or abroad.

Each of those is a bar. None of them is automatically the end.

Where a right of appeal exists, the Immigration Appeal Division can grant special relief on humanitarian and compassionate grounds. Appeals have succeeded, for instance, where a sponsor was in default on an immigration loan but the marriage was found genuine and the best interests of the children weighed in favour, with the refusal set aside and processing ordered to continue.

That is one illustration, not the only route. What matters first is whether an appeal right exists at all, and then what can be put in front of the tribunal.