Michael Battista, B.A., LL.B
Battista Migration Law Group
Certified as a Specialist in Citizenship and Immigration Law
Law Society of Upper Canada
28th Annual Immigration Law Summit
November 26, 2020
“Life would still present them with other moral trials, of course, but that no longer mattered: they were both on the other shore.” -Gabriel García Márquez
Introduction
The global pandemic has added a sense of urgency to family reunification issues in immigration law. In the face of upheaval and uncertainty, our clients present an array of motivations and priorities based on their unique relationships, employment options, and other commitments. Now more than ever, best practices in legal representation require a sensitivity to these unique circumstances in addition to an awareness of rapidly changing policy and procedures.
The first part of this paper will explore immigration law and policy developments during the pandemic as a guide to effective legal advice. The second part of this paper will review interesting jurisprudence in the area of spousal sponsorships over the last year.
Recent developments in immigration law and policy, and related strategies
A threshold question in sponsorship files is whether to proceed with an application in the Family Class, or in the Spouse or Common Law Partner in Canada Class. This choice has assumed a heightened importance during the pandemic given the restrictions on international travel globally. Below is a list of considerations which may assist counsel in advising clients given recent developments.
Reunification prospects: can the spouse/partner enter Canada?
Given that the Spouse or Common Law Partner in Canada Class requires the spouse/partner to be physically present in Canada cohabiting with the sponsor[1]from the time of submitting the application until permanent residence is granted, it is important to first determine whether the proposed applicant for permanent residence is exempt from current travel restrictions. Such an exemption will allow them to reunite with their Canadian spouses/partners and establish cohabitation. Fortunately, the initial restrictive approach to exemptions from border restrictions has been replaced by an expansive definition of qualifying family relationships.
i) Qualifying relationships:
There are two categories of family relationships which permit entry to Canada in order to access the Spouse or Common Law Partner application process: immediate family, and extended family. This distinction is important because each category is subject to a different process for entry, as will be explained further below.
Immediate family includes spouses (legally married spouses of the same or opposite sex), and common law partners (parties of the same or opposite sex who have cohabited for at least one year). Note that conjugal partners are not included in the definition of immediate family members even though they are independently recognized as members of the family class.
Shortly after the imposition of border restrictions, debate arose regarding the recognition of marriages conducted electronically, for example marriages conducted by Zoom or Skype. Such marriages (including proxy marriages) are excluded from the family class by operation of R. 117(9)(c.1). There is less urgency to this issue now that fiancés can enter Canada in the category of extended family.
Extended family members include people who have been in an exclusive dating relationship for at least one year and have spent time in the physical presence of that person at some point during the relationship. IRCC’s posted definition of an “exclusive dating relationship” states:
An exclusive dating relationship means you’re in a romantic relationship with a Canadian citizen or permanent resident, have been in the relationship for at least 1 year and have spent time in the physical presence of that person at some point during the relationship.
Examples of an exclusive dating relationship include:
fiancé(e)
committed romantic partners for at least 1 year who lived together but don’t meet the definition of common-law
boyfriends, girlfriends or any other couple in an intimate, loving relationship
Extended family members would therefore include conjugal partners – parties in a committed, exclusive relationship for at least one year who are neither married and who cannot demonstrate at least one year of cohabitation. However, the use of the term “dating” implies a less rigorous standard than conjugal partner relationships, which must demonstrate that they are “marriage-like”[2].
In addition to the requirement of a one-year relationship, another element of exclusive dating relationships is the exclusion of online relationships. There is a clear requirement that the parties have been physically present “at some point in the relationship” although there is no minimum threshold of physical presence.
The extended family member category also brings back the fiancé, a type of relationship which was eliminated from recognition in Canada’s immigration policy with the implementation of IRPA in 2002. Prior to IRPA, the Immigration Regulations defined fiancés by their agreement to marry their sponsors within 90 days of their admission to Canada.[3]There was also a requirement that there be no impediment to the intended marriage.
ii) Processes and proof of relationships:
Separate processes exist for the entry of immediate family and extended family of Canadians or permanent residents. These processes exist outside of the normal requirements for temporary resident visas and eTAs. Common to both processes are the requirements of a stay in Canada for more than 15 days and a 14-day quarantine plan. It is also best under both processes to ensure that the spouse/partner in Canada is available to be contacted at the time of the traveler’s arrival in order to verify the relationship.
Immediate family do not need authorization prior to travelling to Canada and presenting themselves at a port of entry. However, they should carry (or provide to a visa office if they are applying for a temporary resident visa):
- documentary proof of their relationship to the Canadian or permanent resident, such as a marriage certificate or proof of cohabitation of at least one year. Proof of cohabitation should consist of documentation linking both parties to the same address more than one year prior to arrival in Canada. Such documents would ideally be joint leases or property deeds, but it can also include documents addressed to both parties at the same address such as bank statements, utility bills, or government-issued documents and correspondence. Keep in mind that the goal is to document a common shared household; thought should be given to which documents would logically establish that fact,
- Proof of their spouse/partner’s Canadian citizenship or permanent resident status,
- Evidence that they are visiting their partner for more than 15 days (such as a return airplane ticket dated more than 15 days away from arrival).
Extended family members require authorization prior to travelling to Canada. The authorization is obtained by emailing the address posted on IRCC’s website: IRCC.COVID-TravelExemptions-Exemptionsdevoyage-COVID.IRCC@cic.gc.ca The request should not be made for travel more than six months from the time of the request.
The request for authorization should be accompanied by:
- The sworn declaration from IRCC’s website attesting to the dating relationship,
- Any documentary evidence that the relationship has been in existence for more than one year. This may include evidence of email correspondence, social media evidence, financial transfers, photographs, or testimonials from friends or family aware of the relationship. This evidence should pre-date the declaration by one year.
Documentation of the relationship is not required in the process of requesting authorization for extended family members, but best practice is to provide such evidence to avoid potential concerns and delays.
Within 14 days of the request for authorization, a response approving the authorization should be provided in email format. The authorization email should be carried by the extended family member to the port of entry along with the sworn declaration, supporting relationship evidence and proof that the extended family member will be remaining in Canada for at least 15 days.
iii) Know the proposed port of entry:
It is more important than ever to guide your client through strategic decisions about which port of entry to use when entering Canada. The travel restrictions have resulted in inconsistent and arbitrary decision making by airlines and at certain ports of entry. Consult with colleagues if in doubt.
iv) Challenging a refusal
If a person seeking to enter Canada from the U.S. is found not to qualify under the travel restrictions, they will be issued a “Direction to Return to the U.S.” pursuant to R.41(d) of the Regulations. R.41(d) is a new subsection authorizing the issuance of a direction back to the U.S. in the case of non-compliance with the Emergencies Actor the Quarantine Act.
A “Direction to Return to the U.S.” not only results in the denial of entry to Canada, it prohibits someone from returning to seek entry until the restrictions under the Quarantine Act are lifted.
Once a Direction has been issued, therefore, the subject of the Direction risks being determined inadmissible and issued an exclusion order if they return to seek entry prior to the lifting of restrictions under the Quarantine Act. Exclusion orders prohibit entry for one year. The better strategy is to counsel clients to withdraw their application to enter without the issuance of a Direction because this preserves their right to re-attempt entry.
Because these Directions are issued pursuant to R. 41(d) they can be challenged through a judicial review application to the Federal Court.
After entry: can the spouse/partner work?
Most spouse/partners are concerned about their ability to work after entering Canada. One of the primary attractions to the Spouse or Common Law Partner Class is the open work permit which in normal times is issued between three to four months after filing an application.
Processing times have now ballooned and few if any work permits in the Spouse or Common Law Partner Class have been issued since March, 2020. Clients who choose an inland sponsorship should be warned that there may be a lengthy wait for an open work permit. Advice can be provided about the possibility of remote work for an overseas employer or obtaining a work permit through alternative means such as the International Mobility Program.
After entry: does the spouse/partner have access to health care?
Health coverage is another primary concern for sponsored spouses/partners. In Ontario, OHIP is available to applicants in inland sponsorships upon the receipt of an open work permit and a job offer from an Ontario employer.
However, effective March 25, 2020, all medically necessary health services (including assessment) are available from hospitals and physicians in Ontario regardless of enrolment in OHIP:
These services are not restricted to COVID related care. The three-month eligibility period for OHIP coverage has also been waived.
After entry: can the spouse/partner travel while the application is in process?
A person who has applied for permanent residence under the Spouse or Common Law Partner in Canada category is not restricted from international travel provided that they have the proper documentation to return to Canada. This documentation includes a travel document and temporary resident visa (if they need one), and written authorization if they qualify to return as extended family. Such authorizations are issued for one-time use.
The principle of dual intent as described in s. 22(2) of IRPA can be used to facilitate the re-entry of someone who has applied for permanent residence in an inland sponsorship application. Providing a letter explaining the status of the sponsorship application and referring to the principle of dual intent should suffice.
Operational guidance on dual intent was recently updated to address the situation of sponsored spouses seeking temporary entry:
The guidance suggests the following factors to officers assessing the intentions of a spouse/partner being sponsored for permanent residence:
whether the sponsorship application has been approved;
whether the application for permanent residence has received stage one approval;
to what extent the applicant has retained ties in their home country;
what the applicant’s plan is, should their application for permanent residence be refused.
After entry: what documentary requirements are forgiven in sponsorship applications?
Program delivery instructions allow for the submission of applications which would normally be returned as incomplete due to the absence of required documents:
There is no restriction on the types of documents which can benefit from this policy. However, it is critical to indicate that the documents are missing due to service disruptions resulting from COVID. Without this explanation, applications will be rejected as incomplete pursuant to R. 10.
Once that explanation is provided, the application will be held for review within 90 days. If the missing documents are not provided within 90 days, a request will be made by IRCC for the documents, with a 90-day deadline.
The policy does not provide details of what will happen if the documents are still not available, but it can be assumed that with a detailed explanation regarding the continued unavailability of the documents, a request for a further extension of time will be considered on its specific merits.
Interesting sponsorship cases
A.P. v. Canada (Citizenship and Immigration), 2020 FC 906
This case tops the list of interesting spousal sponsorship cases in 2020 because of its potential to expand the traditional interpretation of the family class. Justice Fuhrer reviewed a decision of the Immigration Appeal Division concerning the sponsorship of a gay man by his straight female friend. Justice Fuhrer found the IAD’s decision unreasonable because it focused on the fact that the couple was a “mixed-orientation couple” to the neglect of other conjugal factors, such as the fact that the couple co-parent a child:
“Both the reasons and the transcript demonstrate the IAD was not open to the possibility of a loving, mixed-orientation relationship centred on the concept of a joint family unit meeting the statutory criteria, regardless of the degree of sexual intimacy.”[para. 29]
Khandaker v. Canada (Citizenship and Immigration), 2020 FC 985
This case is included for the interesting issue it raises rather than the result in the case. This issue is: what is the impact of a request for an exemption from an eligibility requirement of the Spouse or Common Law Partner in Canada Class in R. 124?
In this case, the applicant’s sponsor was ineligible to act as a sponsor because she herself had acquired permanent residence through sponsorship within the previous five years (R. 130(3) prohibits this). The applicant requested to be exempted from this requirement on humanitarian and compassionate grounds and to be processed in an inland sponsorship. IRCC instead treated the application as a humanitarian and compassionate application and transferred the application to the H&C processing office which issued a negative decision. The question is whether a request for an exemption from an eligibility requirement converts the application into an H&C application or whether the exemption request can be waived within the permanent residence class and processed under that class. Justice Little determined that the IRCC’s choice of procedure and the officer’s negative decision was reasonable.
The practical significance of this decision is that it deprives applicants of a simpler process: requesting an exemption from a requirement of R. 124 on H&C grounds and processing within the Spouse or Common Law Partner in Canada Class. Instead, it places their application in the H&C stream in which a wider array of factors are considered to determine whether permanent residence is justified.
McLeish v. Canada (Citizenship and Immigration), 2020 FC 747
This case emphasizes the need to provide an explanation in applications without traditional documentary evidence of cohabitation. In this case, there was no documentation establishing the cohabitation of a couple applying in the Spouse or Common Law Partner Class aside from letters from family members and neighbours. Justice Norris stated that the officer was unreasonable in failing to explain why the letters were not sufficient proof of cohabitation:
[38] With respect to the issue of cohabitation, Mr. McLeish did not provide the sorts of things one might normally provide to demonstrate where one is living – e.g. a bill in one’s name sent to the address in question – and that one has combined one’s affairs with those of another – e.g. joint ownership of a residential property. He did, however, offer an explanation for why he was unable to provide such evidence. He offered this explanation (through Ms. Mitchell) in his original application and in response to the procedural fairness letter. This is something that both the document checklist and the procedural fairness letter contemplated yet the officer never explains why, as must have been the case, this explanation was judged to be insufficient. While the officer notes the explanation in the GCMS notes, the officer never engages with it in the notes or in the decision letter. The officer was not required to accept the explanation but the officer was required to explain why it was not accepted and why, as again must have been the case, the failure to provide the usual sorts of proof of residence or combining of affairs counted against the application. This is especially so considering the importance of the matter for both Mr. McLeish and Ms. Mitchell and the significant implications of an adverse decision (cf. Vavilov at paras 133-35).
[39] Further, although Mr. McLeish did not provide the sort of evidence that might typically be used to establish one’s place of residence, he did provide other evidence that he and Ms. Mitchell were living together in her home. In addition to the two statements from Ms. Mitchell, he provided letters from, among others, two of Ms. Mitchell’s daughters and a next-door neighbour. The authors all attested to their personal knowledge that Mr. McLeish had been living with Ms. Mitchell since June 2017. The long-distance telephone records he provided were capable of corroborating (at least to some degree) this evidence of cohabitation. Importantly, most of this information was provided with the original application. Even though the procedural fairness letter requesting proof of cohabitation alerted Mr. McLeish to the fact that the officer had “concerns” that he may not meet the requirements for immigration to Canada, the basis of these concerns – presumably, the insufficiency of the evidence of cohabitation that had been provided – is not explained. (The GCMS notes relating to the procedural fairness letter do not shed any additional light on the basis of the officer’s concerns.) As a result, even if one considers the final decision in light of the procedural fairness letter, one is no further ahead in understanding why the evidence initially provided by Mr. McLeish was found to be insufficient. Once again, the officer was not required to conclude that that evidence was sufficient to establish that, in fact, Mr. McLeish and Ms. Mitchell had been cohabiting for the requisite period of time but the officer was required to explain why that evidence was found to be insufficient.
Zhou v. Canada (Citizenship and Immigration), 2020 FC 633
This case is useful in addressing the reasonableness of suspicions that arise in spouse/partner relationships of short duration. Justice Norris provides useful guidance about the need for individualized assessments of such relationships in the following paragraph:
[48] While the speed with which a relationship develops can be a relevant consideration, it must be approached with care. Affairs of the heart seldom unfold fully rationally. There is no objective benchmark by which to determine whether a given relationship developed at the appropriate speed or not. Rather, a decision maker must determine whether the development of the relationship makes sense in the context of the lives of the parties in question and in the absence of an ulterior motive. The latter point is important because the party contending that the marriage was not entered into in bad faith has the difficult task of proving a negative – namely, that the marriage was not entered into primarily for an immigration purpose. This can usually be done only indirectly, by showing that it is not necessary to posit an ulterior motive to explain why the parties acted as they did.
Conclusion
The speed and nature of policy developments allowing for the reunification of spouses and partners during the pandemic demonstrates the importance of the family class to policy makers. At the same time, technical requirements and inconsistent decisions at ports of entry complicate the task of advising clients. In these circumstances, best practices in immigration representation requires an attention to rapidly changing policy as well as a careful attention to client priorities.
[1]R. 124 [2]IRCC Operational instructions and guidelines, “Assessing conjugal relationships”:https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/family-class-determining-spouse/assessing-conjugal.html [3]Regulations pursuant to the Immigration Act S.C. 1976-77, c. 52, R.4