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Introduction to Family Class Immigration

  • Broad Definition of Family: The policy recognizes diverse family structures, including common-law, conjugal, and same-sex partnerships, reflecting modern societal norms.
  • Sponsorship Eligibility from Age 18: Canadian citizens and permanent residents can sponsor relatives once they reach 18 years old.
  • Dependent Children Criteria: Includes children under 22, expanding the scope of who can be considered a dependent.
  • Parent and Grandparent Sponsorship: Requires sponsors to demonstrate financial stability for three consecutive years, ensuring they can support their relatives.
  • Adoption and Citizenship: Adopted children can directly acquire Canadian citizenship if one of the adopting parents is Canadian, aligning with the child’s best interests.
  • Duration of Sponsorship: The commitment varies from 3 to 20 years, depending on the familial relationship, indicating a long-term responsibility.
  • Health-Related Exemptions: Spouses and dependent children under 22 are exempt from certain health-related inadmissibility, easing their immigration process.
  • Limited Appeal Rights: In cases of inadmissibility due to serious issues like security threats, rights violations, or criminality, the right to appeal is restricted, highlighting the stringency of the process.

Who Can Be Sponsored?

  • Comprehensive Sponsorship List: Includes immediate and extended family members, like spouses, children, and orphaned relatives.
  • Inclusion of Dependent Family Members: Allows for a broader scope of sponsorship, encompassing the dependents of primary applicants.

Spousal Relationships

  • Evolution of Sponsorship Rules: The policy no longer supports sponsorship based on engagement due to its complexity and enforcement challenges.
  • In-Canada Sponsorship Opportunities: Allows residents to sponsor spouses and common-law partners within Canada, with provisions even for those with irregular immigration status.
  • Challenges in Sponsorship: Emphasizes the difficulties families face, including financial strain and long wait times, with measures like work permits to alleviate some of these challenges.

Spouse Category

  • Genuine Relationship Test: Ensures that the spousal relationship is authentic and not primarily for immigration benefits.
  • Legal Marriage Requirements: The marriage must be legally valid in the place of occurrence and under Canadian law.
  • Recognition of Same-Sex Marriages: Depends on the legality of the marriage in both the country where it occurred and in Canada.

Common-Law Partners

  • Defining the Relationship: Requires at least one year of continuous cohabitation in a conjugal relationship.
  • Proof of Relationship: Various forms of evidence are needed to demonstrate the genuine nature of the relationship.

Conjugal Relationship vs. Conjugal Partner Sponsorship:

  • Conjugal Relationship: This term describes the nature of the relationship between all spouses, common law partners, and conjugal partners.
  • Conjugal Partner Sponsorship: A specific category for couples who cannot sponsor or be sponsored due to the absence of legal marriage or cohabitation, often because of legal or social barriers.
  • Eligibility for Conjugal Partner Sponsorship:
  • Applicable for both opposite-sex and same-sex partners.
  • Created for those unable to legally marry or live together continuously for a year due to obstacles like immigration barriers, marital status issues, or restrictions based on sexual orientation in the applicant’s country.
  • Evidence of Commitment:
  • Conjugal partners are expected to demonstrate their commitment through various documents, such as insurance policies naming each other as beneficiaries, proof of joint ownership of possessions, and evidence of shared financial responsibilities.
  • This evidence helps establish the conjugal nature of the relationship.
  • Considerations in Assessing Conjugal Relationships:
  • The Federal Court has acknowledged the impact of different moral standards in different countries, especially regarding same-sex relationships.
  • The relationship should exhibit enough characteristics of a marriage to confirm it is not merely a means to enter Canada.

Exclusion Criteria for Family Class Sponsorship

  1. Age Limit: Applicants under 18 years are excluded.
  2. Previous Sponsorship Restrictions: If the sponsor has previously sponsored a partner and the undertaking period hasn’t ended, they can’t sponsor another partner.
  3. Current Marital Status of Sponsor: If the sponsor is married to another person.
  4. Separation Circumstances: If the sponsor has been separated from the applicant for at least a year and either party is in another common-law or conjugal relationship.
  5. Physical Presence in Marriage: Marriages conducted without both parties being physically present are not recognized.
  6. Non-examination of Non-accompanying Family Member: If the applicant was a non-accompanying family member during the sponsor’s previous PR application and wasn’t examined.

Consequences of Exclusion

  • No Right of Appeal: There’s no right to appeal to the Immigration Appeal Division (IAD) if an applicant is excluded under these criteria.
  • Humanitarian and Compassionate (H&C) Consideration: The only possible relief is to request an exemption based on H&C grounds, emphasizing that regular IRPR requirements should be waived due to compelling circumstances.
  • Judicial Review: If the H&C request is refused, seeking judicial review in the Federal Court is an option.

Section 117(9)(d) Cases: Dealing with Non-accompanying Family Members

  • Mandatory Disclosure: Sponsors must disclose all dependents at the time of their PR application. Failure to do so can lead to exclusion of these dependents from future sponsorship.
  • Legal Interpretations: Courts and immigration panels have varied in their interpretation of what constitutes adequate disclosure. In some cases, even incomplete disclosure has been deemed sufficient, while in others, more explicit disclosure was required.
  • Consequences of Non-disclosure: Non-disclosure, regardless of the sponsor’s intent, can lead to exclusion of the non-disclosed dependent from the family class.

Policy and Guidelines for Excluded Relationships

  • IRCC Guidelines: The Immigration, Refugees and Citizenship Canada (IRCC) provides guidelines on handling cases involving excluded relationships, emphasizing the need for thorough and accurate disclosure of all family members.
  • Consideration of H&C Grounds: Officers have the discretion to consider H&C grounds in cases of non-disclosure, focusing on whether there were compelling reasons for the failure to declare a family member.
  • Lack of Jurisdiction of IAD: In cases where an individual falls under the exclusion criteria of section 117(9)(d), the IAD lacks jurisdiction to provide relief.

Bad-Faith Relationships

Definition and Criteria

  • Relationship of Convenience: Identified as a relationship that primarily serves the purpose of immigration, not considered genuine.
  • Legal Framework: Section 4(1) of the IRPR categorizes these as bad-faith relationships.
  • Court’s Stance: Emphasizes evaluating evidence from both partners to determine the relationship’s authenticity.

Key Elements for Assessment

  • Primary Purpose for Immigration: Relationships entered mainly for immigration benefits fall under this scrutiny.
  • Genuineness of Relationship: The current, real status of the relationship is examined.
  • Cultural Considerations: In cultures where arranged marriages are common, practical considerations, including immigration, are typically part of the decision-making process.

Factors for Evaluation by Officers

  • Marriage Authenticity: Scrutiny of marriage evidence, such as photographs and certificates.
  • Cohabitation: Verification of the couple living together, possibly including home visits or interviews.
  • Knowledge of Partner’s Background: Understanding each other’s personal, cultural, and family background.
  • Compatibility and Natural Evolution: Compatibility in age, culture, religion, and how the relationship developed.
  • Immigration History and Motives: Past attempts to immigrate to Canada or suspicious timing in the relationship.
  • Family Awareness and Participation: Awareness and involvement of family members in the relationship.

Documentation and Preparation

  • Comprehensive Documentation: Adequate and convincing documentation to support the genuineness of the relationship.
  • Personal Interviews: The need for interviews can add stress and extend processing times; therefore, strong evidence can help avoid this necessity.

Counsel’s Role

  • Identifying Non-Genuine Relationships: Being vigilant for signs of a non-genuine relationship, such as language barriers, no cohabitation plans, or financial transactions for marriage.
  • Respecting Cultural Norms: Recognizing that genuine relationships might not always align with societal expectations and urging officers to consider individual cases carefully.

The pressure associated with sponsoring family members for immigration

Visa officers determine the authenticity of relationships in spousal sponsorship applications and often look for specific indicators or “red flags” suggesting the relationship might not be genuine or is primarily for immigration purposes. A 2015 Toronto Star article notes that some of these red flags can be contentious or perceived as discriminatory. These include:

  1. Educational and Cultural Background: Differences in education levels or cultural backgrounds, such as university-educated Chinese nationals marrying non-Chinese individuals.
  2. Wedding Ceremony Details: Having a small, private ceremony or a wedding conducted by a minister or justice of the peace, instead of a large, traditional ceremony.
  3. Wedding Reception Nature: Holding informal wedding receptions in restaurants.
  4. Socioeconomic Status of the Sponsor: If the sponsor is uneducated, has a low-paying job, or is on welfare.
  5. Physical Affection in Photos: Couples not kissing on the lips in their photos.
  6. Honeymoon Plans: Lack of a honeymoon trip, often attributed to constraints like university commitments or financial limitations.
  7. Wedding Rings: Absence of traditional symbols like “diamond” rings.
  8. Wedding Photography: Having professional wedding photos but very few in number.
  9. Living Together Evidence: Submitting photos in casual settings like pajamas or cooking to demonstrate cohabitation.
  10. Consistency in Clothing: Photos showing the couple in the same clothes at various locations.
  11. Physical Interaction in Photos: Pictures where the couple is either too close or awkwardly distant.
  12. Common Photo Locations: Frequent use of popular tourist destinations like Niagara Falls, Niagara-on-the-Lake, and Toronto in photos.

Officers use these indicators to scrutinize the authenticity of a relationship. However, the article also raises concerns and arguments that some criteria might not fairly represent all genuine relationships and could inadvertently penalize couples with unconventional or less traditional wedding celebrations.

Learn more about the Family class of immigration on our next Blog– What is Canadian Family class of immigration?|Part 2 !


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