This is an extract of our Family Class Sponsorships document, which we sell as part of our Immigration and Refugee Law Notes collection written by the top tier of University Of Ottawa students.
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PART VI: FAMILY CLASS SPONSORSHIPS s. 3(1)(d) IRPA: family reunification is one of the objectives of the statute
* economic and refugee classes can bring family members with them (these people fall under Reg 70(4) and 72(4)) WHO CAN BE SPONSORED?
1) Spouses, common law, conjugal partnerships 2) Dependent children (adopted or to be adopted under the age of 18) 3) Parents (on hold) - super visa option 4) Other prescribed family members: where you have no other family members (s. 117(1)(h)) 5) Not siblings
*Sponsored family members are not required to meet selection criteria of any other class. Spouse, common law partner and child not rendered inadmissible for a medical condition that may place a burden on CDA's health care system.
SPONSORSHIP MATRIX PROVISION s. 117(1) Reg (Persons eligible for sponsorship)
s. 132(1) Regs UNDERTAKING REQUIREMENT
*Govt has discretion to defer debt (but not relieve)
SIGNIFICANCE Sponsor's spouse, CL or conjugal partner, dependent child, mother or father, person under 18 whose parents are deceased and who is a sibling of sponsor, niece or nephew, or grand child, person under 18 whom sponsor intends to adopt in CDA, relative of sponsor regardless of age if sponsor does not have relative that fits definitions of a member of the family class who is a child of the mother or father of that mother or father who is a CDN citizen, or whose app to enter and remain in CDA as PR the sponsor may otherwise sponsor Sponsor must reimburse crown for benefit provided to a sponsored FN and family members in form of social assistance. Requirement lasts three years for spouse or dependent 22 or over and 10 yrs for dependent child <22 and all other family members
QUALIFICATIONS OF SPONSORSHIP PROVISION S. 130(1) regs s. 130(2) regs s. 133(1) (Division 3 of
SIGNIFICANCE Must be 18 yrs to sponsor, and a CDN citizen or PR May sponsor if a CD citizen but not in CDA so long as you can satisfy officer that applicant will reside in CDA when sponsorship finalized 1) sponsor must intend to fulfill sponsorship undertaking 2) sponsor must be PR and not subject to removal order
Regs: requirements of the sponsor)
s. 133(1)(j) s. 133(1)(g) s. 116-122
Rule 3 of IAD rules (or s. 63(1) of IRPA) s. 136
3) sponsor must not be confined in a jail 4) sponsor cannot have been convicted of sexual offence against relative of sponsor or of sponsor's spouse, common law partner or conjugal partner (unless pardoned or 5 yrs elapsed since) 5) sponsor must not be in default financially 6) sponsor must not be in default of debts under IRPA 7) sponsor cannot be an undischarged bankrupt 8)must have minimum necessary income except if sponsoring spouse, CL partner, or dependent children 9) sponsor cannot be receiving social assistance other than disability (Reg 133(1)(k)) MNI (minimum necessary income required) If sponsor breaches undertakings or obligations, application to sponsor other dependents can be refused (can appeal to IAD on H&C grounds) Sponsorship of family class application can be refused if officer determines sponsor does not meet requirements or member of family class does not meet requirements (Regs 130-137) Within 30 days of receiving written reasons for refusal, can appeal to IAD Sponsorship app cannot be decided until inadmissibility report, revocation of citizenship, or charge punishable by 10 yrs or more decided
* Can appeal to IAD if member of family class (de novo - can adduce new evidence). If dismissed at IAD, a subsequent application will be dismissed on issue estoppel or res judicata (ex. if marriage not bona fide). If so: o Same question must have been decided in earlier proceedings o Judicial decision said to create estoppel final o Parties to judicial decision were the same persons as the parties to the proceedings in which estoppel was raised
* First step for officer is issue estoppel, and then consideration for res judicata follows
* If a subsequent application is made, fresh evidence going to birth of a child or length of cohabitation may assist, but photos, and plane trips generally do not
* Precluded from H&C if inadmissible on some grounds
* Decision can be reviewed by FC
* DEPENDENTS/FAMILY = s. 42 (IRPA) makes family member inadmissible if FN applicant inadmissible. CLASS 1: SPOUSES, COMMON LAW, CONJUGAL
No right to live in CDA - can be sponsored (overseas or inland) o Inland: FN spouses or common law partners of CDNS or PRs living in CDA can be sponsored (as long as they are not subject to removal order) o Inside: 19 months, Outside: 19-23 months o If you do not have status or you lose your status, you can be removed at any time until you get stage 1 processing, after which you cannot be removed Spouse is interpreted as a marriage that is valid under CDN law Require a visa before entry Ability to prove that you're in a relationship decreases as you go down from spouse to the conjugal partnership status
PROVISION s. 5 regs
s. 1(1) regs
s. 2 regs
s. 4(1) regs
s. 356 regs INLAND SPONSORSHIP s. 123 regs s. 124 regs s. 127 regs s. 129 regs
SIGNIFICANCE Ineligible spouses: someone under 16, bigamy, or if person has lived separate and apart for at least 1 yr and is common law partner of another person Common law partner: person residing w/person in conjugal relationship and has been in relationship for period of at least 1 yr
- persons who are in a conjugal relationship but are unable to cohabitate due to persecution or any form of penal control are deemed common law partners (s. 1(2)) Conjugal partner: foreign national residing outside CDA who is in a conjugal relationship with sponsor and has been in relationship for period of at least one year Relationship must be genuine. Must 1) be considered in present tense 2) consideration must be given to whether relationship primarily entered for purpose of acquiring status Fiance not eligible for sponsorship unless qualifying as conjugal or common law partner
Spouse or common law partner in Canada may acquire PR status FN must be cohabitating with sponsor, have TR status and be subject of sponsorship app Sponsor must undertake to meet requirements before spouse becomes PR Accompanying family members permitted to be PRs if applicant has become PRs and family not inadmissible
1) Is the marriage valid under the laws of the jurisdiction of the country in which they were married?
a. Essential validity: legal capacity to marry (prior existing marriages, prohibited degrees of consanguinity, non consummation, consent) b. Formal validity: technical aspects of ceremony - determined in accordance with laws of jurisdiction where it took place c. No need for religious fulfillment 2) Is the marriage valid under Canadian law?
3) If not legally married, does the relationship meet the requirements of a common law or conjugal partnership?
COMMON LAW TEST
1) cohabitation for 1 + years 2) conjugal relationship CONJUGAL PARTNERSHIP TEST (M v H factors) 1) shelter - cohabitation 2) sexual and personal behaviour (exclusive, committed) 3) services - shared responsibilities 4) social activities - share time together, interaction with family 5) economic support 6) children - shared attitudes towards children
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