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Family Sponsorship

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Family members are given high operational priority in visa office ... Ineligibility to sponsor is seen as a less onerous sanction. Arguments: Regs. are ultra vires. ... – PowerPoint PPT presentation

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Title: Family Sponsorship


1
Family Sponsorship
  • Objective s.3 IRPA to see that families are
    reunited in Canada

2
Processing
  • Family members are given high operational
    priority in visa office
  • For spouses, partners and children a six month
    processing aim
  • Parents and grandparents are not processed as
    quickly

3
Family Members who may be sponsored
  • Spouse, Common law partner or conjugal partner
  • Dependent child, biological, adopted and
    including children to be adopted
  • Mother or father
  • Grandparent
  • orphaned brother, sister, niece, nephew
    grandchild under age of 18
  • Any relative where sponsor has no aunt, uncle and
    no one on the list who could be sponsored or who
    is a permanent resident or citizen.

4
Access to IAD
  • S. 63 Sponsor may appeal decision not to issue a
    foreign national a permanent resident visa
  • S.65 IAD may not consider humanitarian and
    compassionate considerations unless it has
    decided that the foreign national is a member of
    the family class and that their sponsor is a
    sponsor within the meaning of the regs.

5
s.117 Regs. Spouse
  • Can apply from within Canada. S.123 Spouse or
    Common Law Partner in Canada Class (Since 2005
    those without status may be sponsored as long as
    no removal order issued.
  • Spouse married person. Civil Marriage Act 2005
    s.2 Lawful union of two persons.
  • Marriage must be valid in country where it took
    place and under Canadian law (Regs. S.2) Federal
    Law focuses on substantive factors such as
    degrees of consanguinity. Criminal Code
    proscribes bigamy and polygamy
  • Bhatti (373) Pakistani law requires that if the
    spouse is not present then a representative be
    named who must sign the certificate.
  • Why insist on valid marriage if functional
    relationships are recognized?

6
Excluded from the definition of spouse
  • S.117(9)(a-c) Foreign nationals under the age of
    16
  • Sponsor has an existing undertaking
  • Sponsor was at time of marriage the spouse of
    another
  • They have lived apart for a year and one is in a
    common law or conjugal relation

7
Common Law Partner, Conjugal Partner
  • Common Law Regs s. 1 COHABITING in a conjugal
    relationship, having so cohabited for at least
    one year If not cohabiting because of
    imprisonment or persecution, is still a common
    law partner
  • Can apply from within Canada
  • Evidence of cohabitation - joint receipts joint
    purchases etc.
  • Conjugal Regs s.2 residing outside Canada in a
    conjugal relationship for a year. No cohabitation
    required, must show a reason for non
    cohabitation there must be a barrier to
    cohabitation.
  • Macapagal (375) relies on a set of seven
    criteria. (over)

8
The Seven Criteria
  • Page 377
  • Shelter
  • Sexual and personal behaviour (fidelity,
    commitment etc)
  • Services ( Sharing household chores!)
  • Social activities
  • Economic Support
  • Children (attitude towards)
  • Societal perception of the two as a couple (note
    typo on 378)

9
Policy Manual Characteristics
  • Mutual commitment to shared life
  • Exclusive
  • Intimate
  • Interdependent - physically emotionally
    financially socially
  • Present selves as a couple
  • Regarded by others as a couple
  • caring or children (if any)

10
Difficulties
  • In the same sex case, Caron Problem of defining
    when a conjugal relationship begins.
  • Proof of relationship by means of credit cards
    and insurance policies and intimate emails
  • Little constraint on discretion

11
Polygamous Unions
  • Could a child sponsor a polygamous parent?
  • Inadmissible because a criminal offence

12
Relationships of Convenience
  • S.4 Regs
  • Whose state of mind is relevant?
  • What is a genuine marriage? Mutual commitment to
    a shared life.
  • How to tell if the primary reason is immigration
    (Onus is on applicant)
  • Separate interviews
  • Contradictions and no reasonable explanation
  • Factors listed on 396 (OP-2 page 45)
  • Dissolution of convenience also possible

13
Dependent Children
  • Criteria on p 399 - Biological or adopted
  • 3 possibilities
  • Under 22
  • 22 full time student
  • 22 and unable to financially self support
    because of physical or mental condition
  • Treatment of applicants who dont fit the
    category v. treatment of children who are
    inadmissible

14
Adoptions of Convenience
  • Special scrutiny to intrafamily adoption
  • Cheema p.423 Child smuggled into Canada
  • A genuine adoption in Canada but the immigration
    criteria are not the adoption criteria
  • Genuine does not require a fully developed
    parent-child relationship. Criteria on p428
  • Whats the problem with lack of genuineness?

15
The De Guzman Problem
  • 117(9)(d), 117(10) and 117(11)
  • Note that when anyone including family class
    members apply for PR visa, they must identify all
    family members as defined in Regs. S. 1
  • The assumption is that they will need to be
    examined.
  • What happens when parent lies about children?
    Should children have a right to enter? (over)

16
De Guzman
  • Note on pp. 406-7 Evans recognizes the
    possibility that her citizenship may be revoked!!
    Ineligibility to sponsor is seen as a less
    onerous sanction.
  • Arguments
  • Regs. are ultra vires. Interpretation of s.13 of
    IRPA
  • Section 7of Charter. NB. P. 408 She is not a
    refugee or person in need of protection. Limited
    possibility of Charter argument.
  • Consistency with international human rights law-
  • S.3(3)(f)Rule of construction
  • Signatory does not mean binding

17
Policy Manual on s.117(9)(d)
  • The exclusion found here exists to encourage
    honesty and prevent applications from
    circumventing immigration rules.
  • Analysis See CCR website
  • http//www.ccrweb.ca/documents/excludedfam.pdf

18
Sponsor (s.130)
  • Canadian citizen or permanent Resident
  • At least 18
  • Resides in Canada (or will where partner or child
    is being sponsored)
  • Has filed an application

19
Undertaking (s.131-2)
  • 3 years for partner
  • 10 years (or age 25, if earlier) if dependent
    child under 22
  • 3 years for dependnet child over 22
  • 10 years for others.

20
Requirements for a sponsor (s.133)
  • Relate to financial capacity and non-criminality
  • Exceptions to financial capacity requirements
    where partner or child is being sponsored

21
Withdrawal of sponsorship
  • S. 119 allows sponsor to change their mind
  • Options for applicant in Canada. HC? Temporary
    Permit?

22
Inadmissibility of Applicant, criminality of
sponsor
  • Note s.64 of IRPA No appeal to IAD if
    inadmissible on serious grounds.
  • If misrepresentation only an appeal if partner or
    child
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