Spousal Sponsorship Residency Rules: The Double-Edged Sword

Spousal Sponsorship Residency Rules: The Double-Edged Sword

When submitting an application to sponsor your spouse to come to Canada, there are specific conditions that must be met. If the sponsor is a Canadian permanent resident rather than a Canadian citizen, it is necessary for the sponsor to reside in Canada. As with all spousal sponsorship applications, that individual must also establish that their relationship with their spouse is genuine and not primarily for the purpose of immigration. How, then, is that individual expected to be able to maintain their residency requirement within Canada, but also have a genuine relationship with the spouse who resides abroad? In the case of Iao v. Canada (Citizenship and Immigration), the consequences of spending too much time outside of Canada are evident.

Ms Iao, who was granted Canadian permanent residency in 1997, had married her third husband in China and subsequently applied to sponsor him and his children to Canada in 2010. In 2011, her application to sponsor was refused on the basis that Ms Iao did not meet the residency requirements in order to qualify as a sponsor.

Under the Immigration and Refugee Protection Regulations, a Canadian permanent resident who wishes to sponsor their spouse to come to Canada must reside in Canada from the date of their application until the date of the decision on the application. When assessing whether a sponsor resides in Canada, the court indicated that immigration officers can look at the following questions:

  1. Was the individual physically present in Canada for a long period prior to recent absences, which occurred immediately before or during the application to sponsor the applicant for a permanent resident visa?
  2. What is the extent of the appellant’s physical absences?
  3. Where are the appellant’s immediate family and dependents?
  4. Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country? and
  5. What is the quality of the connection with Canada: Is it more substantial than that which exists with any other country?

In this case, the Immigration Officer said that Ms Iao failed to prove that she had met the residency requirement. She appealed the Officer’s decision on the basis that she was spending time outside of Canada in order to be with her husband, and that she believed that the immigration Officer applied the wrong legal test when making the refusal decision. According to Ms Iao, she spent eight months of the year in Canada, and only four months out of the year in China with her husband and family.

The information provided to Citizenship and Immigration Canada by her husband told a different tale, however. According to her husband, Ms Iao was spending the majority of her time in China with him.

Ms Iao said she was residing in Canada because she had a valid permanent resident card; she had filed her Canadian income taxes, and had a daughter from a previous marriage living in Vancouver . The Immigration Appeal Division found that there were discrepancies between the evidence provided by Ms Iao, and the evidence supplied to the visa Officer. Based on the information from her husband, Ms Iao had spent 74% of her time outside of Canada between the date the application was filed and when a decision was made.

The Immigration Appeal Division also found that while Ms Iao’s had a daughter living in Canada, the rest of her immediate family (including her husband), was residing in China. The Court found that it was not unreasonable to assume that Ms Iao would be spending more time in China to be with the majority of her family, as opposed to being in Canada with only one of her children, especially since the daughter in Canada was residing with her father – one of Ms Iao’s ex-husbands.

As a result, the Immigration Appeal Division concluded that Ms Iao’s ties to China were significantly stronger than her ties to Canada.

Permanent residents who want to spend time abroad to be with their spouse during the immigration application process should beware. If you spend too much time abroad, the sponsorship application may be refused.

On the other hand, immigration officers also want to see evidence of couples being together to prove the relationship is genuine. There lies the “catch-22”; the sponsor is required to reside in Canada during the processing of their application, yet they are also supposed to be able to prove that they are truly in love with the spouse they are sponsoring, who happens to reside outside of Canada.

This Article is prepared for general information purposes only and is intended to provide comments for readers and friends of the Filipino Journal. The contents should not be viewed as legal advice or opinion. If you have specific questions regarding immigration law, you should discuss them with a legal advisor of your choice.

Reis is a partner with Aikins Law and practices in the areas of immigration law. His direct line is 204-957-4640. If you would like to know more about Reis or Aikins you can visit the firm’s web page at www.aikins.com or e-mail him at rrp@aikins.com. Leanne is an immigration legal assistant at Aikins Law. She holds a Bachelor of Arts degree in sociology and criminal justice from the University of Winnipeg.