Which factors can make or break your application?
Most people cannot afford to have their spousal sponsorship application refused. This outcome can drastically affect the parties involved and may even ruin their relationship. As such, it is vital to understand why applications of this type, which may often be very similar to one another, receive different outcomes.
This article will examine two spousal sponsorship applications that share some similarities but differ in outcome. It will then analyze the reasons behind this divergence to shed some light on the peculiarities of the spousal sponsorship approval process.
Some may think that a spousal sponsorship application is straightforward, that it is simply all about the relationship. A Canadian, a registered Canadian Indian, or a permanent resident of Canada requests to be reunited in Canada with his or her foreign spouse, common-law partner, or conjugal partner by sponsoring them to seek Canadian permanent residency. It is, seemingly, as simple as that.
However, the relationship per se cannot speak for itself. The crux of such applications lies in adequate and appropriate proof that satisfies the assessment of the relationship. To prove the relationship, the onus is on the sponsor and the sponsored person. Therefore, to obtain a favourable result, they must know what to prove and how to prove it, which is not simple at all.
Let us start from the following two applications to explore the "what" and the "how."
Two Divergent Applications
The Failed Application
Ms. D was a divorced Canadian citizen living in Burnaby with her two minor children, a disabled teenage son who needed constant medical care and a six-year-old daughter. To support her family, she worked very hard. In late 2016 she managed to secure a full-time job in childcare, where she met Mrs. N, a co-worker who was a permanent resident originally from Armenia. Ms. D and Mrs. N got along well and soon became good friends.
Mrs. N had a brother, Mr. O, who was an engineer and an Armenian citizen. The siblings were close and frequently communicated over the phone. Mr. O and his wife had two children: a seven-year-old son and a five-year-old daughter. In early 2017 Mr. O and his wife divorced and he received full custody of his daughter.
After Mr. O’s divorce, Mrs. N tried to play matchmaker for him. She introduced a couple of women to her brother but nothing came of these encounters. Finally, she turned to Ms. D.
With Ms. D’s consent, Mrs. N introduced her brother and Ms. D to each other, and they started dating on the phone and on the internet. They communicated regularly and increasingly as the days passed. On the internet they met each other’s children and exchanged pictures of the two families. Eventually, they were in contact on an almost daily basis.
In August 2017 they decided to get married. Ms. D travelled to Armenia with her children for the wedding ceremony as scheduled. She brought gifts for Mr. O and his daughter. Mr. O’s family members and friends in Armenia attended the wedding as well. During their stay, they lived in Mr. O’s apartment and visited some tourist attractions nearby. Since Armenian medical care was inadequate for Ms. D’s son, the couple eventually agreed that Mr. O should sell his apartment and move to Canada with his daughter.
After the wedding, Ms. D flew back to Canada and prepared the spousal sponsorship application by herself. She assumed that nobody would doubt the validity of her marriage since she would not have gone through all the trouble of travelling to Armenia with her family, including her disabled son, to marry Mr. O if it had not been true love. Hence, she only included their marriage certificate and a couple of pictures taken at their wedding as the supporting documents concerning their relationship.
In October 2017 Ms. D submitted the sponsorship application and payed the applicable fees. Meanwhile, she started searching for an apartment that could accommodate her family once the application was approved.
In October 2018 the application was refused because the immigration officer was not satisfied that their marriage was genuine; Ms. D was shocked. After having a discussion with Mr. O, she consulted an authorized representative (an RCIC) about their situation. With the RCIC’s analysis of her application and her options, as well as the explanation of the relevant immigration law, Ms. D realized how inadequate and incomplete her supporting documentation actually was.
The Approved Application
Mr. T was a naturalized Canadian citizen working at a trading company as an office clerk. He divorced a few years ago and was single thereafter. Mr. T lived in a rented apartment in Vancouver. He and his ex-wife had an adult daughter who worked in the United States.
In October 2016 Mr. T returned to China, his country of origin, to visit his ailing mother. There, he met with his long-time friend, Mrs. L, whom he had not seen for nearly ten years. Knowing that Mr. T lived in Vancouver, Mrs. L asked him to bring some gifts to her close friend, Ms. W, who resided in nearby Richmond.
Ms. W was a citizen of Singapore who once operated a successful business in China. She was a single mother of a teenage daughter and they both lived in a house, Ms. W’s property. Her daughter was from her previous common-law relationship.
Mr. T visited Ms. W’s house to deliver Mrs. L’s gifts in December 2016 and started to invite Ms. W out for dates in January 2017. They had been seeing each other since then.
In July 2017 Ms. W’s mother fell ill and was hospitalized. Mr. T accompanied Ms. W back to Singapore to visit her mother. Mr. T was introduced to Ms. W’s family during the visit and he visited the hospital with Ms. W every day to care for her mother, creating a bond between them.
After they returned to Canada in August 2017, Mr. T moved into Ms. W’s house upon her request. They married in September 2017. Mr. T’s daughter, Ms. W’s daughter, and Mrs. L — their mutual friend and matchmaker — were witnesses at the wedding ceremony.
After the wedding, the couple opened a joint bank account and jointly provided for the family. Mr. T decided to sponsor Ms. W to apply for permanent residency in Canada. They knew the complexity of Canadian immigration and had both previously been in relationships, so they decided not to apply on their own; they were prudent to retain an ethical and competent representative. They brought their case to several authorized representatives, and finally chose one whom they believed would adequately represent them, in December 2017.
The RCIC studied their situation thoroughly and considered the supporting documents carefully. To reflect the whole picture of their relationship and family life, she requested the documents that would demonstrate the development of their relationship and the fact that they had significantly relied on and supported each other economically, physically, and mentally.
The application was submitted in March 2018 and was approved in October 2018.
Outline of Spousal Sponsorship Application
The two applications demonstrate that the success of a spousal sponsorship application depends on two factors: mastery of the applicable immigration law and competency in applying the law. The former refers to knowing what to prove and the latter is about how to prove it.
What to prove has two facets: knowing the requirements of the law and the correct application of it. The law, the Immigration and Refugee Protection Act (IRPA) and the Immigration and Refugee Protection Regulations (the Regulations), answers two questions, namely who can be a sponsor and who can be sponsored.
Ss. 3(d) and 12(1) of IRPA are the primary authorities of the family class including the spousal sponsorship application. IRPA authorizes the Regulations to set out applicable provisions. S. 116 of the Regulations specifies the family class and s. 117(1)(a) of the Regulations states that “the sponsor’s spouse, common-law partner, or conjugal partner” is the member of the family class.
Ss. 130-137 specify the eligibility of a sponsor — the starting point of a spousal sponsorship application.
Sponsor: Eligibility Requirements
An eligible sponsor must:
- be a Canadian citizen, a registered Canadian Indian, or a Canadian permanent resident;
- at least 18 years of age;
- living in Canada;
- able to support him or herself and the sponsored spouse or partner, and the sponsored spouse’s or partner’s dependent children.
A Canadian citizen can sponsor his or her spouse, common-law partner, or conjugal partner even while living overseas, but he or she must demonstrate that he or she will live in Canada when the sponsored person becomes a permanent resident.
A sponsor must sign an undertaking promising to provide for the sponsored spouse or partner and the sponsored spouse’s or partner’s dependent children for a specified period of time, but he or she is exempted from meeting the low-income-cut-off unless the dependent children of the sponsored spouse or partner has children of their own.
In addition to the eligibility requirements, a sponsor may not be a sponsor if he or she:
- has sponsored a previous spouse or partner and three years has not elapsed since that person became a permanent resident;
- receives social assistance not due to disability;
- has not paid back the social assistance that previous sponsored family members received during the sponsor’s previous undertaking period;
- has been in breach of an immigration loan or performance bond;
- has failed to pay alimony or child support ordered by courts;
- is bankrupt;
- has been convicted of a crime that falls within the sponsorship bar for violent crime, such as an offence of a sexual nature, an offence against a relative that caused bodily harm, etc.;
- has been a permanent resident for less than five years as a sponsored spouse or partner;
- is subject to a removal order;
- is in jail, prison, reformatory, or penitentiary; and
- has applied to sponsor current spouse or partner and has not received a decision yet.
A spouse, a common-law partner, or a conjugal partner can be sponsored. They are the applicants of a spousal sponsorship application. What are the definitions of the three terms above? Ss. 1(1) and 2 of the Regulations interpret the meanings of these terms.
Where a marriage takes place outside Canada, to meet the definition of marriage with respect to immigration purpose, based on s. 2 of the Regulations, it should be “valid both under laws of the jurisdiction where it took place and under Canadian law.”
Common-law partner, according to s. 1(1) of Regulations, “means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year.”
Conjugal partner, pursuant to s. 1(2) of the Regulations, is “a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year.”
S. 4(1) of the Regulations describes bad faith relationships, and s. 117(9) itemizes excluded relationships (which this article will not explore). As a result, merely meeting the definitions will not guarantee the approval of a spousal sponsorship application.
A bad faith relationship is one that is not bona fide. It has the consequence that “a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner.” S. 4(1) of the Regulations defines a bad faith relationship as follows:
- was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
- is not genuine.
Based on IRPA and the Regulations, we may conclude that, to apply under this category, the sponsor and the sponsored person should submit adequate and proper documentation to prove that:
- the sponsor meets the eligibility requirements;
- the relationship between them is legitimate according to the Regulations; and
- the relationship does not exhibit bad faith.
Analysis of the Two Applications
Returning to the two applications with the what to prove answer in mind, we see that the first and second points were not an issue for both applications. It was the third point that led to different outcomes: while Mr. T’s case passed the bad faith test, Ms. D’s did not.
Since Mr. T and his wife retained an RCIC to represent them, one might assume (incorrectly) that Ms. D’s failure was due to a lack of professional assistance. Although seeking professional assistance is recommended, especially in light of the complexity of Canadian immigration, the outcomes can be explained by case analysis and the documentation preparation.
Analysis of Ms. D’s Case: Why Was She Refused?
Ms. D Was Confident Without Competency
Ms. D had basic knowledge of immigration — she knew she could sponsor Mr. O, her lawfully married husband, and the marriage certificate was proof of their marital relationship. She thought the marriage itself was the key, which was not in itself an incorrect assumption, but a superficial one. The marriage was the foundation of the application, yet the marriage certificate could only prove its mere existence, not the mutual, interdependent relationship based on the marriage. The certificate attested to the legality of the marriage, but could not speak to its bona fide nature.
Ms. D did not know that she should analyze their situation and then collect the relevant documents accordingly. Having some immigration knowledge is good but applying it to a real-life situation, without complete mastery, is risky.
Ms. D Missed the Point of Bona Fide
The marriage certificate was proof of the legality of their marriage, but the pictures Ms. D submitted were insufficient to pass the bad faith test. Ms. D failed to understand that she and her husband were responsible for satisfying the assessing immigration officer regarding this factor.
In fact, the couple had unfavourable factors to address as well as positive ones.
Their situation was always likely to trigger an immigration officer’s concerns of a bad faith marriage, as several factors were not in their favour: their relationship prior to marriage was brief; they did not support each other financially; they lived separately in two countries; and the only time they spent together was when they got married. Though these would not automatically lead to the conclusion that the marriage was one of bad faith, the couple needed to address them thoroughly and appropriately to dispel any potential misgivings on the part of the immigration officer.
The couple should have illustrated the positive facts, too. For instance, they had ongoing daily communication, they were attached to each other, and they had plans for their future.
Fortunately, the bad faith relationship test is two-pronged, and the officer did not conclude that the marriage “was entered into primarily for the purpose of acquiring any status or privilege under the Act.” This left the couple with a remedy: they could re-apply with well-prepared documentation based on a thorough analysis of their case.
Analysis of Mr. T’s Case: How Did He Get Approved?
Mr. T Was Fully Aware of the Complexity of Immigration
Contrary to Ms. D’s casual style, Mr. T and Ms. W did not take the application process lightly. The couple’s immigration knowledge was likely no better than that of Ms. D’s, but they knew that they were not capable of handling the application themselves. Retaining the services of a trusted authorized representative did in fact make a difference in their case. The Couple Collaborated with the RCIC
Mr. T’s marriage could equally have been viewed as one of bad faith. First, the couple were from two different countries, they had no prior interaction, and the mutual friend who introduced them was from China, a third country. Second, their relationship was brief, and the marriage was not the first for either party. Third, there was a substantial financial gap between them. With the help of the RCIC, however, Mr. T was adequately prepared to address these potentially critical issues.
The positive result was the fruit of the collaboration between the couple and the RCIC, as the latter analyzed their situation, guided the couple to collect documents, and oversaw the entire process. The couple followed the RCIC’s advice and provided her with their statements about their relationship and reference letters from family members on both sides and the mutual friend. The descriptions of their relationship in these documents were consistent and presented a holistic picture of their relationship from different perspectives. They also sent over their joint account bank statements to the RCIC, which showed the financial commitments to the family by both parties. They marked their pictures with place and time, and organized them chronologically, which presented a holistic record of their daily life. Through their documentation, they presented the assessing immigration officer with a complete narrative of their life as a loving couple. That is exactly what an officer is looking for when assessing a spousal sponsorship application.
Ms. D’s and Mr. T’s applications offer an opportunity to study the spousal sponsorship application from a practical view, and to gain some insight into how to prove the relationship. Any marriage, common-law, or conjugal relationship must pass the bad faith test. To prove the genuineness of the marriage is not as easy as proving its legality, yet it may determine the outcome. The two applications ultimately reveal that, for this type of application, situational analysis is necessary, and the documentation preparation should focus on the invisible yet crucial factors that define the relationship in question.
The supporting documents for this type of application must be organized such that it tells a love story in a plain and candid way. Though anyone can tell his or her own story, relaying it for an immigration assessment requires sound immigration knowledge, professional competency, and linguistic skills.
A spousal sponsorship application outcome significantly impacts concerning parties’ life. Ms. D’s case is a lesson. To avoid meeting the same fate, sponsors and applicants are advised to seek the services of an authorized immigration practitioner (either an RCIC or immigration lawyer), unless they are competent to handle their application on their own. For relevant information visit the Immigration, Refugee and Citizenship Canada (IRCC) website. IRCC provides both a basic and a complete guide to spousal sponsorship applications: Guide 5525 and IMM5289.