Did you know that there are two legally distinct types of Spousal Sponsorship applications in Canada? Under the Canadian Immigration and Refugee Protection Act, the type of application that you choose determines whether your spouse is eligible for an open spousal work permit and whether you have a right of appeal if Immigration refuses your application.

Where does the Canadian sponsor reside?

A sponsor must be a Canadian citizen or Permanent Resident, must be over age 18, and must be living in Canada. If the sponsoring spouse is a Canadian citizen and is not living in Canada, the sponsoring spouse must have a solid plan to live in Canada at the time that the person they are sponsoring will become a permanent resident in Canada.

If the Canadian citizen sponsor is not living in Canada at the time that they submit the sponsorship application, the type of application must be a Family Class sponsorship. It is also advisable to consult with an immigration lawyer to understand the type of evidence that can show a concrete plan to live in Canada. Right now, because of the COVID-19 Travel Restrictions, trying to enter Canada with a foreign national spouse is currently more difficult.

Understanding the benefits and drawbacks of two different types of Spousal Sponsorships to Canada

 Spouse or Common-Law Partner Class in CanadaFamily Class outside Canada

Who you can sponsor:

 

-Legally married spouse

-Common-Law Partner

-Legally married spouse

-Common-Law Partner

-Conjugal Partner

 

Is there a right of appeal?-No right of appeal

-Yes, appeal rights but only if you check “proceed with the application for permanent residence” on the box at the top of form IMM 1344

-No appeal if the applicant is refused on security grounds or for misrepresentation

Can a spouse get an open spousal work permit while the spousal sponsorship is being processed?-Yes, under the current public policy and if the spouse is in Canada with valid status-No; family class applicants are not able to obtain an open spousal work permit
Can the applicant travel during the processing of the spousal application?-If the applicant spouse who was in Canada with valid status leaves Canada it could put the application at risk-If the applicant spouse was outside Canada, it is possible to apply for a visitor visa or study permit or work permit to Canada if the spouse is regularly eligible
What are the processing times?-around 12 months; check posted processing times but processing is delayed due to COVID-19

-around 12 months; check posted processing times but processing is delayed due to COVID-19

-theoretically Family Class applications are supposed to be prioritized by IRCC

Sponsoring spouse can live…-in Canada

-in Canada

-outside Canada (if a Canadian Citizen) if can prove that will live in Canada when their spouse becomes a PR

 

How do you choose the type of Spousal Sponsorship application?

Note that there are different application packages depending on who you are sponsoring and in which country your family member resides. Make sure to select the type of family member when you get your application package from Immigration Refugees and Citizenship Canada (“IRCC”) here: 

https://www.cic.gc.ca/english/information/applications/spouse.asp

It used to be that applicants would submit slightly different forms to IRCC. In recent years, ever since February 14, 2018, IRCC has streamlined the Spousal Sponsorship application package. Now, you indicate your choice of whether you want to apply under the Spouse or Common-Law Partner Class (“SCLP”) or the Family Class by checking off what seems to be a simple checkbox on the document checklist. If you are sponsoring your spouse to Canada, you will find the selection of the type of application on the top of page 2 of document checklist IMM 5533.

IMM 5533 Form for Spousal Sponsorship Application

Who cannot sponsor or be sponsored?

Remember, there are a number of bars to eligibility to sponsor that you should check here:

https://www.canada.ca/en/immigration-refugees-citizenship/services/application/application-forms-guides/guide-5289-sponsor-your-spouse-common-law-partner-conjugal-partner-dependent-child-complete-guide.html#rehabilitation

If any of the sponsorship bars seem to apply, make sure to consult with an immigration lawyer before you try to submit a sponsorship application.

There are also reasons why the applicant might be inadmissible to Canada, including for criminality if they were ever charged or convicted of an offence in any country, certain medical reasons, for misrepresentation or because of an inadmissible family member. Make sure to discuss possible grounds of inadmissibility to Canada with your Canadian Immigration Lawyer prior to sending your Spousal Sponsorship Application to IRCC.

Why your choice matters

If you do not qualify for the SCLP or the Family Class, it will take months, probably upwards of 5 months, for IRCC to open your application and to return it to you. If you submit an application under one category, IRCC’s policy is that they will not allow you to switch categories. You will have to start over at the beginning and file a new application under the proper category. Choosing correctly between the SCLP or the Family Class is important.

Have questions on whether the SCLP or the Family Class is the best application for your situation?

We are available to discuss your particular circumstances and which application process is best for you and your spouse. If you need any help, we’re happy to connect with you! You can book a consultation with a Canadian Immigration Lawyer by following the link below:

https://www.holthelaw.com/consultation-with-an-immigration-lawyer/

The blogpost is prepared by Alicia Backman-Beharry, Canadian Immigration Lawyer based in Calgary, AB

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