Are you concerned about applying for permanent residence for your spouse while out of status in Canada? It's always recommended to maintain valid status while in the country, but sometimes circumstances can lead to being out of status. This situation becomes even more complicated if you're married and living with your spouse in Canada.
If you're out of status and beyond the restoration period, you may be required to leave Canada. However, spouses of Canadian citizens or permanent residents may still be eligible to apply for permanent residence through the Spouse or Common-law Partner in Canada class, even without legal status.
Under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA), the Minister has established a public policy that allows spouses and common-law partners of Canadian citizens and permanent residents in Canada, who do not have legal immigration status, to be considered for permanent residence.
What Does This Policy Mean?
Recognizing the hardship that separation imposes on families, this policy facilitates the processing of genuine spouses and common-law partners who are already cohabiting in Canada, regardless of their current immigration status. By allowing these individuals to apply for permanent residence from within Canada, the policy ensures that family ties are preserved while maintaining the integrity of the immigration system.
Case Study: Mola's Journey to Permanent Residence
In 2021, Mola, a recent graduate in Canada, met his spouse. They got married the next in 2022. At this time Mola had a valid visitor's status in Canada. While in the process of applying for Permanent Residence via Spouse or Common-law Partner in Canada class, he received a refusal of his request to extend his status as a visitor in Canada leaving him out of status in Canada. Despite these challenges, we successfully represented Mola on his spousal sponsorship application addressing his status in Canada and applying the public policy under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA). This success story highlights the effectiveness of the policy in reuniting families and providing stability to those out of status.
Addressing Lack of Status
For the purposes of the current public policy, "lack of status" refers to individuals in the following situations:
Those who have overstayed a visa, visitor record, work permit, or student permit.
Those who have worked or studied without authorization under the Act.
Those who have entered Canada without the required visa or other document as per the regulations.
Those who have entered Canada without a valid passport or travel document (provided valid documents are obtained by the time CIC seeks to grant permanent residence).
“Lack of status” does not include other inadmissibilities such as:
Failure to obtain permission to enter Canada after being deported.
Entry into Canada with a fraudulent or improperly obtained passport, travel document, or visa, used for misrepresentation under IRPA.
Individuals under removal orders or facing enforcement proceedings for reasons other than the aforementioned lack of status reasons.
Application Processing
The introduction of this policy means that applicants who lack legal status but have genuine relationships and valid undertakings can be processed under the Spouse or Common-law Partner in Canada class. This includes exemptions from certain inadmissibility requirements related to their lack of status, provided all other criteria are met.
What Next?
Reuniting and having your spouse or common-law partner become a permanent resident in Canada could be a daunting task but with the right information and strategy in place, it is highly achievable but it requires careful planning and preparation.
If you are a Canadian Citizen or permanent resident and would like your spouse or common-law partner become a permanent resident, our experienced team can guide you through every step, from assessing your eligibility to ensuring a complete application. Contact us or book a consultation and let our experts guide you through the spousal sponsorship application process.
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