Cohen Brosh Law Offices

Canadian Family Immigration Law

Canadian Family Immigration

Canadian Family Immigration Law

The guideline for Canadian Immigration Law

Canadian Immigration Law aims to reunite Canadian citizens and permanent residents with their families. The guideline for this objective is the Immigration and Refugee Protection Act (IRPA), passed in 2002. This Act makes it possible for qualifying candidates to be reunited with their family members in Canada. This article will cover Family Immigration Law under the IRPA guidelines. For further clarification, information or queries please contact Cohen Brosh Law Offices.

History

Confederation was the union of Nova Scotia, New Brunswick and the province of Canada to form the Dominion of Canada. This occurred in 1867 at which point the newly formed Dominion of Canada had a population of 3.4 million people. As of 2017 Canada’s population was recorded at 36.5 million. Over 6 million new immigrants have arrived since 1990. Until 1962 Canada’s immigration laws were relatively discriminative to non-European, non-American applicants. Around this time the economic value of immigration was becoming more apparent. In 1967 Canada began using a point system for new immigrants that did not include race or nationality. This new points system focused on age, experience, language, and education. Canada was becoming more interested in the contributions immigrants could make to the Canadian labor force. The Immigration act of 1976, which came into affect in 1978, greatly propelled these changes further. The Act embraced immigration, outlining specific objectives including family reunification. This Act also embraced diversity and for the first time included refugees.

Immigration Policy Today

Following the 2001 September 11 terrorist attack in the U.S.A., Canada updated its immigration policies. In 2002 the Immigration and Refugee Protection Act (IRPA) came into affect. The IRPA included more power in handling any potential security threats including detaining and deporting said threats. It also extended the family group to include same-sex and common-law marriages.

 Since the 1980s Canada has made an effort to measuredly increase the number of immigrants admitted per year. In 1985 it was reported to parliament that in order to maintain its population, keeping into account the death and birth rates, Canada would need to continue its immigration programs. More immigrants to Canada meant more working people, with taxable income. These immigrants also were considered to be an asset given the language, age, experience and education criteria that most were reaching. Because of these immigrants generally have higher rates of education. According to Statistics Canada’s 2016 census, 93% of immigrants had knowledge of English or French.Almost half of immigrants between the ages of 25 and 64 held a Bachelors degree or higher compared to less than one quarter of the Canadian-born population of the same ages. A 2016 Statistics Canada report shows that the children of immigrants also generally outperform Canadian-born citizens in this area. Children of immigrants have a 41% university completion rate while the children of two Canadian-born citizens were at a rate of 24%. Immigrants also have similar voter turnout rates to those who are Canadian-born. This information confirms that immigrants are a useful and involved group who benefit Canadian society as a whole. The IRPA seems to acknowledge and support this. As of the 2016 Statistics Canada census, one in five people in Canada are immigrants. In 2017, 82,470 applicants were accepted as permanent residents in the Family Class. As shown in the following graph, the applicant acceptance rate has grown including applicants for family reunification.

Family Class (2015–2017, Principal Applicants and Immediate Family Members)

These acceptance rates are expected to continue to grow. As of 2019, Canada has created a program to accept more applications for the Parents and Grandparents Program. They will be accepting 20,000 new applications for parents and grandparents. Every year the Minister of Immigration, Refugees and Citizenship releases a report outlining projections for permanent resident admissions as well as areas to be improved upon and is fully in accordance with the IRPA. This report is available on the Canada.ca website. The Parents and Grandparents Program is a new addition made to the current report.

Who Can Qualify?

Canadian Immigration Law as it pertains to Family Immigration has specific parameters as to who can qualify as part of the Family Class and prioritizes select members. These parameters can in certain instances be extended to distant relatives but when considering eligibility to receive status in Canada through Family immigration; spouses, common-law partners, conjugal partners and dependent children have been given priority.

Highlights of Family Reunification Admissions in 2017

It is necessary that each applying member of the family class, including priority members, meet the specific criteria of the IRPA. Spouses applying must have a marriage that is legally recognized in both the country of origin as well as Canada. As part of this criterion both partners must be over the age of 18 at the time of application. A marriage in which the parties are separated at the time of application or one of the parties has begun a relationship with another person is a disqualifying factor. The IRPA also does not recognize any marriage proxy. As of 2002, Canada’s Immigration Act has begun to recognize both heterosexual and same-sex partnerships. This extends to common-law and conjugal partners. The guidelines for these categories do not include fiancée as Canadian Immigration Law no longer considers the promise to be married as sufficient to be a part of the Family Class. To apply as a Common-Law Partner there must be proof that the couple has co-habituated in one dwelling for at least one year in a conjugal relationship. There may be cases in which the couple is not currently co-habituating for a variety of reasons, some being out of their control. The common-law partnership is still valid under the IRPA as long as the continuous one-year period has previously been established and both parties intend to continue the relationship if reunited. Similar to common-law partnerships, Canada also considers Conjugal Partnerships in which there is no requirement for co-habitation but that the parties involved must have carried on a conjugal relationship lasting at least one year. The onus again rests on the person being sponsored to prove the relationship meets the IRPA standards.

When applying as a dependent child, the child must be biologically related to the parent. Adopted children may also apply as a dependent child if the child is younger than 22 at the time of application and is not a spouse or common-law partner. Adopted children over the age of 22 may also apply as a dependent child provided, they have financially depended on their adoptive parent (s) since before the age of 22 and still remain dependent due to physical or mental conditions. The process to receive status from the time of application often takes many months and possibly years. Because of this the age of any persons applying as a dependent child is locked-in when a completed application with appropriate fees is submitted. This Lock-In provision freezes the child’s age for the purposes of the application to ensure the length of the process does not later disqualify them due to age. Any dependent child approved for a visa that is married at the time of arrival is no longer entitled to receive status. Canada has a provision for Orphans who would not qualify as a dependent child. Orphaned children under the age of 18 who are also unwed may apply as a sibling, nephew/niece or grandchild of a sponsor.

The “Lonely Canadian” Rule is reserved to allow those who do not have any relatives in Canada, including spouse/ common-law partners, to sponsor a relative or adopted relative of any age. This rule only applies if the sponsor does not have any other members of the family class in or outside of Canada.

Process

The family reunification process can be a long and arduous one. The processing centers aim to process applications involving dependent children within 6 months but this is rarely the case. Applications for dependent children, parents and spouses are estimated to take 12-24 months to complete according to the Canada.ca website. Some factors that may delay this process may be an application that is incomplete or missing forms, if fees have not been received, how quickly the applicant’s information can be verified, how long it takes for applicant to respond to requests or concerns etc. Issues or irregularities in payments, health or criminal checks or failure of the applicant to follow instructions can also delay the process. The visa offices involved will generally allow a period of 90 days to correct information or provide any missing documentation. This includes proving sufficient proof of relationship. If there is a claim of blood relation, the onus is on the sponsored to prove relation; DNA test results can be accepted in the absence of any other proof.  Failure to meet requirements after this time may result in a rejected application. Applicants are also required to provide biometrics. Fingerprints and photos are required for applicants of the family class between the ages of 14 and 79 years. Upon arrival to Canada, Officers must be confident of met requirements and have the right to refuse arrival to anyone except under A25 of IRPA. The A25 provision requires that any humanitarian or compassionate factors be considered in specific cases. An example of probable rejection upon arrival is if a dependent child applicant is married upon arrival. IRPA guidelines specify that a married person cannot receive a visa as a dependent. When oversea visas are issued, principal applicants must arrive in Canada with sponsor, or after them but before expiration date. Applicants arriving before their sponsor or after expiration date will have the visa dissolved. All family members of applicant are required to be examined unless otherwise decided by an Officer. Due to the fact that these applications usually take longer than a year and sometimes many years, reassessments may also be done to ensure that the circumstances have not changed as to disqualify any applicants from the family class. If an application is refused a refusal letter will be issued outlining the reasons. The following graph taken directly from the IRPA outlines the general sponsorship process.

Forms and Paperwork

The reunification process begins with submitting the appropriate forms and fees to the processing centers. These forms are available on the Canada.ca website. If a child is involved, the child’s age will be locked in upon receipt of forms and fees. All principal applicants are to complete an IMM0008GEN (immigration application) form. Spouses, Common-law partners and dependents over 18 years who are included in the sponsorship must also complete an IMM 5406E form also called a Schedule 1- Background Declaration and Additional Family Information. If a dependent under 18 is not travelling with the principal applicant, they may also be required to submit this form. A Sponsorship application form (IMM 1344AE) is also required. When the completed and signed IMM 1344AE and IMM0008GEN forms and appropriate fees are received, the application is considered received. If an IMM 0008GEN form has not been submitted, sponsors may cancel the application and request a refund. Given the volume of applications every year, the processing centers aim to complete applications within 6 months though this is rarely the case. There are also a number of security measures and policies to measure each application, which may extend this time. Any irregularities that appear on a background check would need to be further evaluated. Issues such as previous deportation, outstanding criminal charges, misrepresentation of marital status, a marriage that is not considered legal in Canada or in country of origin etc. would further delay the process and may require documentation from applicants. Health checks may also be required to ensure that members of the family class are not a medical danger to public health. Applications may be refused solely on medical grounds.

In applications for spousal, common-law, conjugal and adopted dependent family classes, further evidence may be required to prove the legitimacy of the relationship. An application may be rejected if it appears to the investigating officers to be a relationship of convenience. This would be a relationship formed for the purposes of receiving permanent status in Canada. These relationships may be questioned and would require applicants to prove they are genuine and fall into IRPA guidelines. If an application is wrongfully rejected on these grounds an appeal may be filed to the Immigration Appeal Division (IAD).

In cases of adoption, the best interests of the child are heavily prioritized. All instances of adoption must create a genuine parent-child relationship. Any indication that an adoption may be an adoption of convenience will require further evaluation and possibly further interviews. Officers will look at if the adoption properly cuts all legal ties with the child’s biological parents, the authenticity of the parent-child relationship and where the adoption is legal in the country of origin. Applicants must sufficiently pass all criteria or may face a rejected application.

Finally, the sponsor will be assessed to ensure their ability to meet the commitments of the Sponsorship Agreement. The sponsorship undertaking is a legal promise to the Canadian government to support all sponsored applicants in the event that they cannot financially. The sponsor is financially responsible for all applicants even if and after the relationship dissolves. As part of this assessment a sponsor must pass a financial test. In some cases, applications for Spouses, dependents or common-law partners do not require a pass for the financial test but the sponsor is still financially responsible. A divorce or separation does not nullify the period in which the sponsor is responsible for the applicant. For a spouse, common-law or conjugal partner, the commitment is 3 years from the day the applicant becomes a permanent resident. The length of commitment is also 3 years for dependent children over 22 years of age at time of sponsorship. For all other dependents the length of commitment is 10 years from the day the applicant became a permanent resident or until the child reaches 25 years of age, whichever comes first. The following chart displays the length of commitments for all provinces in Canada except Quebec.

Spouse, Common-Law Partner, Conjugal Partner

3 years

Dependent children, 22 years or over

3 years

Dependent children under 22 years

10 years or until child reaches 25 years of age, whichever comes first

Parent or grandparent

20 years

Other relative

10 years

The sponsorship undertaking is a large responsibility; sponsors must provide all basic human needs including food and shelter. Whether the sponsor appears to be capable of providing these needs is a factor that is considered in family class applications.

 

Port of Entry

The Port-of-Entry for approved applicants will generally be an airport. When an application has been approved, a Confirmation of Permanent Residence document (CoPR) will be issued to applicants. Upon arrival in Canada the CoPR form must be presented to an immigration officer. The officer will inspect the document, confirm dates, identities and may interview arrival(s) to ensure they still meet the family class requirements outlined above. The Officer will then stamp the document and present a copy to the now approved applicant(s). The stamped Confirmation of Permanent Residence document activates the candidates Permanent Residence status. It is crucial the applicant keep this document, as it will be a form of proof of PR status until their Permanent PR card arrives in the mail. The applicant can then apply for a Social Insurance Number (SIN) in Canada. A SIN will be necessary for obtaining employments, income tax reporting, opening a bank account and much more. A new Permanent Resident will need both a Permanent Resident card and their stamped copy of the Confirmation of Permanent Residence document to apply for a SIN in Canada.

Case-Processing Centers

Applications for family reunification are processed in Case Processing Centers (CPC) in Canada. The government bodies that become involved however depend on the location or citizenships of the applicants. Applications for status under Canadian Family Law are processed in the CPC in Mississauga. The CPC-M, or any other CPC, does not begin to process an application until all completed forms and necessary fees are submitted. Failure to submit all necessary materials in a timely manner can result in an expired or cancelled application. If there are any irregularities or issues with the application, supporting material or simply for further information on the applicant or other members of the family class, the CPC-M can transfer the application to another inland CPC or contact the appropriate visa office for more information. The inland CPC has the ability to freeze an application for as long as they deem appropriate. They may also contact appropriate visa offices for more information. In this case the inland CPC would keep the CPC-M and/or visa office informed if necessary. There is no clear protocol or guidelines for communications between the CPC’s or visa offices who provide crucial information. The communication between these parties may be a defining factor in status applications and the lack of protocol between them is perhaps the largest reason to receive counciland assistance from an RCIC. Verifying relationships, receiving criminal and health checks are part of the role of visa offices especially when applicant is abroad. Visa offices also become responsible for reporting irregularities or points of interest through required checks. Applicants or sponsors cannot access the CPC-M and most CPCs in Canada in person. They can be contacted through telephone. There are few cases in which an applicant or sponsor could access a CPC in person. Often if an interview is required the application will be transferred to the appropriate CPC and it can be accessed by appointment only.

 When the applicant is overseas the application can be submitted to the CPC in Vegreville. The CPC-V follows similar protocol to the CPC-M only they may need to rely more heavily on visa offices abroad. If there is an irregularity or point of interest suspected by the visa office the case will be transferred to an inland CPC as with CPC-M’s protocol. In cases where an interview with the abroad applicant is necessary the appropriate visa office will conduct the interview. If overseas applicants are approved, the CPC-V will then notify abroad visa offices of which family members can be processed. Quebec is the only province that requires the application to be further approved by Quebec immigration authorities.

To sum up

Canada has continually increased the number of immigrants accepted into the country each year. Applications accepted through Family Class have grown every year and are expected to continue to grow. Unfortunately, the large number of applications and investigation process may extend the already long wait times. Limited protocol and efficiency between Case Processing Centers in Canada and visa offices abroad may further complicate and delay processing. Applicants who meet all of the criteria outlined above and in the IRPA may still find the process difficult and taxing. An RCIC has insight about issues that can arise during the family reunification process and can ensure that your case is handled and filed properly. Contact Cohen Brosh Law Offices for confidential advice and guidance.

Cohen Brosh Law Offices

 

156 Menachem Begin St., 26th floor, Tel Aviv 6492109, Israel

Tel: 053-7471900

2510 Stratford Road, Richmond, VA 23225, USA

Tel: 347-436-7672

office@immilawoffice.com

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