Spousal sponsorship applications under Canadian immigration rules differ depending on whether the spouse is inside or outside Canada. Generally, if you are a Canadian citizen or permanent citizen and are married to, or in an eligible relationship with a non-Canadian, and you wish to sponsor them to become a Canadian permanent resident, you are able to do so under the spousal sponsorship program provided you meet the eligibility requirements. Typically, if you meet the spousal sponsorship eligibility requirements, there would be two options in which you may be able to file the application.
Spousal or Common-Law Partner Sponsorship Inside Canada
Firstly, if your spouse or partner is with you inside Canada, you would be able to apply to sponsor them either as your married spouse or common-law partner. For a married spouse, you must have obviously been married to them and possess a marriage certificate as proof of the marriage. In the case of a common-law relationship, you will need to prove that you have lived together with your partner for at least 12 consecutive months in a relationship that is similar to that of married partners.
In other words, you must have lived together in a conjugal relationship for a continuous period of at least a year. It is worth noting that this is a requirement for Canadian citizens or permanent residents wishing to sponsor their spouses or partners who are inside Canada. Your relationship must fit into one of the two definitions in order to be eligible to apply for spousal sponsorship from inside Canada.
Spousal Sponsorship Outside Canada
If you are a foreign national outside of Canada and you are being sponsored by your spouse or partner in Canada to immigrate to Canada, you need to either be a married partner or a conjugal partner to them. A conjugal partner is similar to a common-law partner which means that you must have been in a relationship for at least 12 consecutive months and the nature of the relationship must be similar to that of married partners.
However, the distinction, in this case, is that conjugal partners are not able to physically live together. Whereas you must have been in a relationship for at least 12 months, you may not have had the opportunity to live together physically during this period for a variety of reasons. One of the reasons could be due to immigration reasons. Perhaps the immigration rules in the country you live in prevent you and your partner from living together.
Another possible reason may be the nature of your relationship that could have prevented you from living together. Hence, in those kinds of situations, you may qualify to apply as a conjugal partner under the family class category. By nature, conjugal partners would apply from outside Canada because they would not have been living with their Canadian partners.
Family Class Category
Married partners, common-law partners or conjugal partners outside Canada may apply under the family class category. The family class category is different from the category of married partners and common-law partners who are inside Canada. The main distinction, in this case, is the fact that the married partner or conjugal partner, in this case, would be outside Canada and would not have lived with their sponsoring partner inside Canada.
Aside from the general distinction arising from the inability of both partners to live together in Canada, there are other distinctions between the spouse or common-law partner class and the family class category.
Open Spousal Work Permit
The second distinction between the two is that persons who are already inside Canada and who are being sponsored by their Canadian partners are able to include in their sponsorship application an application for an open spousal work permit.
The open spousal work permit is a work permit based on the sponsorship application that is only available under the spouse or common-law partner class. It is not available to those partners that are physically outside of Canada and are being sponsored under the family class category.
Right of Appeal
The third distinction between the two categories is that persons who are already inside Canada and who are being sponsored by their Canadian partner under the spouse or common-law partner class do not have a right of appeal. In the event that the sponsorship application is refused, there is no automatic requirement that they are allowed to appeal the refusal as a matter of right.
Persons applying from outside Canada under the family class category may have a right of appeal under certain circumstances. In other words, they may have an automatic right to challenge a refusal in some cases. Nonetheless, there are some exceptions that would limit the right to appeal a refusal decision. For instance, if your decision was refused because of some kind of inadmissibility issue such as misrepresentation, it is likely that you may not enjoy the right of appeal.
This is not to say that denied applications under the spouse or common-law partner class cannot be challenged. It is possible to challenge such refusals but not under the right to appeal. It may be through a request for judicial review or some other means besides the right of appeal. Even so, there is no guarantee that the person inside Canada whose spousal sponsorship application has been refused will have an opportunity to appeal or challenge the refusal.
Generally, there are not many other significant distinctions between the spouse or common-law partner class and the family class. The processing times are typically the same. While there is a requirement that the Canadian citizen or permanent resident sponsoring their partner or spouse lives inside Canada, a Canadian citizen who is sponsoring their non-Canadian spouse may be able to live outside of Canada at the point in time when they are sponsoring. However, there needs to be an understanding that they will be living inside Canada once the sponsorship is complete.
To sum it up, it is important that you understand the difference between the two classes of spousal sponsorship applications to enable you to identify the appropriate class for you to file your application. Ultimately, the differences arise depending on whether or not the spouse or partner being sponsored is physically inside or outside Canada at the time of the spousal sponsorship application.
Let Us Help
Should you wish to sponsor your spouse or partner to become a Canadian permanent resident, we are available and happy to assist you with your spousal sponsorship applications.
If you have any questions concerning the two classes of Canadian spousal sponsorship applications or if you need any professional advice on the same, please feel free to reach out to us.
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