Spousal Sponsorship Appeal Cases
When your spousal sponsorship application is filed as a Family Class application (or overseas application or overland application), Immigration Refugee Citizenship Canada (IRCC) may refuse your application if it does not reasonably convince IRCC that your marriage/marriage-like relationship is genuine.
It is critical to remember that this appeal process is adversarial – in other words, IAD is not necessarily to assist you and your spouse, but to assess if the refusal was reasonably made by IRCC. You must be cautious in proceeding in IAD, knowing that you are fighting to convince IAD that IRCC has made an error in refusing your application after all.
Let’s look at the general information about Spousal Sponsorship applications first.
This process is based under one of our main immigration policies called “Family Reunification”.
A spousal sponsorship is a legal process that allows the spouse of a Canadian citizen (who may not reside in Canada, but must have intention to reside in Canada with his/her spouse) or a permanent resident (who must reside in Canada) to live in Canada permanently.
The person who wishes to sponsor their spouse must meet sponsor eligibility requirements, such as an age requirement (over 18 years of age or older), have immigration status in Canada (a Canadian citizen or permanent resident), or others.
The spouse seeking to immigrate must be (1) legally married to the sponsor and must not be living in a conjugal relationship with another person; (2) in a common-law spousal relationship – residing with a sponsor for more than 12 months continuously under the same roof; or (3) in a conjugal relationship. The couple may also need to provide an affidavit of their conjugal relationship if they have been together for more than 12 months/year.
To be considered legally married, you must be married to your spouse anywhere in the world that Canada recognizes as a legal jurisdiction and have gone through proper marriage procedure. Additional requirements must be met, such as:
- Residing in the same home continuously for more than 12 months. There are extenuating circumstances that can be accounted for, such as job location or education.
- Do you act like you are married? Keeping finances together between spouses will help produce evidence that you are married, as well as if you have paperwork in both of your names, such as their vehicle insurance, common possessions, adopting a pet (dog or cat for example) together.
- Having a biological or adopted child together can be a significant factor to show the marital relationship, but it is not the only or deciding factor to determine the genuineness of marriage.
Conjugal partners can also be defined and acknowledged as a marriage. The Government of Canada defines a conjugal partner as:
- A person who is living outside Canada (while Sponsor is residing in Canada),
- In a conjugal relationship with the sponsor for at least one year, and
- Could not live with the sponsor as a couple because of reasons beyond their control (e.g. legal barriers such as a bar to same-sex relationships, religious differences, or sexual orientation).
This term applies to both opposite and same-gender couples.
What Is Looked at When Your Marriage Application is Sent In?
Immigration Refugee Citizenship Canada may assess your marriage through five different perspectives:
- Did you meet the legal requirement?
- Does your finance appear to be jointed as a couple? Examples can be joint visa, insurance, documents that show that you share a lot of (if not all) financial matters as a couple.
- Do your social circles see you as a couple? Do you act like a couple in public? Your family and friends can be your witnesses to your marriage in public.
- Does your relationship history show the strength of your relationship? How long did you have your relationship? How did your relationship start and carry out until now? Is it reasonable in such history to be where you are today?
- Do you have something unique or identifiable as a couple? Every couple has their unique reason to be together; it may include romantic love, but it is more than that – personality, common interest, common occupation, similar or different family background, sharing a difficult experience (natural disaster, mission, accident, illness, and so on) or some psychological reason for you to be together. After all, the reason you are together as a couple may demonstrate to immigration Canada to imagine your relationship clearly in their mind without meeting you in person; in other words, it’s all about providing as much detail as possible about your relationship.
Now, after submitting your spousal sponsorship application, you have received a refusal to your sponsorship. Let’s review regarding spousal sponsorship appeal process at IAD. Please note that you only have such sponsorship appeal right as a sponsor, if you file your spousal sponsorship application via Oversea application or Overland application or Family Class application. If you filed In-Canada spousal application, you do not have a right of appeal at IAD.
What Can I Expect regarding Sponsorship Appeal?
The process for a sponsorship appeal is to follow the steps below:
- The sponsor is required to file a notice of appeal to Immigration Appeal Division (IAD) within the specific timeframe from the date of your refusal letter;
- Sponsor receives a record of your file from IAD so that you can assess for yourself whether IRCC’s decision to refuse your application was reasonable;
- If you decide to proceed, you and Sponsor need to gather evidence to support your case; AND/OR
- Present your evidence in front of an independent panel, which will then decide if your application should be granted.
Applying for a Spousal Sponsorship Appeal
The sponsor will need to file an appeal to IAD (you can do that here). By completing this, you will inform IRCC that you and your spouse are disputing the refusal to your sponsorship application. IAD will then provide you with a record of your file, including the specific reasons for the decision to reject your sponsorship application. From here, you can now begin your case to appeal to have your spouse accepted.
Where will my Spousal Sponsorship Appeal Hearing Take Place?
The Spousal Sponsorship appeal hearings will take place in various locations for IAD, such as Toronto, Ontario, or Vancouver, British Columbia. It is based on where you as a sponsor are located – the IAD will be the closest location to your residential address.
After your hearing, the member who presides over your appeal case at the IAD may provide the decision right away at the end of your hearing; or the member may provide his/her decision after the hearing. However, such written decision after the hearing must be provided within 90 days from the date of hearing. If you do not receive such decision within 90 days, you can contact the board to find out the status of your case. The board will also give you an estimate as to when it should be completed. This estimate is done as a courtesy and can change.
Your appeal may be rejected even if you thought it was strong enough to work in your favour.
Before undertaking to pursue any kind of appeal or hearings, we highly recommend you to seek out help from a qualified lawyer who is familiar with the process to determine what you can do next. You don’t have to go through this alone.
Who Will Be at My Appeal Hearing?
A sponsor who is applying for a spousal sponsorship appeal will be expected to attend an in-person hearing. However, with the COVID-19 restrictions, IAD is currently conducting their hearings online via the Microsoft meeting platform or other online facilities. Therefore, it is critical for anyone involved in IAD to have such computer/internet facilities to work effectively.
The foreign national spouse has the opportunity to attend this hearing as well, but they are not required to testify. However, since many spousal cases get refused after an in-person interview at visa posts, it is critical for the foreign national spouse to provide sufficient information to dispute or to clarify what happened at such in-person interview at the hearing.
Sponsors and foreign national spouses may also have your lawyer with you to help you at your hearing or with your hearing preparation from the beginning. It is always important to assess your chance of success in the spousal appeal, since you may not be allowed to re-file your sponsorship if your sponsorship appeal is denied – if your appeal is refused after the hearing.
Can I bring witnesses?
Yes, you can bring witnesses to your appeal hearing, but they should be prepared to answer questions at the hearing and you need to make sure that IAD knows of your witness list to facilitate their online attendance currently.
What If I Cannot Attend My Appeal Hearing?
There is a chance that IAD may grant you a postponement if you cannot attend your appeal hearing. There are cases where this can be done due to medical or compassionate reasons as well as those where the applicant lives outside of Canada.
If you cannot attend your appeal hearing, you should at least try to submit your information in a written format – a sworn affidavit as your written evidence. Again, it is critical to have a good professional lawyer who can assist you in such situations in advance.
How Will My Spousal Sponsorship Appeal Be Decided?
The IAD will consider whether the spouse is indeed a spouse. They will investigate if the relationship was genuine and not for immigration purposes. The member will also consider any humanitarian and compassionate grounds, along with any additional information or evidence about the relationship from both sponsor and foreign national spouse, such as:
- Did you have a shared life as a couple?
- How long did you know each other before your marriage – dating, engagement, or general courtship?
- How were you connected – emotionally or psychologically?
- Did you have any children – biological or adopted – together?
- What are the reasons for refusing your application by IRCC?
- What is your current status in Canada if any?
- If both of you are in Canada, what kind of settlement have you established, such as employment, education, community services, and so on?
- Did you submit additional documentation that may be beneficial to the board’s decision-making process?
Do I have to Provide any Documents for my Hearing?
You are not required to provide anything other than your marriage certificate when appearing before the Immigration Board of Canada for a sponsorship appeal hearing. However, your marriage certificate did not help you in the first place to establish the genuineness of your marriage in the first place. Therefore, going into the hearing without any support documents is somewhat illogical for your winning chance.
You must have sufficient evidence to show IAD that IRCC made an error in their refusal or made an unreasonable decision to refuse. Therefore, it is critical to build your case with as much documented evidence and witnesses (if available) for your hearing. If you want to prepare some documents for your hearings, we strongly recommend that you speak with a qualified immigration lawyer before doing so. You can contact us here to do so.
In some cases, the IAD may ask you to provide additional documents if they feel that it is necessary. If this happens, check which type of document you should bring with you on the day of your hearing. These documents will help strengthen your case and make a strong argument for why your spouse should be granted permanent residence in Canada.
What are the Legal Fees for Sponsorship Appeals?
Legal fees are determined on a case-by-case basis as reasons for refusing play heavily into the amount of work required.
What can Increase my Chances of Success?
You can increase your chances of success by understanding the legal requirements for winning your case at IAD. It is important to recognize the issues that triggered your refusal and see if you can rectify them in advance so that IAD would take that into careful consideration.
If you cannot provide convincing evidence at the hearing, and/or recognize that you have missed many necessary or important supporting documents for your initial application, and/or admit that you or your foreign national spouse are not strong witnesses in the first place (if you are not good at giving testimonies at the court, for example), re-filing your application with stronger evidence to support your spousal relationship is always another option to consider as an alternative. Furthermore, it is also helpful to research the country you are from and its current socio-political situation. It would help if you also had a thorough understanding of what is expected in regards to living in Canada.
Another option is to request an Alternative Dispute Resolution (ADR) process before going to the full hearing. If you as a sponsor may explain or rectify some of the concerns in the refusal letter – for example, a lack of marriage can be fixed by getting married, IAD is open to reconsidering your case and consent to your sponsorship application to be re-opened at the visa post to continue processing your initial sponsorship application. Again, it is critical for you to seek appropriate legal assistance from qualified lawyers in advance to assess if your case can be dealt with via the ADR process effectively because not all cases can be dealt with this way.
We are dedicated to ensuring that all couples who wish to marry have the opportunity to do so. We also provide consultations for those seeking sponsorship or immigrant status with Canadian citizens or permanent residents. Roggemann Immigration Law can help you navigate through how to sponsor your spouse successfully including spousal appeals if necessary. We are here for anyone who wants to better understand their rights or options in this process.
It’s important to note that an appeal process might not be the best option for you. Be sure to speak with us about the right choice for you regarding Spousal Sponsorship Appeal Hearings.