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Can I sponsor my spouse or common-law partner even if they are illegal in Canada?
YES! If a person who is a Canadian citizen or permanent resident has a spouse or common-law partner who is out of status in Canada, they can still be sponsored using the In-Canada Class – also known as Inland Sponsorship.
Please note that this policy does not apply to spouses or partners who are not currently residing together inside Canada – the purpose of the policy is to facilitate family reunification, which is formally written as one of the Objectives of Canadian immigration law.
Inland Spousal Sponsorship Application for Out of Status Applicants
In order to be granted permanent residence under the In-Canada Class, the applicant must:
- Have been included in a spousal or common-law sponsorship application under the In-Canada class – NOTE: if the sponsor is found ineligible to be a sponsor, the application will be refused
- Be in a bona-fide relationship with the sponsor
- Live together with the sponsor in Canada
Applicants for spousal sponsorship under the In-Canada Class become removable from Canada if the sponsorship application is refused. Because of a lack of options to stay in Canada, as well as having stayed illegally in Canada, it is even more important than usual for the applicant to prove that they are in a genuine relationship with their sponsor and have not entered into a marriage of convenience just to remain in Canada.
It is also extremely important for out of status applicants to ensure that their application is completely free of mistakes or omissions which could cause the application to get refused. This is because the applicant is only safe from deportation from Canada if the application is actively processing – if the application is returned due to a missing document or a tickbox which was left blank, the applicant can be removed from Canada.
Can my spouse without status be deported from Canada?
Once the In-Canada Class spousal sponsorship application has been received and gone into process with IRCC, the applicant for PR through sponsorship under the In-Canada class cannot be removed from Canada for being out of status. Until the application has gone into process, the applicant can still be removed from Canada for being out of status, such as if the application were returned for being incomplete.
There are several things to keep in mind about this. The rule preventing the removal (deportation) of out of status applicants under Inland Sponsorship comes from something called a “Public Policy”, which is not the law itself but is a guideline issued by the Minister that impacts how the law is applied.
This particular public policy has been in place for many years and the deferral of removal of an applicant once the application has been received is legally rooted in Humanitarian and Compassionate grounds (section 25 of the Immigration and Refugee Protection Act).
The most important thing to understand about this Public Policy is that it only applies to applicants who are out of status in Canada, and not applicants who are inadmissible for any other reason (see below). Applicants who are inadmissible to Canada for any other reason besides being out of status can still be deported from Canada regardless of having submitted an Inland spousal sponsorship application.
Do my partner and I need to be married to submit a sponsorship application?
No – under Canadian immigration law, partners who are legally married are equal to common-law partners. However, just living together is not enough to meet the legal threshold for common-law partnership. See our guide for more info on common-law partnership for immigration HERE.
What is a lack of status?
A lack of status inside Canada does not only mean having overstayed as a visitor or past the expiry date of a work permit. Lack of status (for the purpose of this public policy) includes any person who has:
- overstayed a visa, visitor record, work permit or study permit
- worked or studied without being authorized to do so by law, including working past the validity of a work permit or students working fulltime without being on a co-op
- entered Canada without the required visa or other document required, such as any person who has entered Canada illegally
- entered Canada without a valid passport or travel document
Please note: applicants who are out of status and applying for PR in Canada through the In-Canada class are required to have a valid passport in order to become a permanent resident. The sponsorship application can be submitted if the applicant’s passport is expired, but the applicant MUST get a new passport in order to become a PR. If someone is unable to get a new passport, then they will have to apply for permanent residence through Humanitarian and Compassionate grounds.
What is not a lack of status?
Other sources of inadmissibility are not covered by this public policy and applicants who are inadmissible for reasons other than a lack of status may be removed from Canada at any time. Other reasons for inadmissibility which are not a lack of status include:
- Criminal conviction inside Canada
- Arrest, criminal charge, or having committed an illegal act outside Canada which is also illegal in Canada
- Being under removal order or facing enforcement proceedings
- Having a health condition that is dangerous to public health and safety
- Being inadmissible for any other reason such as security, or human or international rights violations
Applicants who are inadmissible for other reasons, will very likely need a Temporary Resident Permit in order to remain in Canada despite being inadmissible.
Can other people become permanent residents even if their status has expired?
Generally speaking, almost every immigration program in Canada will not let applicants for permanent residence finalize their application and become a PR from inside Canada unless they are currently in valid status. This is because, once someone’s status in Canada has expired, they are now considered “inadmissible” to Canada, meaning that they cannot be granted further immigration status such as a work permit or PR.
Being in valid status means that the applicant is currently inside Canada legally, as a visitor, worker, or student. But what happens if an applicant’s status has already expired? In some limited cases, a person without legal status in Canada can still become a PR without having to leave Canada, such as through the In-Canada spousal sponsorship or Humanitarian and Compassionate grounds PR applications.
Administrative Deferral of Removal
Applicants who are eligible for this public policy will not be removed from Canada once their inland spousal sponsorship application has gone into processing. However, some applicants are not eligible for the public policy and can still be removed, meaning that their removal will not be deferred. This includes applicants who:
- Are inadmissible for security, human or international rights violations, serious criminality and criminality, or organized criminality;
- Are excluded by the Refugee Protection Division under Article F of the Geneva Convention;
- Have charges pending or in those cases where charges have been laid but dropped by the Crown, if these charges were dropped to effect a removal order;
- Have already benefited from an administrative deferral of removal emanating from an H&C spousal application;
- Have a warrant outstanding for removal;
- Have previously hindered or delayed removal; and
- Have been previously deported from Canada and have not obtained permission to return.
Contact us if you are out of status but in a relationship with a Canadian citizen or permanent resident.
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