Should I sponsor my spouse using the In-Canada Sponsorship or Family Class (Overseas) Sponsorship Application?
This is one of the questions that people ask most frequently, and sometimes the answer is not always obvious. There is a lot of misinformation out there, and I even fell victim to it myself back when I was sponsored to Canada in 2008 (long before I was an immigration consultant!). Had I been in a less privileged position, I might have found myself locked out of Canada.
Here are some guidelines to help you make the best choice.
|Applicant Eligible for Work Permit
|Applicant must reside in Canada
|Applicant can travel as much as they want
|Interview almost never convoked
|Interviews can be frequent / Applicant will have to return to country of nationality for interview if in Canada
|No right of appeal
|Right of appeal per s.63 of IRPA
|Applicant cannot be deported for lack of status once application received by IRCC
Is your spouse or common-law partner in Canada, or can they get here?
To apply for PR under the In-Canada Class sponsorship, your husband, wife, or partner needs to be physically present in Canada – no exceptions. For this reason, the In-Canada Class application is used most frequently by people who do not need a visa to enter Canada such as Americans, Australians, and most Europeans.
If your spouse needs a visa just to enter Canada, this is a separate and difficult application on its own.
If it is not possible for your spouse to come to Canada, then Family Class sponsorship is your only choice.
Is your spouse OK with living primarily in Canada for the duration of the application processing time – approximately 8 – 12 months?
There are a lot of ugly rumours about In-Canada Class sponsorship applicants not being allowed to leave Canada while their application is in process. Here is the truth: Yes, your spouse is required to live in Canada to be eligible for In-Canada processing. But this does not mean that they are unable to leave.
In-Canada Class applicants are allowed to travel outside Canada on vacation, for work, to visit family, or for any other reason. They just should not travel outside Canada too frequently or remain outside Canada for too long.
There is no set number of days that applicants need to be in Canada – this is at the discretion of immigration officers. However, if an officer does not allow the applicant to re-enter Canada for any reason, then the In-Canada Class application will end up being refused.
*If the applicant is on implied status and they leave Canada, they will lose implied status and their ability to work in Canada until their new work permit is issued if they were on implied status as a worker.
**If the applicant is out of status in Canada (has no legal status due to an overstay or other reason), they should not leave Canada at all during the processing of their sponsorship application. Once an In-Canada Class sponsorship application is received for a person who is out of status, they cannot be asked to leave Canada solely because they are out of status. People who are out of status should generally only use the In-Canada Class.
Are you and your partner already married?
You do not have to already be married for your spouse to enter Canada and for you to sponsor them – you can get married in Canada, and it’s easy! You are not required to leave Canada to get married or to enter Canada as a married couple in order to do In-Canada Class spousal sponsorship.
If your spouse is inside Canada or can get to Canada, and they are comfortable living in Canada until a decision is made, then In-Canada Class is frequently the best option. However, sponsorship applicants are still allowed to use the Family Class application even if they are physically present in Canada.
An In-Canada Class sponsorship application allows applicants to get a 2-year open work permit while their application is in process. In-Canada Class sponsorship applicants also very, very rarely have to attend an in-person interview with an immigration officer – depending on which country the applicant is from, interviews can be costly and also cause a large increase in processing times.
If restrictions on travel are not practical for the applicant, then Family Class is usually the better option. Even if the applicant is in Canada, with the Family Class sponsorship application, they can travel as much as they need to. Family Class applicants still need to meet the requirements to be let back into Canada, but the application will not be refused if the applicant is refused entry to Canada for some reason.
Family Class sponsorship also allows the right of appeal if the application is refused – this is not allowed with an In-Canada Class application. However, applicants also have the right to submit a new application in both cases.
Is your partner out of status (illegal) in Canada?
If the applicant for PR is out of status in Canada, such as having overstayed on a visa or after their work permit expired, then you need to use the In-Canada Class to sponsor them for two reasons:
- Once the application is received by IRCC, the applicant cannot be deported for being out of status in Canada
- Applicants without status in Canada can still be granted PR, whereas applicants under other streams for PR (such as the Family Class) must have valid status in order to become a permanent resident.
See our guide for sponsorship of out of status sponsorship applicants HERE.
There is no one-size-fits-all answer to whether you should choose In-Canada Class sponsorship or Family Class sponsorship. One is not better than the other. You simply have to choose the one that is right for your family.
Contact us for more information about both options and how the rules will apply to your case.