GUIDE TO FAMILY REUNIFICATION IN CANADA

Transcription

1 GUIDE TO FAMILY REUNIFICATION IN CANADA TABLE OF CONTENTS General Information... 2 Context Canadian law and the importance of keeping families together... 2 General requirements to bring your family to Canada... 2 Eligibility Who is a family member?... 2 Different methods of family reunification... 3 Family Class Sponsorships... 3 Sponsorship eligibility requirements... 3 Low Income Cut-off... 3 Undertaking and sponsorship debt... 4 Co-signors who can co-sign?... 5 Which of my family members can I sponsor?... 5 Parents and grandparents... 5 Marriage, common-law and conjugal partnerships... 6 Changes to spousal sponsorship... 7 Dependent child... 7 Lock-in age of dependent children... 8 Adoptions and orphaned relatives... 8 Processing priorities... 9 Other Family Reunification Processes... 9 Refugees and Protected Persons processing family members... 9 Live-in Caregiver program Inland spousal sponsorship Family members of Humanitarian and Compassionate grounds applicants in Canada Problems to Watch For Proving identity and relationship Medical requirements inadmissibility on health grounds Criminal and security requirements Misrepresentation Lying or not telling the full truth Declare all family members including non-accompanying family members Possible solutions... 14

2 GENERAL INFORMATION Context - Canadian law and the importance of keeping families together In Canada, immigration and refugee law is set out in the Immigration and Refugee Protection Act. Family unity is one of the objectives of this law. This means that immigration officers are supposed to try very hard to keep families together and to avoid separating them. Citizenship and Immigration Canada is the government agency that handles immigration applications. Their policies and procedures acknowledge that separation from family members can make it harder for families to successfully establish themselves. They also acknowledge that separation can lead to psychological/emotional troubles such as loneliness, guilt for leaving family members, separation anxiety, loss of support network, inability to focus and get on with a new life, breakdown in relationships, depression and mental health problems. General requirements to bring your family to Canada In order for family members to join you in Canada, they (and their family members) must: be eligible for sponsorship (see below); prove their identity, age and relationship among themselves and to you, their sponsor; not be inadmissible for security, criminality or medical reasons (this applies to their family members as well); and have valid passports or travel documents. Eligibility - Who is a family member? The question "who is a family member?" is usually easy to answer. However, the law defines 'family member' more narrowly than most of us might. Under Canadian law, members of the family class include: spouse, common-law or conjugal partner; dependent child (no matter which parent is supporting the child, and also including children adopted overseas); father or mother; grandfather or grandmother; orphan under 18 who is the sponsor's sibling, niece/nephew, or grandchild; child under age 18 to be adopted in Canada; one relative, if there is no member of family class who is Canadian citizen or permanent resident or who could be sponsored. 2

3 Different methods of family reunification There are a number of different ways that family can be reunited under Canadian immigration law. There are some reunification methods that are created especially for: - Refugees and Protected Persons - Live-in Caregivers - Inland Spousal Sponsorships - Family members of Humanitarian and Compassionate grounds applicants in Canada FAMILY CLASS SPONSORSHIPS Sponsorship eligibility requirements In order to be able to sponsor someone you must: be a Canadian citizen or permanent residence be 18 years or older not be on social assistance unless it is for a disability You cannot be a sponsor or co-signer if you are: a permanent resident under a removal order; in any kind of prison or detention centre (unless you are on parole, probation or serving a suspended sentence); convicted of a sexual offense; or an offense against a family member (if you were convicted of either of these offences and it has not been five years since you completed your sentence, you cannot sponsor unless you get a pardon, get finally acquitted, or show at least five years of rehabilitation); in default of spousal or child support payments ordered by a court; in default of debts owed under the Immigration and Refugee Protection Act; an undischarged bankrupt; receiving social assistance (unless it is for a disability); in default of a previous sponsorship undertaking. Low Income Cut-Off Please see Table 3 ( for the most recent calculation of the low income cut off. Sponsors of dependent children and of spouses, common-law partners or conjugal partners (unless 3

4 they have dependent children who have dependent children of their own) do not have to meet financial requirements, but they must be able to provide for the basic necessities of the people they are sponsoring. This is the government's way of making sure that the sponsored family members do not need social assistance. Applicants (sponsored family members) may be refused for financial reasons if they cannot support themselves and their dependent children and there are no adequate arrangements for their care and support. Immigration officers should consider the sponsor s financial situation and willingness to assist, as well as the financial situation or employment prospects of the applicant family member. Undertakings and sponsorship debt The duty to care financially for sponsored family members is known as an undertaking, a binding contract between sponsors and co-signers and the government. Sponsors and co-signers promise to provide the sponsored person with basic requirements from the day they enter Canada until the end of the specified period. They also accept the obligation to repay to the government any social assistance payments made to or on behalf of the sponsored person during this period. Even if your circumstances change, for example, if there is marital breakdown, separation, divorce, family rifts, unemployment, change in financial circumstances or if the principal applicant dies leaving behind accompanying family members, the undertaking does not end. You will still be financially responsible for providing for the basic needs of those people you have sponsored. Length of the undertaking: This depends on which family member is being sponsored. Spouses and partners - the undertaking is 3 years. Dependent children - the undertaking is ten years or until the child turns 25 years old, whichever comes first. Parents and grandparents - the undertaking is currently 10 years, but this will be extended to 20 years as of January 2, Date the undertaking begins: The undertaking begins on the day the sponsored person becomes a permanent resident. Default of an undertaking: Sponsors and co-signers will be in default of their undertaking if the person they sponsor starts to receive social assistance during the period of the undertaking (see above for length of undertaking). Unless the government is repaid the sponsors and co-signers will no longer be able to sponsor any other family members. 4

5 Co-signers - who can co-sign? A sponsor's spouse or common-law partner may co-sign an undertaking to help meet the minimum necessary income requirement by pooling resources. However, common-law relationships must have met common-law requirements prior to co-signing (see definition of common-law relationship). Other family members may not co-sign. You should only have a co-signers if the financial requirements apply or if the sponsor cannot meet the income test. Co-signers: must sign the undertaking and the Sponsorship Agreement to have their income considered; must meet the same requirements and are subject to the same bars as the sponsor; assume the same obligations as the sponsor and become jointly and severally or solidarily liable if there is default; cannot co-sign when sponsorship involves a spouse, common-law or conjugal partner; should not co-sign for a child; are not permitted for sponsorship in the spouse or common-law partner in Canada class. Which of my family members can I sponsor? Unfortunately, just because someone is in the family member does not mean you can sponsor them. The government limited sponsorships to family class members, which includes spouses, common-law partners, conjugal partners, and dependent children. Brothers and sisters can be sponsored only if they are orphaned, under 18 years old and unmarried or not in a common-law relationship. Similarly, orphaned nieces, nephews and grandchildren can be sponsored if they are under 18 years and unmarried or not in a common-law relationship. Parents and grandparents can be sponsored next year, beginning January 2, Parents and Grandparents The Super Visa: A few years ago, the Canadian government temporarily stopped accepting permanent residence sponsorship applications for parents and grandparents. At that time, they introduced the Super Visa. Unfortunately, the Super Visa only gives temporary status in Canada and the requirements to qualify under this program place a lot of emphasis on income, so many low-income people will not be able to use this program to reunite with their parents or grandparents. The Super Visa is valid for 10 years and needs to be renewed every 2 years. 5

6 Regular Sponsorship of Parents and Grandparents is Being Reintroduced: The government recently announced that it plans to reopen the sponsorship program for parents and grandparents on January 2, Unfortunately, the financial requirements are high and are likely to prevent many people from being able to qualify to sponsor their parenets or grandparents. To be eligible to sponsor a parent or grandparent, you must: meet the minimum necessary income to be a sponsor (from January 2, 2014, this minimum amount will increase by 30%); insure your parents/grandparents for one year of health coverage (from January 2, 2014, this will increase to three years instead of one); undertake (be financially responsible) to provide for basic needs of your parents or grandparents and any of their accompanying family members for 10 years (from January 2, 2014, the length of undertaking will be extended to 20 years instead of 10). Marriage, common-law and conjugal relationships In order to be recognized as a married couple by the Canadian government, a marriage must be legal in the country where the couple got married and under Canadian law. For example, Canada does not recognize marriages between certain blood relatives, and the Canadian criminal law prohibits people from being married to more than one person at a time. Common-law relationships: to be considered common-law partners, you must have lived together continuously for at least one year. This includes same-sex partners. Common-law partners should be able to demonstrate a shared life together, including financial, physical, and emotional interdependence. Conjugal relationships: are relationships lasting at least one year between the sponsor someone living outside Canada. A conjugal partner can be in an opposite-sex or same-sex relationship. The word conjugal does not mean sexual relations only. It indicates that there is a significant degree of attachment between two partners which may include the following characteristics: shared shelter (e.g., sleeping arrangements); sexual and personal behaviour (e.g., fidelity, commitment, feelings towards each other); services (e.g., conduct and habit with respect to the sharing of household chores) social activities (e.g., their attitude and conduct as a couple in the community and with their families); economic support (e.g., financial arrangements, ownership of property); children (e.g., attitude and conduct concerning children); society's perception of the two as a couple. All conjugal relationships, must demonstrate: mutual commitment to a shared life; 6

7 exclusiveness a person cannot be in more than one conjugal relationship at a time; intimacy commitment to sexual exclusivity; interdependence physically, emotionally, financially, socially; permanence long-term, genuine and continuing relationship; Changes to Spousal Sponsorship Conditional Permanent Residence: It used to be that if you sponsored your spouse or conjugal partner to Canada, they would get permanent residence. Recently the government has been very concerned with marriage fraud (marriages of convenience/immigration purposes) and so they introduced conditional permanent residence for spouses coming to Canada. This condition applies to couples who have been married for less than 2 years and do not have any children together. Under this condition, spouses who are sponsored into Canada must live with their spouse for two years before they get permanent residence. In the meantime, they will still have access to all the benefits of permanent residence but they run the risk of having that status taken away from them if the government believes that the marriage was not genuine or only for immigration reasons. There was great concern that this might force people to stay in bad relationships if the sponsor became abusive once their sponsored spouse came to Canada. The government created a hotline for abused spouses to call. In these cases, where there is abuse, the spouse will not lose their status if they leave their abusive partner. Unfortunately, that only applies to spouse who comes to Canada. If you sponsor someone into Canada and that person becomes abusive, the hotline is not for you. As well, you will still be financially responsible for your sponsored spouse. Five-year wait time: Another big change is regarding time limits on when you can sponsor a spouse. This limit is specifically for people who came to Canada as sponsored spouses. If you came to Canada as a sponsored spouse but then divorced or separated from your spouse, you must wait five years before you can sponsor anyone else to Canada as your spouse. This rule applies to all sponsorship applications submitted after March 2, Dependent child The term dependent child refers to a person's biological child, if that child has not been adopted by someone other than the spouse or common-law partner of the parent, or who is the adopted child of the parent. A dependent child must be: a) less than 22 years old and not married or in a common-law relationship, b) older than 22 and continuously enrolled in and attending a government recognized post- 7

8 secondary institution, OR c) 22 years old or older and has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition. PLEASE NOTE: as of January 1, 2014 this definition of "dependent child" will change. Specifically, the age limit will be reduced to 18 years. This would mean that your child, or your spouse/common-law partner/conjugal partner's child would have to be 18 years old or younger to qualify for sponsorship as a dependent child. Additionally, you will no longer be able to sponsor a child who is a full-time student if they are 19 years or older. This rule will take effect on January 1, Lock-in age of dependent children Because immigration applications take a long time to process, the government uses what is known as a "lock-in" date for applications. This is the date that the application is received at appropriate Citizenship and Immigration Canada office. The effect of the "lock-in" date is that, for the purpose of the immigration application, the dependent child remains the age that they were at the time the application was received. This is why it does not matter if a child turns 22 after the application is submitted. What matters is whether they were less than 22 years old when the sponsorship application is received by Citizenship and Immigration Canada. Please note that on January 1, 2014 the government's changes to the definition of "dependent child" begin to apply. Sponsorship applications submitted after this date must be received by Citizenship and Immigration Canada before the child turns 19 years old. Adoptions and orphaned relatives Adoptions include adoptions completed abroad and intentions to adopt in Canada. Sponsors must state whether the child is already adopted, to be adopted abroad or to be adopted in Canada. Sponsors must also state the country where the child is living, which may not always be the same as the child s country of citizenship. If the child is not yet identified, sponsors must state on the sponsorship application from which country they intend to adopt and provide the name to the visa office and provincial adoption authorities as soon as the child is identified. Adoption procedures must be followed in accordance with provincial adoption laws and immigration officers will proceed with applications in accordance with those laws. 8

9 Orphaned relatives: Canadian citizens and permanent residents may sponsor an application for permanent residence for their orphaned relative who is less than 18 years old. Processing priorities High Priority: Applications for permanent residence from spouses, common-law partners, conjugal partners and dependent children are the government's highest priority, along with children to be adopted. Normal Priority: All other members of the family class. OTHER FAMILY REUNIFICATION PROCESSES Refugees and Protected Persons - processing family members The government processes applications from family members of refugees in a different way than they process applications from people in in the family sponsorship class. These applications are meant to be processed faster than regular family class applications because there is an understanding that these families need protection. However, family members of refugees and protected persons are not considered refugees. They are also not the same as sponsored family members. They fall under an entirely separate "DR2" category. The first step is always for the refugee or protected person to apply for permanent residence. Fortunately, the government removed the restriction that refugee claimants apply for permanent residence within 180 days of getting their claim approved. Refugees are now free to apply for permanent residence whenever they want - there is no time limit on when they can apply for permanent residence. In-Canada refugees or protected persons get help in reuniting with their families through exemptions from certain legal requirements and special programs. For example, unlike regular family sponsorships, they do not need to meet any income levels to bring family members to Canada. There are no undertakings for refugees/protected persons, meaning that they are not financially responsible for their family members if those family members have to receive social assistance once they arrive in Canada. Refugees/protected persons and their family members also do not need to pay the Right of Permanent Residence fees, and they have access to concurrent processing and the one-year window of opportunity to help speed up the reunification process. These programs and certain other legal exemptions are described in further detail below. 9

10 Concurrent processing Concurrent processing is a system that allows the applications of overseas family members to be processed at the same time as the permanent residence application of the refugee or protected person in Canada. This helps speed up family reunification because the principal applicant (refugee/protected person) does not have to wait until they get permanent residence before applying for permanent residence for their family members. However, family members can still be sponsored at a later date, after the principal applicant has obtained permanent residence. Regardless of the process you choose, all family members must still be listed on the principal applicant s original application, whether they are accompanying or not because they must be assessed for eligibility and admissibility. Unfortunately with this process, there is no access to the Immigration Appeal Division. If an application is refused, you can only ask the Federal Court to look at the decision but they do not have power to change it. They can only ask another immigration officer to review the application and make a new decision. One year window of opportunity This applies to refugees in Canada or to people who were resettled or sponsored as refugees to Canada. These individuals benefit from the one year window of opportunity, which gives them one year to pay the application fees and apply for concurrent processing of their family members' permanent residence applications. The one year begins from from the time that they receive permanent residence in Canada. Once that one year has passed, the family members' applications will be processed regularly, as sponsorship applications. Only family members who were declared on the refugee/protected person's original permanent residence application will be able to benefit from the one year window. These family members must have been family members at the time the application was submitted, and they must continue to meet the definition of family member. Refugees eligible for expedited processing Refugees whose cases are eligible for expedited processing may include, but are not limited to: victims of torture or other trauma; women meeting the definition under the Women-at-risk Program (AWR); non-accompanying (i.e., following) family members under the One-year window of opportunity provision; non-accompanying family members of a principal applicant who have been identified as needing urgent protection. Exemptions: Inadmissibility for health reasons Protected persons, and their family members (spouse, common-law partner or dependent child) in Canada and abroad, can be granted permanent residence even if they have a medical condition that 10

11 would create an excessive demand on health or social services. However there is no exemption if the medical condition makes them a danger to public health or security. Exemptions: Misrepresentation Refugees and protected persons cannot be found inadmissible for misrepresentation. Their family members, however, can be found inadmissible for this reason, which results in refusal to allow them to enter Canada for two years. Live-in Caregiver Program Concurrent processing applies to this class. This means that when the live-in caregiver applies for permanent residence in Canada, she or he can request that their family members' permanent residence applications be processed at the same time. It is not necessary for Live-in Caregivers to get permanent residence before beginning the application process for their family members. However, it is also possible to sponsor family members at a later date. Persons who come to Canada under the Live-In Caregiver Program (LCP) may qualify to apply for permanent residence from within Canada, once they can prove that they have worked full time as a live-in caregiver for a total of two years within the first three years of arriving in Canada under the program. Inland Spousal Sponsorship This category is for people who marry or are in common-law relationships, where one of the spouses/partners has temporary or no status in Canada. To apply under this category as spouses or common-law partners, applicants must have some kind of valid temporary resident status when they apply for permanent residence. However, if the only problem an applicant faces is lack of status and they have no medical, criminal or security problems, they could still be granted permanent residence. Additionally spouses and common-law partners cannot be found inadmissible for excessive demand on health or social services when the sponsor meets the minimum necessary income. These applicants also have the ability to include family members here and abroad on their applications (concurrent processing). However, there are no exemptions for criminal and/or security problems, or if the person is considered a danger to public health. 11

12 Family members of Humanitarian & Compassionate grounds applicants in Canada Humanitarian and compassionate grounds applicants in Canada cannot benefit from concurrent processing of their family members abroad. When immigration officers assess whether someone applying on H&C grounds in Canada is admissible, they also consider whether overseas family members are admissible. Unfortunately, the law states that if the principal applicant has an inadmissible family member living either in Canada or abroad, the principal applicant is also inadmissible. In other words, if you have an inadmissible family member, it could mean that you are also inadmissible. Overseas family members are therefore required to do medical, background and criminal checks. Exemptions: In exceptional circumstances, immigration officers can grant exemptions from the requirement that family members be examined if they are satisfied that: the family member is unavailable to be examined; or the requirement would be unreasonable in light of the circumstances of the case. PROBLEMS TO WATCH FOR Proving identity and relationship Family members must provide evidence that proves their identity and relationship to their sponsor and to their family members. If you cannot prove the relationship, that person will not be allowed come to Canada to join you. If you do not have a birth certificate or other identity documents, you should include as much paper evidence as possible to prove a relationship, including photos, letters, sworn affidavit material, phone records, money transfers and other forms of financial support, etc. An applicant, who cannot provide satisfactory documentary evidence of a relationship, can get DNA testing. DNA testing is not required but it is considered a highly reliable way to prove a relationship. It is up to you to pay for the cost of DNA testing, which can be a few hundred dollars. Medical requirements - inadmissibility on health grounds Family members can be refused entry to Canada if the government thinks that they or their family members are likely: to be a danger to public health or to public safety; or 12

13 if their admission might reasonably be expected to cause excessive demands on health or social services. Exceptions for excessive demand There is an exception for spouses, common-law partners and dependent children with respect to excessive demand. They are not inadmissible even if they have a medical condition that will result in excessive demand to health or social services. Similarly, the dependent children of your sponsored spouse or conjugal partner and any children to be adopted are also exempt from the inadmissibility for excessive demand. What is considered excessive demand? A person places excessive demand on health or social services if the cost of caring for them would likely be more than what the average person would require over five years. A person could also be considered to place excessive demand on health or social services if they would add to existing waiting lists and increase the death rate in Canada due to delay in provision of those services The most recent cost has been determined to be: $6, 285per year, or $31, 425 over 5 years, so if your relative (other than partner or child) has a medical condition that would cost more than this, they may be found medically inadmissible. Criminality and security requirements In addition to health reasons, the government could also refuse to allow someone into Canada for criminality, violations of international or human rights, and security reasons. The government might refuse your family members if they or their relatives have a criminal background or if the government believes they are a danger to national security. This is why immigration officers ask for police certificates and background reports and assessments. Serious criminality: a person could be inadmissible to Canada if they were convicted for committing a crime in another country and that same crime is punishable by at least 10 years in Canada. Violations of human or international rights: a person could be found inadmissible to Canada if the government has reason to believe that they participated in or committed: crimes against humanity; war crimes; terrorism; systematic or gross violations of human rights; or genocide 13

14 This provision is extremely broad and has been applied to people who were senior officials of some governments, as well a individuals who were either forced or willingly supported rebel, resistance or terrorist groups. Misrepresentation - Lying or not telling the full truth Citizenship and Immigration Canada are very thorough when they review applications. They also have access the information in all of your immigration applications, for example, your permanent residence application, visitor visa, refugee protection application, etc.. The government looks for inconsistencies--differences in the information you write in your various applications. If you or your family members did not include information about a relative, incorrectly described a relationship to someone, or were not completely honest in answering questions, and if that information was important for immigration officers to know when they made their decision, you could find yourself in trouble for misrepresentation. If the government finds your family member(s) inadmissible to Canada for misrepresentation, they will not be allowed into Canada for two years. Exceptions: Refugees and protected persons cannot be found inadmissible for misrepresentation, but this section of the law does apply to their overseas family members. Declare all family members including non-accompanying family members When you apply for permanent residence in Canada, you must declare ALL of your family members, even those who will not be coming with you. This applies to all of your family members that you are sponsoring to Canada. They must declare all of their family members in their application. This is done because the government wants to examine all family members. It is also done because the government wants to make sure that the sponsor or the sponsored family members do not make conscious decisions to prevent the government from examining someone might later be sponsored into Canada. If you or the relatives your are sponsoring do not declare all family members, the ones who were not declared and examined are excluded from the family class, meaning that the government will not consider them part of your family and they cannot be sponsored in the future. Possible solutions: Mistakes do happen. If you or someone in your family is inadmissible for health reasons, criminality, or has been left off of your application, the law permits you to ask for special consideration of the humanitarian and compassionate factors (H&C) in your situation so that the 14

15 exclusion of your family members or any other legal requirement will not apply in your case. If the immigration officer believes that there are strong humanitarian and compassionate factors, they may allow the application to proceed. A separate application and fee are not required. In situations like this, where a family member is excluded because they were not declared, some of the factors that an immigration officer must consider are: the best interests of any children directly affected by the immigration officer's decision whether the facts are exceptional and deserving of special treatment such as exemption from some legal requirements/conditions whether the sponsor/applicant tried their best to help the government examine everyone they needed to examine, and whether the failure to examine the particular excluded person was beyond the control of the sponsor/applicant whether there are compelling reasons why the family member was not declared to the government (for example, this could be because the person believed their family members were dead, did not know where they were, or did not know that a child existed because it was born out of wedlock in a culture that does not condone this). An immigration officer can also put a case forward for consideration of H&C factors, even if the applicant does not do so. In these instances, the applicant should be informed that H&C factors are being considered and should be provided with an opportunity to present their own reasons for H&C consideration. 15