Revised: May 2003

Transcription

1 A GUIDE FOR SERVICE PROVIDERS ASSISTING IMMIGRANT AND REFUGEE WOMEN ABUSED BY THEIR SPONSORS BC INSTITUTE AGAINST FAMILY VIOLENCE Revised: May 2003

2 Acknowledgments Written by: Katrina Pacey Reviewed by: Rochelle Appleby, Eduardo Aragon, Shashi Assanand, Brian Callegari, Uma Grant, Bayush Hagos, Karen O Conner Coulter, Olatz Sagarduy, Laura Valdez and the counsellors from the Vancouver and Lower Mainland Multicultural Family Support Services Edited by: Gayla Reid, Plain Language Communications Designed by: Kate Maguire Cover by: Teresa Reimer Contents may not be commercially reproduced, but copying for other purposes is encouraged. Assisting Immigrant and Refugee Women Abused by Their Sponsors is a publication of the BC Institute Against Family Violence (BCIFV). The BC Institute Against Family Violence was established in 1989 as a private, non-profit organization. The Institute works to increase public awareness and understanding of family violence through research, education and the development and distribution of resources. The guide was funded by the BC Ministry of Multiculturalism and Immigration through its Anti- Racism and Multiculturalism Program. The guide explains the law in general. It is not intended to give legal advice on a particular problem. Because each person s case is different, your client needs to get legal help if possible. Copies of this guide are available from: The BC Institute Against Family Violence Suite Granville Street Vancouver, BC V6C 1T2 Telephone: (604) Toll free (Canada): Fax: (604) Web site address: bcifv@bcifv.org 2001, 2003, BC Institute Against Family Violence 1 st edition: nd edition: 2003 Cataloguing Information Main entry under title: Assisting Immigrant and Refugee Women Abused by Their Sponsors: A guide for service providers ISBN

3 Contents Introduction 6 Who is this guide for? 6 What is abuse? 6 What is in this guide? 7 Structure of Citizenship and Immigration Canada 8 Immigration and Refugee Board (IRB) 9 SCENARIO 1 Sponsored Fiancée 11 What happens in this case? 11 What steps can your client take? 12 What other things can she do to strengthen her case? 12 What happens next? 13 What happens if it goes to the admissibility hearing level? 13 What should your client do if she is under a removal order? 13 SCENARIO 2 Women with In-Canada Sponsorship Application in Progress 15 STAGE ONE of In-Canada Sponsorship Applications 15 What happens if a woman separates from her sponsor before getting her visa waiver? 16 What else can she do to strengthen her application? 17 What happens if her application is refused? 17 STAGE TWO of In-Canada Sponsorship Applications 18 What happens if a woman separates from her sponsor after she has a visa waiver but before she gets permanent resident status? 18 What happens if her application is refused? 18 What if her application is accepted? 19 SCENARIO 3 Women Who Do Not Have an Application in Progress 20 What steps should she take? 20 SCENARIO 4 Misrepresentation 22 If your client does not have permanent resident status and her application is in progress 22 If your client has permanent resident status 23 What are her legal rights and options? 23 What can she do to increase her chances of staying? 24 Assisting Immigrant and Refugee Women Abused by Their Sponsor 3

4 Interview with the immigration officer 24 What happens at the admissibility hearing? 24 What should she do if she gets a removal order? 24 SCENARIO 5 Women Applying for Convention Refugee Status 25 SCENARIO 6 Women with Children and No Permanent Resident Status 27 What does your client need to do? 27 Additional Scenarios 29 Women Who Are Accompanying Dependents Under the Entrepreneur Program 29 What should your client do? 29 Women Without Permanent Resident Status Who Develop an Illness or Disability as a Result of the Abuse 30 What should your client do? 30 Women Who Have Sponsored an Abusive Spouse 30 What should your client do? 31 Women Working in the Sex Trade 31 Applying for Permanent Residence on Humanitarian & Compassionate (H&C) Grounds 32 How Do H&C Applications Work? 32 The First Assessment: the H&C Decision 32 Information about the abuse 33 Information about your client s establishment in Canada 33 Information about hardship if your client is forced to return to her country of origin 33 The Interview 34 What happens if the application is accepted? 34 What happens if her application is refused? 34 The Second Assessment: Permanent Residence 35 Appeal of Removal Orders 36 Who can appeal? 36 Who hears the appeal? 36 What are the possible results of an appeal? 36 Pre-Removal Risk Assessment (PRRA) 37 Further Resource Information 38 Legal Representation 38 Legal Aid 38 What kind of legal problems are covered? 38 What are the financial guidelines for legal aid? 38 How to apply for legal aid 38 What else does your client need to know? 39 Appeals of legal aid eligibility 39 Other legal information services 40 4 Assisting Immigrant and Refugee Women Abused by Their Sponsor

5 Employment Authorization 40 If your client has permanent resident status 40 What if your client does not have permanent resident status but her H&C application has been approved for processing? 41 What if your client s H&C application has not been approved for processing? 41 What if your client is a refugee claimant? 42 What if your client is under a removal order? 42 How much does it cost to make an Application to Change the Terms and Conditions or Extend Your Stay in Canada? 42 Are there any terms and conditions on an Employment Authorization? 42 Education 43 What is a Student Authorization? 43 What courses do not require a Student Authorization? 43 What if your client has permanent resident status? 43 What if your client does not have permanent resident status but her H&C application has been approved for processing? 43 What if your client s H&C application has not been approved for processing? 44 What if your client is a Convention refugee or her refugee claim has been sent to the IRB? 44 What other information does she need? 44 Proof of financial support while she studies 45 Are there any terms and conditions on her Student Authorization? 45 BC s employment assistance programs 45 If your client has permanent resident status 45 If your client is not a permanent resident 46 Information about employment assistance programs 46 Interpretation and Translation Services 47 If your client qualifies for legal aid 47 If your client is on employment assistance 47 If your client is appealing a removal order or her case goes to an admissibility hearing 47 If your client is a refugee claimant 47 Interpretation and Translation Programs in BC 48 Glossary of Immigration Terms 50 Assisting Immigrant and Refugee Women Abused by Their Sponsor 5

6 Introduction Immigrant and refugee women who are abused by their sponsor face particular difficulties in accessing personal safety and protection. If these women do not have permanent resident status, or are at risk of deportation for other reasons, the consequences of leaving an abusive sponsor can complicate their immigration status. Who is this guide for? This guide is written for service providers working with any client who: is an immigrant or refugee woman; has been sponsored to come to Canada by a partner/fiancé/spouse under the family class sponsorship guidelines; is experiencing abuse by her sponsor; and wants to separate from her sponsor but is at risk of deportation. What is abuse? Abuse within relationships can include many forms of abusive behaviour: emotional abuse, psychological abuse, neglect, financial exploitation, destruction of property, injury to pets, threats to family, threats to take children away, physical assault, sexual assault, and homicide. Whether the immigration officer believes your client s information about the abuse will be very important. Your client will help her case if she can provide supporting evidence about the abuse. See the lists of types of supporting evidence in the section on Humanitarian and Compassionate Applications H&C Applications on page Assisting Immigrant and Refugee Women Abused by Their Sponsor

7 What is in this guide? This guide contains information about the legal process for service providers who are supporting women through the immigration process. It contains information to help you prepare your client for the legal process and explain how the process works. It provides: information about the immigration process information about legal and financial aid information about work and education permits important contacts and services a glossary of important terms This guide is organized into typical scenarios. Look at the table of contents to find the scenario that best matches your client s situation. If your client is not at risk of deportation but would like information on sponsorship breakdown, see the free booklet produced by Legal Services Society called Sponsorship Breakdown. It is available in Chinese, English, Korean, Punjabi, Spanish, and Vietnamese. See page 46 for how to get a copy. Assisting Immigrant and Refugee Women Abused by Their Sponsor 7

8 Structure of Citizenship and Immigration Canada Citizenship and Immigration Canada (CIC) is the federal government department that handles immigration, refugee, and citizenship matters. This section provides a brief introduction to CIC and lists relevant phone numbers and addresses. The Citizenship and Immigration Canada web site is at The web site has information on Immigration Canada programs and services, application kits for download, and application kits you can order by mail. Immigration Canada provides the following relevant services: Case Processing Centres (CPCs): CPCs are national mail-in service centres that handle most applications. Contact a Call Centre (see next heading) if you are looking for information about an application. Call Centres: A call centre provides information about immigration and citizenship programs and services, for information about your client s application, for applications and information kits, and for help with fee calculations. Call centres provide an automated telephone service or you can speak directly to a call centre agent. Call centre agents can provide information and factual advice. They cannot make decisions on applications being processed. The automated service is available seven days a week, 24 hours a day. It requires a touch tone phone. You can use it to order application kits and get general information on Immigration Canada programs. Agents are available from 8 a.m. to 4 p.m. To speak to an agent, press O after you contact the call centre. 8 Assisting Immigrant and Refugee Women Abused by Their Sponsor

9 Call Centre numbers: Vancouver: (604) Outside the Lower Mainland: (toll-free) Toronto: (416) Montreal: (514) Anywhere else in Canada: (toll-free) For information on the Permanent Resident Card, call If you are hearing impaired and use a text telephone, you can access the TTY by calling CIC Metro Vancouver is the office that processes In-Canada applications. The address is: CIC Metro 1148 Hornby Street. Vancouver, BC V6Z 2C3 Enforcement Branch is the office that carries out all investigations and removal orders. The Vancouver address is: Citizenship & Immigration Canada Enforcement Branch West Georgia Street Vancouver, BC V6B 6C9 Immigration and Refugee Board (IRB) The Immigration and Refugee Board (IRB) is part of Immigration Canada. It has four main divisions: Immigration Division: The body that conducts admissibility hearings. An admissibility hearing (which used to be known as an inquiry ) occurs when Immigration suspects a person has violated the admissibility criteria in the Immigration and Refugee Protection Act and may be subject to removal from Canada. Refugee Protection Division: The body that determines whether your client meets the criteria for Convention refugee status. Assisting Immigrant and Refugee Women Abused by Their Sponsor 9

10 Immigration Appeal Division: The body that hears appeals regarding denials of admission, removal orders, and refusals of sponsorship applications. Refugee Appeal Division: The body that hears appeals regarding denials of refugee status. The address in Vancouver for the Immigration & Refugee Board is: Immigration & Refugee Board West Georgia Street Vancouver, BC V6B 6C9 10 Assisting Immigrant and Refugee Women Abused by Their Sponsor

11 SCENARIO 1 Sponsored Fiancée Your client was sponsored to come to Canada as the fiancée of a Canadian citizen or a permanent resident. When she arrived, Immigration Canada granted her permanent resident status on the condition that she marry her fiancé within 90 days. She must provide proof of this marriage to immigration officials within 180 days. If your client is abused by her fiancé, she may choose to not go through with the marriage. If the marriage does not take place, Immigration Canada sees her as having failed to comply with the terms and conditions of landing. Your client is at risk of removal. Even if your client has a new partner whom she wishes to marry and who will be her sponsor, she is still non-compliant with the conditions of landing. What happens in this case? If your client does not marry her sponsor within 90 days of her arrival to Canada, she is in contravention of the condition of landing. An immigration officer will consider the reasons why your client failed to comply with terms and conditions of landing, including evidence of abuse. An immigration officer has the discretion to release your client from the requirement to marry her fiancé. The immigration officer also has the discretion to refer the matter to the immigration division of the IRB for an admissibility hearing. She can lose her permanent resident status only at the admissibility hearing level. It is very important to be proactive. It is not a good idea for your client to lie low and hope that Immigration Canada will just forget about her. Keep in mind that her fiancé may have already turned her in. As soon as your client has made a final decision to not go through with the marriage, she should try to get a lawyer and advise Immigration Canada. She needs to tell Immigration Canada she will not be complying with the terms and conditions of her landing and give reasons for her decision not to marry. Assisting Immigrant and Refugee Women Abused by Their Sponsor 11

12 What steps can your client take? Your client should try to get a lawyer to help her prepare a statement. The statement should provide the information that will help Immigration Canada to fully understand your client s circumstances. Information that Immigration Canada may consider includes: information to show that her engagement was genuine but that she was unable to follow through with marriage because of the abuse information to show that her safety/well-being will be in jeopardy if she is forced to return to her county of origin information to show that she has a substantial connection to Canada information to show that she will be able to support and establish herself in Canada if she has children, information to show that they are established in Canada and/or will encounter hardship if they are forced to return to the country of origin any other information that your client feels is relevant She needs to send this to the immigration officer with a request to change the terms and conditions of her landing. Immigration Canada may say she is not required to marry. The immigration officer will probably call your client in for an interview. The immigration officer will ask her about the details of her circumstances and experiences. She should take copies of all documentation that will support her reasons for needing to remain in Canada. Your client can bring a support person to the interview. What other things can she do to strengthen her case? Since your client got permanent resident status at the point of entry into Canada, she can get a Social Insurance Number and seek work and/or attend school. This will help her increase her level of establishment (Immigration Canada s term for the way an immigrant builds a new life). If possible, she should avoid going on employment assistance (welfare). Being on employment assistance could have a negative impact on her application. 12 Assisting Immigrant and Refugee Women Abused by Their Sponsor

13 You can help your client by providing her lawyer with information about her background, her situation, and the difficulties she would face in her country of origin. You can also help by gathering relevant documentation from police, transition houses, employers, etc. Do not go beyond the information the lawyer requests or the information that your client wants to disclose. To find out what information and documents are useful in the statement, see the section on Humanitarian and Compassionate Applications H&C Applications on page 32. What happens next? If the officer decides that your client does not have to meet the marriage requirement, the officer will note on her file that there should be no further action. If the officer decides to send the matter to an admissibility hearing, they will send your client a Notice to Appear. This notice gives her the date and time of the admissibility hearing and says that she must attend. What happens if it goes to the admissibility hearing level? A case at the admissibility hearing level goes to the Immigration Division of the Immigration and Refugee Board (IRB). They will send your client a letter ordering her to appear before the adjudicator. The adjudicator s sole concern is whether your client violated the terms and conditions of landing. The adjudicator does not consider the humanitarian and compassionate reasons why she did not meet the terms and conditions. Because your client could not meet the terms and conditions, the adjudicator will most likely decide that a violation occurred, and make a removal order. What should your client do if she is under a removal order? If your client loses her status at the admissibility hearing she has a right to appeal to the Immigration Appeal Division of the IRB, which will consider the humanitarian and compassionate factors. The Appeal Division has a great deal more latitude in decision making than the adjudicator at the admissibility hearing. Assisting Immigrant and Refugee Women Abused by Their Sponsor 13

14 If your client has not had a lawyer up to this point, it is very important that she get a lawyer for the appeal process. Under the legal aid guidelines, any financially eligible immigrant who faces removal is entitled to legal aid. She must file for appeal within 30 calendar days of the admissibility hearing decision. Probably she was given a form at the admissibility hearing telling her how to appeal. If not, she can contact an Immigration Canada Centre to get a form. For further information, see the section on Appeal of Removal Orders, page Assisting Immigrant and Refugee Women Abused by Their Sponsor

15 SCENARIO 2 Women with In-Canada Sponsorship Application in Progress Your client came to Canada as a visitor, temporary worker, or student, and decided to marry a Canadian citizen or a permanent resident. The relationship has become abusive and your client now wishes to separate from her spouse. After their marriage, your client or her spouse made an In-Canada Sponsorship Application. This type of application is processed in two stages. In the first stage of the assessment, the applicant asks for a visa waiver. In the second stage of the assessment, Immigration Canada assesses the applicant for permanent resident status. You need to know exactly what stage of the application process your client is at. It is also important to make sure she has legal status in Canada at all times. If necessary, she should apply for an extension to her visitor visa. The following information will help you find out where she is at in the application process, and the possible steps to take. STAGE ONE of In-Canada Sponsorship Applications In the first stage of assessment and within the same application, the applicant asks for an exemption from the immigrant visa requirement. This exemption is called a visa waiver. Your client has to show that the marriage is genuine (i.e. it was not for the purpose of immigration) and that she would face significant hardship if she had to apply from outside Canada. If Immigration Canada finds that there are humanitarian and compassionate grounds, they will send your client a letter saying that they have approved her application for processing. Assisting Immigrant and Refugee Women Abused by Their Sponsor 15

16 What happens if a woman separates from her sponsor before getting her visa waiver? If Immigration Canada has not sent your client a letter saying that the visa requirement has been waived, her eligibility to apply as an in-canada applicant is in jeopardy. With the help of a lawyer, your client will need to contact her immigration officer and modify her application. She is no longer a sponsored applicant. She will now be applying as an independent immigrant based on humanitarian and compassionate grounds. Your client may be able to avoid paying a second $500 processing fee. She can ask to get her sponsorship application (Applying for Permanent Residence from Within Canada Spouse or Common-Law Partner Class) converted into a Humanitarian and Compassionate application (Applying for Permanent Residence from Within Canada Humanitarian and Compassionate Cases). If she can satisfy the requirements for a visa waiver, she may be approved for landing from within Canada. If relevant to her situation, she should mention these points: her marriage was genuine but she was unable to stay with her sponsor because of the abuse her safety/well-being will be in jeopardy if she is forced to return to her county of origin she can show she has a substantial connection to Canada she will be able to support and establish herself in Canada She should also be ready to: describe the effect that removal would have upon any children who are currently in Canada and provide evidence (copies of birth certificates) of any Canadian children provide information concerning hardship to any Canadian citizen or permanent resident, such as elderly persons, if she is removed In her first sponsorship application, her main reason for the visa exemption was that the hardship of being separated from her spouse made it necessary for her to apply for permanent resident status while in Canada. Now that her spouse is no longer a reason to remain in the country, she will have to find a justifiable reason for making an In-Canada application. Examples of circum- 16 Assisting Immigrant and Refugee Women Abused by Their Sponsor

17 stances where In-Canada applications may be appropriate are listed in the section on H&C Applications, page 32. If your client s safety or well-being would be in jeopardy if she returned to her home country, she may have the grounds to make a viable refugee claim. It is also possible that your client qualifies as a member of the independent class. She may remain in Canada as long as her visitor status is current. Her application for landing may be sent to any consulate outside Canada. It is important to remember that if she applies through a Canadian consulate in the United States, she must be able to obtain a visa to enter the USA for an interview. This can be difficult. What else can she do to strengthen her application? At this point, your client is not eligible for a work permit, education permit, or employment assistance. She can apply for hardship assistance, described on page 46, through the province s Ministry of Human Resources. This could have a negative impact on her application for a visa waiver, although the immigration officer who decides her case has the discretion to grant the visa waiver and will consider her future plans for employment. CIC will understand that she is not able to work. However, after she gets the visa waiver, she should try to find other means of supporting herself. Receiving ongoing government financial assistance will affect her eligibility for permanent resident status. What happens if her application is refused? Immigration Canada may refuse your client s application if the immigration officer is not convinced that sufficient humanitarian and compassionate grounds exist to warrant processing from within Canada. The $500 processing fee will not be refunded. If the client s circumstances change or she feels she has new information that would change the content of her application, she can reapply and pay another $500 processing fee. If possible, your client should extend her immigration status so that she is legally in Canada. If she cannot maintain legal status in Canada, she may have to leave Canada and apply from abroad. Assisting Immigrant and Refugee Women Abused by Their Sponsor 17

18 STAGE TWO of In-Canada Sponsorship Applications In the second stage of the assessment of In-Canada applications, Immigration Canada considers whether or not the applicant meets the conditions for landing. To be admitted, the applicant has to meet the health criteria, not have a criminal record, and be able to support herself. The decision can take months or longer. One reason for the length of time for processing is that background checks are normally made in the client s country of origin and in any other countries where she has lived for six months or more. What happens if a woman separates from her sponsor after she has a visa waiver but before she gets permanent resident status? If your client separates from her sponsor after she has her visa waiver, her eligibility to apply while in Canada will not be affected. After her visa has been waived, the sponsorship cannot be withdrawn and her application will continue to be processed in the same way. However, her separation may affect her ability to meet the admissibility criteria if she is not able to support herself. Because she has a visa waiver, she can apply for a work or education permit and begin to work and/or go to school. Your client may also be eligible for spousal support. You can refer her to a family lawyer. If your client needs to go on welfare, this will make her inadmissible for permanent resident status under the financial criteria set by the Immigration and Refugee Protection Act. Even though your client is still technically sponsored by her spouse, she is not obligated to remain in any sort of relationship with him or have any contact whatsoever. Your client is entirely free to live independently and sever all ties with her former spouse. What happens if her application is refused? Immigration Canada may refuse your client s application if she does not meet the financial, medical, or criminal record requirements set by the Immigration and Refugee Protection Act. At the time your client s visitor status expires, she is expected to leave Canada voluntarily. Your client can apply to extend her visitor status. However, if she 18 Assisting Immigrant and Refugee Women Abused by Their Sponsor

19 has been refused landing, is it unlikely that Immigration Canada will give her an extension since she is clearly not in Canada for a temporary purpose, and is therefore not a genuine visitor. If your client does not successfully extend her visitor visa and fails to leave Canada voluntarily, an immigration officer may make a departure order that would require her to leave Canada within 30 calendar days. If she doesn t leave, the departure order becomes a deportation order. Your client would then require written permission from the Minister of Citizenship and Immigration if she ever wishes to return to Canada. What if her application is accepted? If Immigration Canada grants your client permanent resident status, she can now apply for welfare and this will not affect her permanent resident status. Her spouse will still be bound by his undertaking of assistance and will be expected to repay any money she gets from the government. This is an important element of any negotiations to reach a separation agreement. Assisting Immigrant and Refugee Women Abused by Their Sponsor 19

20 SCENARIO 3 Women Who Do Not Have an Application in Progress Your client is married or living in a common-law relationship with a Canadian citizen or permanent resident who took responsibility for managing her immigration application process. Her sponsor led her to believe that her application was in progress, when in fact he had not made an application on her behalf. She is living illegally in Canada with no status and no visitor s visa and is being abused by her spouse. What steps should she take? If your client wishes to remain in Canada, this is a very serious situation. She should do everything she can to get a lawyer. If she can meet an H&C application (Humanitarian and Compassionate), she needs to file it with Immigration Canada. (Applying for Permanent Residence from Within Canada Humanitarian and Compassionate Cases). See the section on H&C Applications on page 32. A lawyer can arrange an appointment with an immigration officer and will attend that interview with the client. If she can satisfy the requirements for an H&C application, she will likely be granted a visa waiver as an independent applicant. If relevant to her situation, she should mention the following points: her marriage was genuine but she was unable to stay with her sponsor because of the abuse her safety/well-being will be in jeopardy if she is forced to return to her county of origin she can show she has a substantial connection to Canada she will be able to support and establish herself in Canada her children are established in Canada and/or will encounter hardship if they are forced to return to her country of origin her removal will cause hardship to a Canadian citizen or permanent resident (such as an elderly person) she is close to 20 Assisting Immigrant and Refugee Women Abused by Their Sponsor

21 You can help your client to identify and gather the information she needs. Your client should discuss these issues with her lawyer. She should also ask the lawyer how to make sure she can maintain admissibility. See page 35 (The Second Assessment: Permanent Residence) for information on how to maintain admissibility. Caution your client about applying for employment assistance (welfare) if she has any other options. Before she gets a visa waiver, being on hardship assistance should not affect her application, although it could. Having an alternate means of support will definitely be a factor considered in her favour. However, once she has a visa waiver and is being considered for permanent resident status, being on employment assistance (welfare) will probably have a negative impact on her admissibility Talk to your client about getting a family lawyer so that she can consider applying for spousal maintenance. Warn your client that many family law matters are no longer covered by Legal Aid in British Columbia. (See page 38.) If your client is involved with both an immigration lawyer and a family lawyer, make sure they are aware of each other. It is very important to find out if your client has a viable claim for refugee status. Your client should speak to a lawyer to find out if she should pursue this avenue. Assisting Immigrant and Refugee Women Abused by Their Sponsor 21

22 SCENARIO 4 Misrepresentation Your client is currently in an abusive relationship with her sponsor and wishes to separate. She acknowledges that she or her spouse falsified or omitted relevant information on her immigration application. Your client may fear that her spouse will disclose this misrepresented information to Immigration Canada as a means of revenge if she breaks up the marriage. Alternately, she may have only recently become aware of this misrepresentation and now wishes to come forward. A woman who has misrepresented her situation may be at risk in her intimate relationship because she may feel that she needs to stay with her abusive sponsor due to his threats and her fear of deportation. Immigration Canada says a misrepresentation (also called a misrep ) happens when an immigrant or refugee gains admission to Canada by misrepresenting, suppressing, or concealing any relevant fact. The misrepresentation can come from the applicant or from another person. Immigration Canada views misrepresentation as a serious act. The onus is always on the applicant to provide true and accurate information. Your client would have signed a declaration on her application form saying that it contained accurate information. There is a possibility of criminal charges for misrepresentation under the Immigration and Refugee Protection Act. If your client is in this situation, you need to find out whether or not she has permanent resident status. If your client does not have permanent resident status and her application is in progress Your client must advise Immigration Canada of any change in her circumstances or any information that needs to be corrected. She needs to do this in writing and as soon as possible. She should get legal advice before she does this. A lawyer will help her present her case to Immigration Canada. 22 Assisting Immigrant and Refugee Women Abused by Their Sponsor

23 She should contact Immigration Canada and say that she wishes to change some of the facts on her application. What action Immigration Canada takes will depend on whether the new information affects her admissibility. If your client fails to report these facts immediately, she may have to report them after she has received permanent resident status. It will be much more problematic for her to change the information after she has permanent resident status. If your client has permanent resident status Your client is at risk of losing her permanent resident status. The severity of her misrepresentation depends on whether the undisclosed information would have affected her admission. Examples of misrepresentation that can affect admissibility include omitting information about: children in her country of origin a previous marriage that was not terminated any crimes or criminal convictions (see note on page 35) What are her legal rights and options? Your client should try to get a lawyer to help her prepare a statement explaining the reasons for the misrepresentation and why she needs to stay in Canada. If relevant to her situation, she should mention these points: information about the abuse and the way in which her situation may have compelled her to misrepresent or omit information information to show that her safety/well-being will be in jeopardy if she is forced to return to her county of origin information to show that she will be able to support and establish herself in Canada information to show the effect that removal would have upon any children involved Assisting Immigrant and Refugee Women Abused by Their Sponsor 23

24 What can she do to increase her chances of staying? Your client should make sure she has a Social Insurance Number. If at all possible she should either be working or going to school. If she has received a visa waiver but does not yet have permanent resident status she should apply for a work/education permit and seek work or schooling. You can help your client by providing her lawyer with information about her background, her situation, and the difficulties she would face in her country of origin. You can also help by gathering relevant documentation from police, transition houses, employers, etc. Do not go beyond the information the lawyer requests or the information your client wants to disclose. Interview with the immigration officer An immigration officer will probably call your client in for an interview. The immigration officer will ask her questions about the misrepresentation. Your client has the right to have a lawyer present. If your client does not have a lawyer, you may be able to attend the interview. If you attend the interview with your client, you are there as an observer and to provide support and information to your client before and after. Depending on the nature of the information and your client s status, it is possible that the immigration officer will send the case on to an admissibility hearing. What happens at the admissibility hearing? The adjudicator looks at whether your client violated any terms and conditions of landing. The adjudicator does not consider the humanitarian and compassionate reasons for the misrepresentation. Because of this, the adjudicator will often have no choice but to make a removal order. What should she do if she gets a removal order? Your client can appeal. She should do this with the help of her lawyer and within 30 calendar days of the admissibility hearing decision. The appeal is made to the Appeal Division of the IRB. See the section on Appeal of Removal Orders, page Assisting Immigrant and Refugee Women Abused by Their Sponsor

25 SCENARIO 5 Women Applying for Convention Refugee Status A Convention refugee is someone who has been found to fear persecution in her or his country of origin because of race, religion, nationality, membership in a social group, or political opinion. In Canada, the Refugee Protection Division of the IRB decides who is a Convention refugee. If your client has been found to be a Convention refugee then she is not at risk of removal when she separates from her abusive spouse, even if she has yet to receive permanent resident status. She may also receive welfare benefits without having this affect her application. If your client s refugee claim is still in progress (being decided by the Refugee Protection Division) and her claim is based on her spouse s fear of persecution then she may wish to apply to the Refugee Protection Division to sever her claim and proceed independently. There is no guarantee that such an application will be granted. Your client should get a lawyer, particularly if the claims are joined and your client has a restraining order against an abusive spouse. The success of your client s application depends on her ability to argue that she has a well-founded fear of persecution because of her race, religion, nationality, or membership in a particular social group, or political opinion. She should mention any problems she will face if she is forced to return to her country of origin. It is important to note that your client s grounds for fearing persecution may have arisen during her time in Canada. It is possible that the breakdown of her marriage may create new grounds for fearing persecution in her country of origin. An abused woman may fear persecution by her family, community, or society at large in her country of origin. Your client should talk to her lawyer about the impact of the separation on her refugee claim. If your client and her spouse now have opposing interests and they ve both used the same lawyer in the past, they each need a new lawyer. Assisting Immigrant and Refugee Women Abused by Their Sponsor 25

26 If your client s claim is denied, she will have two options. She can pursue both of these options at the same time. First, she can apply for landing from within Canada on Humanitarian and Compassionate grounds. (Applying for Permanent Residence from Within Canada: Humanitarian and Compassionate Cases). See the section on H&C Applications, page 32. Second, your client can have a lawyer look at the reasons for the denial and see if there are grounds for an appeal. The negative decision can be appealed to the Refugee Appeal Division of the IRB. If the appeal fails, there may be grounds for a judicial review at the Federal Court level. Your client needs a lawyer in order to proceed with an appeal. 26 Assisting Immigrant and Refugee Women Abused by Their Sponsor

27 SCENARIO 6 Women with Children and No Permanent Resident Status Your client gave birth to a child while living in Canada or brought a child to Canada and does not have permanent resident status. Her spouse is a permanent resident or Canadian citizen and he agreed to sponsor her. However, he is abusive and your client wishes to separate, but she is afraid she will be deported and that she will lose her child. Under Canadian immigration law, having a Canadian born child does not automatically give her a right to remain in Canada. However, when determining an application, an immigration officer must take into consideration the best interests of any children who are affected. What does your client need to do? Your client has two issues to deal with: 1. If she wishes to stay in Canada, she must secure her immigration status. 2. She has to decide about custody of her child. With the help of a lawyer, your client can make an H&C application as an independent applicant. If she has a sponsorship application already in progress, refer to the section on Women with In-Canada Applications in Progress, on page 15. If she has not applied, follow the guidelines in the section on Women Who Do Not Have an Application in Progress, on page 20. The existence of children, whether born in Canada or not, is a relevant consideration where removal from Canada would result in some harm to the child. This harm may take the form of financial hardship, separation from a parent, or many other possible consequences. If the children are not Canadian citizens or permanent residents, the immigration officer must look at their ties to Canada and the negative impact of removing them. Assisting Immigrant and Refugee Women Abused by Their Sponsor 27

28 If child custody is an issue, your client will also need a family lawyer to help her seek custody, and if appropriate child support from the child s father. She can be doing this at the same time as she is dealing with her immigration issues. More information is available in the free booklet called, If Your Marriage Breaks Up, produced by the Legal Services Society. This booklet is available in English and French. See page 46 for how to get a copy. If the client herself is under the age of 19, contact the migrant coordinator of the Ministry of Children and Family Development. It is possible that your client has a restraining order against her spouse, but is still under a deportation or removal order. Particularly if she is under an order to not remove her child from the country, she has a strong case for an independent application on humanitarian and compassionate grounds (Applying for Permanent Residence from Within Canada Humanitarian and Compassionate Cases). See the section on H&C Applications, page 32. If her application is unsuccessful, she can appeal. 28 Assisting Immigrant and Refugee Women Abused by Their Sponsor

29 Additional Scenarios Women Who Are Accompanying Dependents Under the Entrepreneur Program Your client was granted conditional permanent resident status as an accompanying dependent under the conditions of the Entrepreneur Program. Entrepreneurs and their dependants are admitted to Canada on the condition that they establish and actively manage a business in Canada within two years of arrival. Your client is being abused by her spouse. She wishes to separate before they meet the business requirements. Unless she is able to start a business on her own, she will not be able to fulfill the terms and conditions of landing. She is therefore at risk of being forced to leave Canada. What should your client do? Your client will need to contact an immigration officer to acknowledge the changes in her circumstances. The immigration officer has the discretion to refer the matter to an adjudicator for an admissibility hearing. She can lose her permanent resident status only at the admissibility hearing level. If your client loses her permanent resident status, and she will encounter significant hardship upon returning to her country of origin, the application that will have the greatest chance of success is an application on humanitarian and compassionate grounds (Applying for Permanent Residence from Within Canada Humanitarian and Compassionate Cases). See the section on H&C Applications, page 32. It will be helpful to your client s case to begin the divorce process and start to negotiate child custody if there are children involved. Your client should get a lawyer if she can. Assisting Immigrant and Refugee Women Abused by Their Sponsor 29

30 Women Without Permanent Resident Status Who Develop an Illness or Disability as a Result of the Abuse Your client does not have permanent resident status and is being abused by her sponsor. She wishes to sever the relationship with her spouse and remain in Canada. However, due to her health issues she may not be admissible under the health guidelines in the Immigration and Refugee Protection Act. What should your client do? Your client should let Immigration Canada know that her health and abilities have been compromised as a result of the abuse. Immigration Canada will decide whether or not they find her circumstances compelling enough to grant her permanent resident status even with her medical issues. If she has yet to receive a visa waiver, she can convert her sponsorship application into an independent application in order to sever her connection with her abusive spouse (Applying for Permanent Residence from Within Canada Humanitarian and Compassionate Cases). See the section on H&C Applications, page 32. If she has a visa waiver, she will have to await a decision from Immigration Canada to see if they find compelling grounds to grant her permanent resident status. Women Who Have Sponsored an Abusive Spouse Your client sponsored her spouse to immigrate to Canada and he is abusive. She wishes to withdraw her sponsorship and no longer be financially responsible for her spouse. You need to find out what stage of the immigration process they are at. If your client is applying to sponsor him and he is already in Canada, it is important to know whether he has received a visa waiver. If he has not received a visa waiver yet, she can withdraw her sponsorship application. If he has received his visa waiver, she cannot withdraw her sponsorship application and is financially responsible for him for 3 years. This cannot be changed. However, she can still divorce him. 30 Assisting Immigrant and Refugee Women Abused by Their Sponsor

31 What should your client do? Your client s responsibility for him will become an issue only if he tries to collect welfare, in which case the government will try to get reimbursement from your client. If that happens, your client should write a letter to Immigration Canada explaining her circumstances and hope that when the Ministry of Human Resources seeks reimbursement for her spouse s welfare payments, Immigration Canada will present the letter and may make a case for your client. It is possible that Immigration Canada will not advocate for your client or that the information will be lost in the system. In this case, your client will have to remake information about the abuse. You can help her advocate for herself at this point. Keep in mind that Immigration Canada s file on your client s case is under the name of your client s spouse. Therefore all documentation sent to Immigration Canada should have the sponsored person s name on it along with the file number. Women Working in the Sex Trade Immigrant women who have been forced into the sex trade face a number of complex issues that will differ significantly from case to case. If your client is working in the sex trade and her immigration status in Canada is at risk, she should try to get a lawyer to help her with all legal and immigration matters. Assisting Immigrant and Refugee Women Abused by Their Sponsor 31

32 Applying for Permanent Residence on Humanitarian & Compassionate (H&C) Grounds How Do H&C Applications Work? H&C applications can be made through a sponsorship arrangement or as an independent application. There is a two-step decision-making process for these applications. In the first step, the applicant applies for a visa waiver so that she does not need to return to her country of origin to make an application for permanent resident status. In the second step, Immigration Canada assesses the applicant for admissibility as a permanent resident. The First Assessment: the H&C Decision In the first stage of the assessment process, the immigration officer assesses whether there are humanitarian and compassionate grounds to exempt the applicant from the visa requirement. The immigration officer considers the information the applicant presents as well as all other information previously known to Immigration Canada. There are no particular eligibility criteria in this stage of the application. It is helpful if your client can show two facts: 1. Given her particular circumstances, the hardship of having to obtain a visa from outside of Canada would be (i) unusual, undeserved, and the result of circumstances beyond her control, or (ii) disproportionate. 2. She has become established in Canada. In the Citizenship and Immigration Canada Policy Manual, immigration officers are directed to consider the following factors. Use these factors as a guide in preparing the H&C application. 32 Assisting Immigrant and Refugee Women Abused by Their Sponsor

33 Information about the abuse Information showing there was abuse, such as: police incident reports court information regarding charges or convictions reports from transition houses/shelters, community or other womenserving agencies medical reports from doctors, hospitals, clinics etc. A personal chronicle of the abuse indicating: when the abuse began any incidents (with as much detail as possible i.e., date, details, witnesses); whether the abuse has escalated level of fear and risk Information about your client s establishment in Canada Factors that can show establishment include: history and records of employment financial records documents showing that your client has integrated into the community, through being involved in community organizations, in volunteer work, or other activities any documents or certificates from professional, language or other study that show your client s integration into Canadian society information about any children who would be affected by the removal information about the effect that her removal would have on any Canadian citizen or permanent resident (such as an elderly person) that she is close to Information about hardship if your client is forced to return to her country of origin Factors that can show hardship include: customs and culture in the applicant s country of origin lack of support of relatives and friends in the applicant s home country Assisting Immigrant and Refugee Women Abused by Their Sponsor 33