I am married or in a common-law relationship with a Canadian citizen or permanent resident and I live in Canada with my spouse.  What is my pathway to permanent residence?

If you are married or in a common-law relationship with a Canadian citizen or permanent resident and living in Canada with your spouse, you may be considering your options for permanent residence.  You may have started to prepare a sponsorship application and come across a question asking whether you are applying under the Family Class or the Spouse or Common-Law Partner in Canada Class.  If you are wondering which option you may qualify for, the differences between these two programs are outlined below.

Many of the requirements for applying for permanent residence as the spouse or common-law partner of a Canadian citizen or permanent resident are the same whether you are applying under the Family Class or the Spouse or Common-Law Partner in Canada Class.  Your sponsor must be eligible to sponsor you; you must be in a qualifying marriage, common-law, or in some cases, conjugal relationship; your relationship must be genuine and not entered into primarily for immigration purposes and you must also be admissible to Canada. 

If you are not in Canada or you want to apply as a conjugal partner of your sponsor, then you would not be eligible to apply under the Spouse or Common-Law Partner in Canada Class and should consider applying under the Family Class.

If you are married or in a common-law relationship and you are living in Canada with your spouse, you may have the option of applying for permanent residence as a member of the Family Class or the Spouse or Common-Law Partner in Canada Class. 

Continuous Cohabitation with your Sponsor in Canada

If you want to apply under the Spouse or Common-Law Partner in Canada Class, you are required to continuously reside in Canada with your sponsor during the processing of the application until you are granted permanent resident status.  Short periods of separation, like if your sponsor needs to leave town for a few days for a business trip, may be fine.  However, if you and your sponsor are no longer living together, or you leave Canada and you are denied re-entry, for example, then the application should be refused.  In contrast, there is no requirement that you continuously cohabit with your sponsor in Canada under the Family Class.  If you want to be able to travel outside of Canada during the processing of the application, you may prefer to apply under the Family Class for this reason.

Access to an Appeal before the Immigration Appeal Division of the Immigration and Refugee Board of Canada

If Immigration, Refugees and Citizenship Canada refuses your sponsorship application, another major difference between the Family Class and the Spouse or Common-Law Partner in Canada class are your options for challenging that refusal.  If you apply under the Family Class, then you may have a right of appeal to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board of Canada.  This is called a Sponsorship Appeal.  If the IAD dismisses your appeal, then you may have the option to challenge the IAD’s decision in an Application for Leave and for Judicial Review (JR) to the Federal Court of Canada, which is discussed below.

If you apply under the Spouse or Common-Law Partner in Canada Class, you do not have access to the IAD, but you may challenge that decision in an Application for Leave and for Judicial Review to the Federal Court of Canada. 

There are important differences between an appeal before the IAD and an Application for Leave and for Judicial Review (JR) to the Federal Court of Canada.  In an appeal before the IAD, the Board Member (the decision maker) makes a new decision on your application; you have the right to present new evidence; and you are typically given the opportunity to give oral testimony before the decision maker. 

After you file your JR, the Federal Court must first decide to grant your application “leave” before your case is heard before a Federal Court Judge.  If leave is not granted, then the JR will not proceed.  If you are granted “leave”, then the role of the Federal Court Judge is typically to decide whether the decision to refuse your application was reasonable based on the application that was before the decision-maker, and the decision-maker’s reasons.  As a result, the Federal Court Judge does not typically have the authority to consider new evidence or to make a new decision on your application, and you are not given the opportunity to give oral testimony.  If the Federal Court Judge finds that the decision to refuse your application was unreasonable, then your application is typically sent back to Immigration, Refugees and Citizenship Canada to another officer who will make a new decision on your application.  If you have concerns that your application may be refused, then you may prefer to apply under the Family Class so that you may have access to an appeal before the IAD rather than only having access to a JR under the Spouse or Common-Law Partner in Canada Class.

Option to apply for a Work Permit as a Sponsorship Applicant

Another big difference between the Spouse or Common-Law Partner in Canada Class and the Family Class is your options for a work permit.  Under the Spouse or Common-Law Partner in Canada Class, you may be eligible for an open work permit as a Spouse or Common-Law Partner in Canada Class applicant.  There is no work permit program associated with the Family Class.  If you want a work permit as a Family Class applicant, you would have to qualify and apply for one under the Temporary Foreign Worker Program or the International Mobility Program. 

Public Policy Exemption from some Eligibility Criteria and Minor Inadmissibilities

The final difference between the Spouse or Common-Law Partner in Canada Class and the Family Class is the Public Policy under A25(1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class.  This public policy automatically exempts Spouse or Common-Law Partner in Canada Class applicants from some of the normal requirements to apply for permanent residence as a member of this class.  For example, Spouse or Common-Law Partner in Canada Class applicants are normally required to have valid temporary resident status in Canada, both at the time of the application and during its processing until the applicant becomes a permanent resident.  This policy provides qualifying applicants with an automatic exemption from this requirement.  It also provides qualifying applicants with an automatic exemption from inadmissibility for working or studying without authorization, among other minor grounds of inadmissibility.  While this public policy provides other benefits, these are the benefits that come up most often for my clients.  Please also note that this public policy does not apply in all cases.

Since applicants can apply from outside of Canada, Family Class applicants are not required to have valid temporary resident status in Canada both at the time of their application and during its processing.  However, if they are in Canada without status or have worked or studied without authorization, they do not benefit from this public policy, and they would be required to address or seek an exemption from these inadmissibility concerns. 

Seeking Further Legal Advice

I have over four years’ experience helping a diversity of clients on a variety of applications.  In that time, one important lesson I have learned about immigration law is that there are usually exceptions to the rules, and exceptions to the exceptions.  As a result, the foregoing is not legal advice as your individual circumstances may impact the information provided above that cannot be anticipated in a written format such as this one.  If you have questions about whether the Family Class or the Spouse or Common-Law Partner in Canada Class is the best option for you, you may want to speak with a lawyer.