Proving a Relationship Was Not Common-Law: A Sponsorship Appeal
When an overzealous immigration consultant's work put both the sponsor's and the applicant's status at risk
In the context of the immigration process, a common-law relationship is recognized in exactly the same way as a legally registered marriage. If a couple has lived together in a conjugal relationship for one year or more and can document it, their union is treated as equivalent to marriage: one partner can sponsor the other, serve as a dependent applicant, or otherwise participate in the immigration process.
But in this case, what needed to be proven was not the existence of a common-law relationship – it was its absence. The client found herself in this position because of the excessive zeal of a former immigration consultant.
Background
Helen immigrated to Canada with her parents. At the time, she was 21 years old – an adult by conventional standards, but under immigration law she qualified as a dependent child under the age of 22. She obtained permanent residence automatically when her parents' application was approved.
Shortly after moving to Canada, Helen married. She had known her fiancé, Mark, long before the move. Since Mark was neither a Canadian citizen nor a permanent resident, a spousal sponsorship process was initiated. Helen was the sponsor; Mark was the applicant seeking permanent residence.
It was in this sponsorship application that Helen's immigration consultant overstepped where he should not have: the supporting materials made a point of showing that Helen and Mark had not merely known each other for a long time – they suggested the couple had been living together well before Helen moved to Canada.
Why the consultant chose to emphasize this aspect remains unclear – perhaps he intended to demonstrate the genuineness of the relationship – but the result was nothing like what anyone expected.
The Complications
Two problems emerged at once, both serious.
The first problem concerned the immigration application through which Helen had received her permanent resident status.
Critical nuances had been overlooked: cohabitation in a conjugal relationship for one year or more is treated as a common-law partnership under immigration law, and a dependent family member is defined as a child under 22 who is not married or in a common-law relationship.
Combining these two facts, immigration authorities reached an obvious conclusion: at the time Helen obtained permanent residence, she was in a common-law relationship, and therefore could not have been considered a dependent family member of her parents. Her status in Canada was now in jeopardy – it appeared she had obtained it by providing false information about her family situation.
The second problem related to the sponsorship application: in the scenario described above, Mark was considered a member of Helen's family at the time she received her PR status. Since he had not been listed as a family member in Helen's parents' application, the law barred him from being sponsored.
Procedural Fairness
As required, Helen was given an opportunity to respond to the concerns raised. She received a procedural fairness letter in which the immigration authorities asked her to explain why her family status had been listed as "single" on her parents' application. Although Helen had been a dependent child for immigration purposes, she was a legal adult at the time and had personally signed the form containing this information.
The response to the procedural fairness letter and its outcome carried enormous weight: at stake was not only Mark's PR status (the sponsorship application could be refused), but also Helen's own PR status (she could lose it entirely).
The response proved unconvincing. Mark's sponsorship application was refused.
It was at this stage that Helen and Mark's case came to us – complex situations are our specialty.
The Appeal
Appeals of sponsorship refusals fall under the jurisdiction of the Immigration Appeal Division (IAD). It was before this body that all subsequent proceedings took place, with the goal of proving that Helen and Mark had not been in a common-law relationship.
Proving the Absence of Common-Law
Confirming the existence of a common-law relationship is relatively straightforward: submit documents that directly or indirectly demonstrate the couple has been living together in a conjugal relationship for one year or more.
But how does one prove the opposite? One cannot simply say "there are no supporting documents, so there was no common-law relationship."
The key to solving this puzzle lies in the legal definition of "common-law partner," found in the very first section of the Immigration and Refugee Protection Regulations:
In other words, in Helen and Mark's case, it was necessary to demonstrate convincingly that their cohabitation had not been conjugal in nature. This task is considerably more difficult than proving the existence of a common-law relationship – it required studying a substantial body of legal precedents to build the argument.
The Hearings
The appeal was heard in person; the proceedings lasted three days. During the hearings, evidence and arguments were presented demonstrating that Helen and Mark's relationship during the period in question had not been conjugal, despite being very close.
It was emphasized that the definition of common-law partnership applied by the immigration officer in making the original decision had been incorrect. The essential aspect is not merely the fact of cohabitation, but the nature of the relationship, which must be confirmed by various factors such as shared bank accounts, joint lease agreements, shared household responsibilities, mutual obligations, exclusivity, intimacy, interdependence, permanence, public perception of the couple as a unit, and the presence of children (if any).
Extensive evidence was presented showing that Helen and Mark's relationship did not meet all of these criteria before her immigration. The pivotal point was that their relationship had evolved and became conjugal only after they decided to marry. At the time of Helen's PR application, she was not in a common-law relationship with Mark. This was supported by both witness testimony and documentary evidence.
The Result
Ultimately, the appeal panel concluded that the decision to refuse Mark's permanent residence had been erroneous in both fact and law. The panel also recognized a breach of procedural fairness caused by the ineffective representation provided by Helen's former immigration consultant.
The appeal was allowed, enabling Mark to continue his immigration process and Helen to retain her permanent resident status.
This case illustrates how an immigration representative's misstep can create cascading problems that put multiple family members' immigration status at risk. It also demonstrates that with thorough legal research and careful argumentation, even a complex situation involving proving a negative can be resolved successfully before the Immigration Appeal Division.
Lawpoint Immigration represents clients in Immigration Appeal Division hearings, spousal sponsorship refusal appeals, and related proceedings.