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Why I need a lawyer to sponsor my spouse/partner

Getting a refusal on your spousal sponsorship application can be truly devastating. Unfortunate as it is, hundreds of applications are turned down yearly by the Immigration, Refugees and Citizenship Canada (IRCC). The good news is that figuring out the cause for refusal and proactively taking action might just save your case.

Your Spousal Sponsorship Has Been Refused – What Went Wrong?

The first question that failed sponsors often ask immigration consultants is “why?” There are several basic reasons for having your spousal application rejected that need to be examined first. These mostly have to do with not following the required eligibility guidelines or submitting incorrect or incomplete paperwork:

1. The applicant is ineligible to sponsor. Having permanent residency (PR) status is not enough to be able to sponsor your spouse. Sponsors must reside in the country at the time of filing their request. They have to meet certain income requirements for the three years preceding the sponsorship application and show intent to reside in Canada with their spouse after their successful immigration.
2. The spouse is ineligible to be sponsored. The family member being sponsored must fulfill certain eligibility requirements as well. Besides being required to pass all of the regular prerequisites for a Canadian visa (including having a clean criminal record and good health history), the applying spouse must provide proof of their connection to their sponsor.
3. Incorrect information on the submitted paperwork. Many applications will be denied due to misinformation – be it unintentional or deliberate. The paperwork submitted to the IRCC must be accurate, authentic, and supported by necessary evidence.

These three cases are inconvenient but are significantly easier to navigate than the other common reason for refusal – being suspected of committing marriage fraud.

Alleged Marriage of Convenience

Even if all of the requirements are met and the submitted paperwork is complete and correct, the IRCC may simply not be convinced that your union is authentic. Section 4(1) of the Immigration and Refugee Protection Regulations reads that “a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership was entered into for the purpose of acquiring any status or right under the Act is not genuine.”

The immigration authorities will examine the authenticity of every relationship to make sure that no fraud is being committed by the couple. If the sponsor and their spouse do not manage to convince the officials that their marriage is genuine, the sponsored spouse will be refused entry into Canada for another 5 years.

Here are some of the criteria that the authorities take into account when appraising your application:

• evidence of living together;
• marriage status;
• length of your relationship (relationships shorter than two years will be under more scrutiny);
• cultural differences;
• differences in religion, age, and education.

The aforementioned criteria may seem easy to pass, however, the IRCC has been known to doubt even the strongest cases.

Immigration Officials Unconvinced by Couple’s Three-Year Marriage

The 2019 case of Waked v. Canada provides some insight into what the immigration officials look at when they are assessing spousal support cases and why applicants need to compile significant evidence to support their application.

The couple had lived together for over three years and were married for over a year at the time of filing. They had provided what thought to be sufficient evidence of their involvement.

The IRCC officer refused Mr. Waked's sponsorship application having concluded that his marriage was fraudulent. The officer specifically stated that:

• the couple had not integrated their finances thus failing to present sufficient proof to support joint financial activity;
• Mr.Waked failed to provide substantive information that would show an expected level of codependency or cohabitation in a marital relationship; and
• the wedding photos provided by the couple were deemed to be “very informal and impersonal” and Mr. Waked was not able to provide additional photos.

The resulting court case is a prime example of why working with an immigration lawyer in the early stages of compiling a spousal sponsorship application may mean the difference between a successful and failed case.

What to Do if Your Spousal Sponsorship Is Denied

What are the steps to take after a refusal? For overseas applications, the sponsor can work with a lawyer to appeal the refusal to the Immigration Appeal Division (IAD). The process begins with filing a Notice of Appeal within a month of the IRCC ruling. The representative of the IAD will review the new evidence and hold an interview with the appellant. The purpose of the interview is to demonstrate that the sponsor’s relationship is authentic and had been entered into for valid purposes.

Refusals of applications filed in Canada will need to be challenged before the Federal Court. The court has a more limited jurisdiction than the IAD and will only consider the evidence presented with the original application.

A refusal of your spousal sponsorship request is, undoubtedly, a major setback, but it can be disputed with the right type of help. Consider working with a lawyer who regularly handles appeals and be sure to hire experienced counsel when compiling your original statement in order to help eliminate the chances of failure.