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Often described as one of the 'cornerstones' of Canadian immigration policy, 'family reunification' is a well-known aim of the immigration system in Canada, and has been widely implemented in various programs and policy initiatives under the Immigration and Refugee Protection Act ('IRPA') and its Regulations.

One of these is the Spousal Sponsorship Program, which allows a Canadian citizen or permanent resident to sponsor a partner meeting the requirements of the legislation. A 'spouse' can be either married or in a common-law partnership with the Sponsor, and can also include, in some circumstances and under certain programs only, individuals who are in a 'conjugal relationship'. All of these terms have very specific definitions under the applicable immigration law, regulations, and policy, which may vary significantly from commonly understood definitions of these terms.

A discussion of all of the various requirements, restrictions, and definitions applicable to the Spousal Sponsorship Program is beyond the scope of this article. Moreover, much of this mechanical information can be found readily on the Citizenship and Immigration Canada ('CIC') website (at www.cic.gc.ca). One area of discussion, however, that is likely of immediate interest and relevancy to prospective sponsors and applicants is the fact that two different 'streams' or programs for sponsoring 'spouses' exist - an Outside Canada Program, and an Inside Canada Program. It is important that the advantages and disadvantages of each of these programs be reviewed carefully in the IRPA, Regulations, and applicable policy at the beginning, as it is usually not possible to switch between these programs at later stages in the process. This is particular significant, given that sponsorship programs require a substantial investment in time: even a straightforward application can take a year or more to process.

An Outside Canada Sponsorship Application is processed outside of Canada - this means that the APPLICATION is assessed at least in part at an appropriate Canadian visa office, (high commission, embassy, and/or consulate) outside of Canada. An applicant who otherwise has legal status in Canada (for example, due to possessing a separate temporary work permit) can often remain physically in Canada during the processing of the application, but will eventually be required to leave Canada, either for an interview at the processing visa office, or to 'become landed' (granted permanent residence) - therefore, in general, an individual will need to exit Canada and be granted permanent residence by immigration authorities on re-entry to Canada, before acquiring this status.

Conversely, an In Canada Spousal Sponsorship Application, as the name suggests, is processed by CIC offices within Canada, and, in general, an applicant is not required to leave Canada at any point in the process. There are, however, some additional requirements and restrictions associated with this type of application - for example, the applicant and sponsor must cohabit together inside Canada for the whole of the processing of the application and the applicant must retain their legal status in Canada for the whole of the processing of the application.

There are many more requirements and restrictions, as well as exceptions, associated with the above programs then have been enumerated in this article - it is therefore critical that prospective sponsors and applicants review the appropriate legislation and policy carefully prior to choosing one sponsorship program over another. For example, a change in policy in February of 2005 has allowed some Applicants in some circumstances and at certain points in their immigration file, to be sponsored under the In Canada Spousal Sponsorship Program, even when they have not successfully retained their legal status in Canada. It is important to emphasize, however, that, despite some commentary concerning this policy, this is not a blanket cancellation of the general requirement that legal status must be retained by the prospective applicant - many applicants without legal status will not be eligible for this program.

It is therefore important to review carefully the appropriate legislation and policy and/or to seek qualified professional guidance on these issues. Each program has specific advantages and disadvantages, and a thorough exploration of options and strategies, in light of individual circumstances, can be very advantageous in planning the effects of an Application for Permanent Residence under this class. Nevertheless, the existence of these programs provides prospective sponsors and applicants with considerable flexibility in planning their affairs.

Disclaimer

The information contained in this article is intended to provide general information only. It does not constitute formal legal advice or give rise to any solicitor-client relationship. The author and Pivot Legal LLP disclaim any and all liability resulting from reliance upon this general information. The author and Pivot Legal LLP strongly recommend seeking formal legal advice from a competent solicitor before acting upon any information that may appear in this article.