Immigration Corner | Can I sponsor someone who is illegal?
Dear Miss Powell,
I have been dating a farm worker from Jamaica and we plan to get married, but with the COVID-19 pandemic, we are facing all kinds of complications and we are not sure how to deal with everything. Now that we are planning the wedding, he tells me that he is illegal. He said that his permit expired, but he couldn’t renew it as his passport expired. Is he now illegal? If we get married, can I sponsor him?
As a general rule, all applicants to Immigration Refugee and Citizenship Canada ( IRCC) must have a valid, unexpired passport in order for an application to be considered. Therefore, it is imperative that your partner applies immediately to get a new passport from his home country before dealing with IRCC.
Under the Immigration and Refugee Protection Act and Regulations, a person may be deemed to be in Canada illegally, or ‘out of status’ or ‘lack status’ in Canada, for a number of reasons. An out-of-status person is one who has remained in Canada past the time granted under a temporary resident visa. These include a visitor visa, visitor record, work permit or student permit.
Additionally, a person who has worked or studied without being authorised to do so; a person who has entered Canada without the required visa, or other authorising document; or any person who has entered Canada without a valid passport or travel document, may be deemed to be in Canada illegally and deemed out of status.
‘Lack of status’ does not refer to any other inadmissibilities, such as a failure to obtain permission to enter Canada after being deported, or where an individual has entered Canada using a fraudulent or improperly obtained passport, travel document or visa.
An individual who entered Canada legally under a visitor, work or study permit can apply to have his/ her visa/ permit extended before it expires by simply submitting an online application. If the permit expires, the status may still be restored and an individual may even be granted a different type of permit or authorisation to remain in Canada, provided that this application has been submitted within 90 days of the expiry date.
Since the pandemic, the Canadian government has issued several public policy amendments to help individuals who are within Canada, if they have a valid reason for wanting to remain in Canada, even if they are deemed out of status for more than 90 days.
Under this new public policy, if it has been more than 90 days since the status has expired, individuals in Canada now have until August 31, 2021, to apply to restore your status. This is conditional on the individual having had a valid status on or after January 30, 2020. There are other conditions applicable, and so I recommend that you consult directly with an authorised Canadian immigration lawyer to assist you with determining if you qualify and what are the next steps.
An out-of-status person may be sponsored, provided that the parties have a genuine common-law or spousal relationship, and all the parties are able to meet the necessary criteria. You can apply under the Spouse or Common-Law Partner in Canada Class to sponsor your partner, if your spouse or common-law partner lives with you in Canada and has temporary resident status. However, you should also note that the Canadian government is committed to family unification, and so there is a public policy which allows spouses and common-law partners to be assessed for permanent residence, even if they are out of status or lack status while they are in Canada.
If there are issues which deem an individual to be inadmissible, it is best to consult with an immigration lawyer before applying, so that you can resolve any problems that deems them to be inadmissible, and to avoid unnecessary delays and even refusal.
open work permit
You should also note that your spouse or partner may be eligible for an open work permit while he waits on the confirmation of permanent residence to be processed.
Another significant factor is that as a Canadian citizen or permanent resident, while you may be authorised to sponsor a foreign national who lacks status, you will be required by the government of Canada to undertake to be fully responsible for your spouse’s basic needs. This undertaking will extend to your spouse’s dependent children as well.
There may be several options for your partner, therefore I recommend that you contact us via www.deidrepowell.com to book a telephone or Zoom meeting so that we can discuss this further.
Deidre S. Powell is a lawyer, mediator and notary public in Ottawa, Ontario, Canada. Connect with her via her website www.deidrepowell.com. Follow her on Facebook, Instagram and Twitter, or call her at 613-695-8777.