Overview

Topics covered in this blog article:

• What is the main reason for a spousal sponsorship refusal or denial?
• What is a "bad faith" or "not genuine" marriage?
• What is a fairness letter in spousal sponsorship applications?
• What can you do if an inland sponsorship refused?
• What can you do if outland sponsorship refused?
• Common mistakes that cause a spousal sponsorship application return by the IRCC (Immigration, Refugees and Citizenship Canada) as incomplete.
• What are the consequences of incomplete spousal sponsorship, and what can you do?

IRCC Approach to Spousal Sponsorship Applications

Before you read about refusals and returns of spousal sponsorships, bear in mind that the Immigration, Refugees, and Citizenship Canada (IRCC) does not mean to refuse your application due to cap or nondesire to allow your significant one to live with a spouse in Canada.

Quite the opposite, IRCC supports family reunification and improves the service all time to make it possible for spouses and partners of Canadians and permanent residents to enjoy their marriage in Canada, together, as a family. IRCC decreased spousal sponsorship processing time to 12 months and has strived to accept more applications. Canada plans to admit 70,000 spouses, partners, and children in 2020.

Why then sponsorships still get refused? Continue reading.

What Is the Main Reason for a Spousal Sponsorship Refusal or Denial?

IRCC officers processing spousal sponsorships first and foremost follow the Immigration and Refugee Protection Act (IRPA) & Regulations (IRPR) in how they approach applications to sponsor spouse or partner.

What is a “bad faith” or "not genuine" marriage?

So, let’s first take a look at the current version of s. 4 of IRPR that states:

Bad faith marriage

4 (1) For the purposes of these Regulations, 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

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; OR

(b) is not genuine.

Therefore, what IRPR sets out is that if the couple gets married or live in a conjugal relationship as partners primarily to get permanent residence in Canada, such a marriage is bad faith or not genuine, and sponsorship should be refused. It remains the most common reason for both inland and outland spousal sponsorship refusal.

What if our Marriage Was for Immigration, but Now It Has Grown into Genuine?

Even if a marriage has grown into genuine, but was entered into, initially and primarily, for an immigration purpose, sponsorship will be refused.

Previously, to refuse sponsorship, a decision-maker had to determine both that the marriage was not genuine AND that it was entered into primarily for an immigration purpose.

So, this means that previously a sponsorship would not be denied or disqualified if the marriage had been entered into primarily for an immigration purpose but had later grown into a genuine relationship. There was a material change and it is not a case anymore.

What Are the Indicators of Marriage of Convenience?

Thus, every spousal sponsorship is assessed through the lens of the genuineness of the marriage.

There are common factors that officers are looking at when assessing sponsorship applications. They are not identical or exhaustive in each case, and other considerations may be brought to the attention of the officer.

When you prepare a spousal sponsorship application, bear in mind that an officer will look at the following factors to assess the genuineness of marriage in sponsorship, that you can download here.

When Does IRCC Request Sponsorship Interview?

As you now see, from the assessment factors we provide above, the genuineness of marriage and relationship is highly factual.

So, officers schedule sponsorship interviews to question the spouses or partners in person.

Especially, it is likely that IRCC requests an interview if:

• The sponsor and principal applicant have been married for less than two years as of the date of a spousal sponsorship application.
• It is not the first marriage for either a sponsor or a sponsored person, and either from the couple was divorced.
• The couple does not have children, along with all of the above.
• The sponsor immigrated to Canada via spousal sponsorship too. Inconsistencies in the application forms or story of relationships.
• Submitted supporting documents are not sufficient to assess whether the marriage is genuine or one of the convenience to move to Canada.
• Admissibility issues.

These are just some of the indicators, but it does not necessarily mean that an interview will be scheduled in your sponsorship case. Again, if any of the above applies to you, it does not mean that your marriage is not genuine. Rather, IRCC has a system in place to prevent immigration and marriage fraud via “fake marriage,” as it used to be widespread in the past (read about some projects, like “Project Honeymoon” here).

What Is a Fairness Letter and How to Respond?

Some couples who applied for sponsorship inside or outside Canada may get a fairness letter from IRCC. It is not a denial letter, yet. However, if it is disregarded or not properly addressed, it may well end up in immigration refusal.

This letter may be received prior or after a sponsorship interview, and usually contains the deadline to respond to the officer’s concerns about relationship or marriage. If your sponsorship case is complex, contact an immigration lawyer for advice on what to respond, or hire one to help you prepare a response for a fairness letter.

Why Did IRCC Send Us a Fairness Letter?

While it may well be disappointing to receive a fairness letter, it allows ensuring a fair process in the assessment of sponsorship applications.

IRCC officers have substantial discretion. Still, they can not simply refuse an application without giving an opportunity to respond. If, however, your application was denied, and you were not given a chance to respond beforehand, it may be a ground for spousal sponsorship appeal at the Immigration Appeal Division or judicial review of a decision at the Federal Court of Canada. It means that “procedural fairness” was breached. An immigration lawyer can better assess whether or not it was breached, or, maybe, a mistake took place after reviewing your application package and officer’s reasons for refusal.

What Can You Do If IRCC Refused Your Sponsorship Application?

There are several options in case of refusal.

The reasons for refusal are, definitely, important to look at, but also what type of sponsorship application you submitted.

What Can You Do If an Inland Sponsorship Refused?

Inland Sponsorship Application is the one submitted inside Canada to CPC Mississauga. It only exists for spouses or common-law partners living in Canada (i.e., those sponsored under the Spouse or Common-Law Partner in Canada class).

In case of inland spousal sponsorship refusal, there is no right for sponsorship appeal at the Immigration Appeal Division.

However, there are two other options for inland refusal.

Option 1

You can apply for judicial review of a decision by the Federal Court of Canada. A notice of the application must be filed in the Registry of the Federal Court within 15 days after the day on which you were notified or otherwise became aware of your spouse's permanent resident visa denial.

Option 2

Another option is to resubmit a sponsorship application.

Which option is suitable is specific to individual circumstances and reasons. Consult an immigration lawyer to decide.

What Can You Do If Outland Sponsorship Refused?

Outland Sponsorship Application is the one submitted to CPC Sydney. This option is available for both: spouses or common-law partners living inside or outside Canada (i.e., those sponsored under the Family class).

In the case of outland spousal sponsorship refusal, there are three options:

Option 1

Sponsorship appeal. You can appeal the refusal of a spousal permanent resident visa to the Immigration Appeal Division (IAD). If that is the path you select to proceed, then a sponsor must file an appeal with the IAD within 30 days.

Option 2

If sponsorship appeal is refused too, then you may be eligible to apply for judicial review of a decision by the Federal Court of Canada. A notice of the application must be filed in the Registry of the Federal Court within 15 days after the day on which you were notified or otherwise became aware of sponsorship appeal refusal.

Option 3 

Another option is to resubmit a sponsorship application.

Which option is suitable is specific to individual circumstances and reasons. Consult immigration lawyer to get assistance with sponsorship refusal.

Common Mistakes that Could Cause a Spousal Sponsorship Application to Be Returned (What Are Consequences & What To Do?)

Returned application package means one thing only – you have to resubmit an application. This may happen if your package is incomplete.

The good news is if IRCC returns your package, it is never considered a refused one. However, the bad news is that it may cause a delay. Incomplete applications will not have a place in the processing queue. If you resubmit your application and IRCC confirms it is complete, a receipt date will be when it was received after resubmitted, and the processing time will start from the date it is received after resubmission.

You can avoid a return of incomplete package by following simple rules.

1. First and foremost, get the correct checklist and application forms, respectively. Both of these vary depending on the category, i.e., whether you submit inland or outland application. IRCC updates the forms regularly. At the bottom left corner of the form, you can find its number and date. Double-check immediately before you submit a sponsorship application, whether the forms completed by you match with the most recent and updated by IRCC version of the forms. You can check this here.

2. Another common mistake is to complete and sign the forms and then due to delay with gathering supporting documents, send a package more than 90 days after the forms were signed. The forms are considered stale-dated if IRCC receives them over 90 days after signing. It is likely the whole package will be returned.

3. When completing sponsorship forms, do not leave questions blank. If the information on a question does not apply to you, you should write “N/A” or “Not Applicable” in the answer space.

4. Avoid confusion with the terms. A most common confusion is who is a sponsor and who is a principal applicant? A principal applicant is a person being sponsored for permanent residence to Canada. Misuse of these terms may lead to answering questions incorrectly.

5. Missing or inadequate documents. Supporting documents are essential and help IRCC to assess the genuineness of a marriage or relationship. Follow the checklist and provide all requested evidence. Common mistakes are: a photocopy is not clear; instead of sending the original you provided a photocopy; a document is in a foreign language, and a translation into English or French does not accompany it. Also, always check country-specific requirements for documents. When a sponsored person resides outside Canada, either additional document or original instead of a photocopy may be requested.

6. Police certificates. Whether or not you need to submit police certificates from the countries in which you resided for 6 months or longer depends on the country. It may be needed at the time of application, but not for all countries. You can check country-specific requirements here.

Also, read about the spousal or common-law sponsorship program here.

The above are the most common mistakes of returned packages that you can use a guide to check yourself before applying. It is not exhaustive though. If you need a professional eye to review your application, contact an immigration lawyer for assistance, or learn more by registering for a Spousal Sponsorship Free Webinar below.