Please note that Alastair Clarke will be giving a free presentation on citizenship law and other changes to immigration law at Transcona Library as part of the Law in the Library Series presented by the Community Legal Education Association.
Are you new to Canada? Are you looking for help in some legal aspects of immigration? Join us for a free program to help provide you with legal information that you may need. Our guest lawyer Alastair Clarke will cover issues like immigration options, sponsorship, citizenship applications, bringing family members to Manitoba, MPNP and other options. Please bring questions for the lawyer to answer!
For more information, contact the library directly at 204-986-3954.
As expected, the hugely successful Open Work Permit program for applicants under the In-Canada Spousal Sponsorship application has been extended for another year. Part of the announcement:
Ottawa, December 7, 2016 — Family reunification is a core immigration priority for the Government of Canada. In addition to the changes made today to process spousal sponsorship applications faster, we are also extending the open work permit pilot program until December 21, 2017, to give spouses a chance to work while their application is being finalized.
To be eligible for an open work permit, you must be a spouse or common-law partner living in Canada who is being sponsored under the spouse or common-law partner in Canada (SCLPC) class. You must have valid temporary resident status (as a visitor, student or worker) and live at the same address as your sponsor.
Could Manitoba become a north-of-the-border love nest for Americans escaping the prospect of a Trump presidency?
It could if you believe the hype surrounding the website MapleMatch.com and its promise to save Americans “from living through a Trump presidency by finding genuine ready-to-marry Canadians.”
‘My advice to Canadians who wish to help their American neighbours through a sponsorship application is to make sure they develop a relationship before they get married’
WAYNE GLOWACKI / WINNIPEG FREE PRESS Winnipeg Immigration lawyer Alastair Clarke says scrutiny is thorough when it comes to immigration and relationships.
Talk shows and cable news channels have joked about the website started by an Austin, Texas man who reportedly supports Democratic presidential hopeful Hillary Clinton. It says it is signing up people on both sides of the border but isn’t as yet a full-fledged matchmaking website.
But if it ever gets up and running, MapleMatch.com may not be as sweet of a deal as it sounds, says a Winnipeg immigration lawyer who is the product of a cross-border coupling.
Alastair Clarke said cross-border matches may be easier to make today thanks to the Internet, but immigrating is a lot harder than it was back when his Canadian mom and American dad met and fell in love at university in Chicago.
“Marriages between American and Canadian spouses face significant scrutiny by IRCC (Immigration, Refugees and Citizenship Canada) officers,” he said. Under Canadian law, couples have to show their relationship is both “genuine” and not for the “primary purpose” of immigration, said Clarke. Immigration officers have broad discretionary powers to conduct interviews and investigate the marriage to ensure the application meets the legal tests, he said.
“My advice to Canadians who wish to help their American neighbours through a sponsorship application is to make sure they develop a relationship before they get married,” said Clarke. The Federal Court of Canada has confirmed the time leading up to the marriage date is significant during the “primary purpose” investigation, he said. “The relationship should have breadth and depth before the wedding.” Couples who choose not to get married can file an application as common-law partners or conjugal partners, but those applications have to meet additional requirements, he said.
Would Americans seriously consider abandoning their country for the Great White North if Trump becomes president? Maybe, says the spokesman for the Council on American Islamic Relations.
“In the past we’ve joked about this kind of thing whenever there is a new Islamaphobic policy or some issue targeting American Muslims,” said Ibrahim Hooper in Washington, D.C. “I think people aren’t laughing as much anymore,” he said Friday.
The non-profit council doesn’t take a political position, he said. “We merely react to anti-Muslim rhetoric,” and Trump’s anti-Muslim rhetoric has already hurt people even though the presumptive Republican nominee hasn’t won the presidency. One example he cited was a Muslim woman attacked in Washington by a Trump supporter, who said “When Trump gets in, you guys are gone.”
“He really has mainstreamed Islamaphobia in America,” Hooper said. “That is a really troubling phenomenon that will remain whether or not he is elected president.” Trump losing is nearly as worrisome as is his winning, he said. “It makes you wonder who will be blamed and targeted by his supporters.”
Talk of leaving the U.S. — so far — is just talk, said Hooper. “It’s mainly in comments online and in the discussion phase right now.” He hasn’t yet heard of any American Muslim feeling so threatened they’re planning to take refuge in Canada.
AN American spouse can live and work in Canada during the processing of their application, says immigration lawyer Alastair Clarke. He offered a few more details about the process and his experience with clients trying to bring their American beloved to Manitoba.
Immigration, Refugees and Citizenship Canada (IRCC) implemented a pilot project that gives qualified Americans an open work permit, the most flexible type of work permit. The current processing time for a spousal sponsorship application in Canada is more than two years. This work permit benefits couples who can live and work together in Canada while they are waiting for the permanent resident visa. Warning: applications filed in Canada cannot be appealed to the tribunal, so the couple should have evidence to show a strong relationship.
For couples who can be apart during processing, the average wait time for a Visa Office appointment in the U.S. is 15 months. The American spouse can visit Canada during this time, however, they should be prepared to attend an interview with short notice, and they should make arrangements to have someone check their mail. In many cases, applications are refused because the applicant did not get a request for additional documentation. Email correspondence is increasingly common, but IRCC still uses the postal service.
In one case, an immigration officer visited the neighbourhood of the applicant and talked to their neighbours to see if they were aware of the relationship. The neighbours had never heard of the Canadian spouse and the application was refused. It was appealed and won on appeal.
In another case, the American spouse forgot about a DUI conviction from his college days, and they submitted the application without a Police Clearance Certificate. When the FBI report was issued, the officer determined the American had misrepresented his information and refused the application. He was inadmissible to Canada. That decision was challenged and overturned by a tribunal.
A Manitoban with health issues fell in love with her American caregiver. The American had a criminal issue and was ordered to leave Canada. Clarke said they helped them with a Temporary Resident Permit application to keep the American in Canada and are now helping them with their sponsorship application.
I recently met with a young Norwegian professional who wanted to know how to become a Canadian citizen. After I explained some of paths from temporary status (which he had, as a visitor) to permanent resident status to citizenship, he was visibly frustrated and said, “this is too complicated. I just want the form to become Canadian.” I had to admit that he’s right: the system is complicated. (And wouldn’t it be nice to have such a form?) Our former government made things more complicated by adding even more levels to our robust hierarchy of statuses. The most significant additions were the creation of “conditional permanent resident status” in 2012 (for Applicants in a spousal sponsorship application) and, with the changes to our Citizenship Act,“second class” Canadian citizens in 2014. Those changes are now being reversed by the current government. There still isn’t any plan for a form for my new Norwegian friend but we seem to now be on a path to simplify the system.
Conditional Permanent Resident Status
Within the immigration bar, there were advocates for and against the creation of the “conditional” PR status before the 2012 amendments. We had all had clients like Cindy Green who came to us after their application has been approved and their spouse had ditched them after getting status. We met them, heartbroken, and they asked us to have their spouse removed. There was not a lot we could do. Most did not carry a door on their backs to Parliament but kudos to Ms. Green for shining light on the issue. I wish I could say these cases are rare but they are not. The creation of the conditional status (for 2 years) was a sincere attempt to resolve these issues but, unwittingly, created new issues. TStar reporter, good ol’ Nick Keung (what would we do without him?), wrote a nice piece outlining some of the issues:
The proposed amendments are part of a Liberal election campaign commitment and come on the heels of a new study that found women, racial minorities and those from Muslim-majority countries are disproportionally slapped with so-called “conditional permanent resident visas,” prompting concerns that they are forced to stay in abusive relationships to avoid losing their status.
To be fair, the legislation included protections for spouses in abusive relationships. That was a key concern from the start. But there is a big difference in drafting legislation that attempts to mitigate negative consequences and then the realities of misinformation and the precarious situation of the new immigrants. Unfortunately, many of the individuals negatively affected are unsophisticated and they rely on friends and family to explain the law. “You better put up with me for me for at least 2 years or I will have you deported.” This report documented the real dangers faced by new immigrants with “conditional” status. In the end, the victims of domestic violence (generally women) found themselves in situations of compounded fear that they would be deported if they sought help.
Protect the Applicants … or the Sponsors?
Our current government announced that it will reverse the changes and eliminate conditional permanent resident status. Personally, I agree that the reversal will help to protect many victims of abuse. (I also appreciate the effort to simplify the system and shrink the hierarchy of statuses but I’ll leave this point for another post.) The question becomes: what are the Liberals going to do to help the Permanent Residents and Canadian citizens, sponsors like Cindy Green, who find themselves, heart in hand, abandoned at the airport?
I initially planned to also address the proposed changes to citizenship law and amendments to the TFWP (cover all the groups of statuses) but that is going to have to wait for another week. The Slaw-bot has reminded me that my copy is due.
These past few weeks have been very busy and we wanted to thank everyone for their support. At the PCCM event on Jan 30th, more than 100 people came to the event. The room was full and the audience was engaged. Last night, we have a presentation at Munroe Library in Winnipeg and, again, the room was packed and there was active participation. We met folks from Ukraine, Philippines, India, Pakistan, the USA, Nigeria, Egypt, Australia, El Salvador and many others. We answered many immigration questions. Here are some of the questions that Mr. Clarke answered during the 5 hours of presentations:
If my Super Visa is going to expire but my husband has submitted an In-Canada Spousal Sponsorship application, do I need to apply to extend my Visa?
Can I sponsor my brother in Punjab?
If my MPNP application is refused, how do I appeal the decision?
I want my mother from the Philippines to come and take care of my children. How do I bring her to Canada?
MPNP is no longer accepting applications from Nurses and my sister is a Nurse. How I can I help her come to Manitoba?
My son married a woman from Wisconsin and she has children from a previous marriage. Do the children become Permanent Residents too?
What are the benefits of becoming a Canadian citizen?
If I become a citizen, do I lose my American citizenship?
My brother was refused entry to Canada but we don’t know why. How can we find out?
How long does it take for a MPNP application?
How many people can I support for MPNP applications?
My brother wants to come to Canada but he is not sure if he will come to Manitoba. He is interested in Toronto. If I help him with his MPNP application, can he move to Toronto? Can Manitoba come after me?
How long does it take to process a Parental Class application?
We sat down with Alastair Clarke, Barrister & Solicitor, to discuss ways to win a Spousal Sponsorship Appeal. Mr. Clarke has handled many of these over the years. Hopefully, these questions and answers will help you and your family reunite in Canada.
Q: What is the most important factor to win a Spousal Sponsorship Appeal?
A: Good question. As I learned from my mentor, Mendel Green, Q.C. (a.k.a. the Godfather of Canadian Immigration Law), the most important factor is PREPARATION. The Sponsor and the Applicant will both provide oral testimony at the tribunal. The representative of the government will be cross-examining both of them, as well as any other witnesses. The cross-examination may be thorough and they may ask questions about any aspect of the application. Credibility is frequently a big issue at the hearing. In addition to the cross-examination, the Member (ie. Judge) may also ask probing and direct questions of the Sponsor, Applicant and witnesses. In my experience, the best way to prepare for the hearing is to prepare, prepare and prepare!
The biggest difference between a successful case and a refusal is preparation.
Q: What are the most common reasons for refusal?
A: I won’t be able to discuss all the reasons that I seen applications refused but I can cover the most common reasons why Spousal Sponsorship applications are refused:
Genuine Marriage – the CIC Officer determined, for a variety of reasons that the relationship was not real and the subsequent marriage is not genuine. This is surely the most common reason that applications are refused.
Primary Purpose test – the CIC Officer determined that the marriage was entered into primarily for immigration purposes. This has become increasingly common and it is a common reason for refusal for Arranged Marriages.
Q: What happens at the Tribunal?
A: The hearing at the tribunal, the Immigration and Refugee Board, Immigration Appeal Division, is a hearing de novo. “Hearing de novo” is a legal term that means that the tribunal makes a new determination based on everything that has happened with the individuals right up to the time of the hearing. In other words, the tribunal is not limited to the documents that were sent to CIC the time of the application. In other cases, lawyers are restricted to rely only on evidence that has been previously submitted to the original decision-maker and we cannot submit new evidence. The fact that Spousal Sponsorship appeals are hearings de novo is a significant tool for us to win cases.
Q: What is the craziest case you have handled?
A: I have handled many “crazy” cases over the years. Back in 2007, when I was an articling student at Green & Spiegel LLP in Toronto, I helped a couple from Hungary whose Spousal Sponsorship was refused. The husband was 70 years old and his spouse was 19 years old at the time. The husband had been married many times before in Canada and he was getting back to his roots in Hungary. We called many witnesses at the IAD and the best witnesses were the parents of the spouse. They were much younger than the husband but they got along with him very well. They gave extensive testimony about how he treated her as his wife and they were fully supportive of the relationship. Despite the 51 year age difference, we won the appeal.
Sometimes the “crazy” cases seem very normal at first. Another case I handled involved a sweet couple from India. On paper, they were the perfect couple. They came from families who were very well connected and they had known of each other for many years prior to the marriage. Their wedding was a large, traditional ceremony with more than 1000 people who celebrated. They provided extensive evidence of their history and their relationship.
Q: So why was that one refused?
A: I did an investigation into the application and discovered that the bride’s sister was promised to a man from another family. At the last minute, she refused to get married and he was deeply affected. His family was very angry and they sought revenge. We discovered that his family called the Canadian Immigration Hotline and they reported that the marriage of my clients was a sham. The CIC Officer took notes and included a “poison pen letter” in the file with details.
Q: Did you win?
A: Yes, we were able to prepare our clients and they gave testimony on the situation. The IAD accepted that the “poison pen letter” was not credible and we won the appeal.
Q: What is the biggest challenge with Sponsorship Appeals?
A: One challenge is the long wait. From the time we file the Spousal Sponsorship appeal, it can take up to 18 months until we actually have our hearing at the tribunal. During these 18 months, we advise our clients to be with their spouse and/or their families. It is very important that they maintain a strong relationship right up to the date of the hearing. We work with the IAD to get a positive result as quickly as possible.
Q: Which case are you most proud of?
A: I love these appeals. Helping couples reunite in Canada is one of the best parts of my job. Over the course of the many months before a hearing, I get to know the families and the couple very well and it is a pleasure to be part of their lives.
One case that stands out is a case we won quite recently. The Sponsor is a refugee who has suffered medical issues and she is unable to birth a child. She met an old friend who had a son with a previous relationship. The Sponsor fell in love with her old friend and his son and they dreamed of having a life together in Canada. She filed the Sponsorship application but it was refused because the CIC Officer did not believe the marriage was genuine. This was a complex case and we called many witnesses. There were issues with interpretation and credibility. Part of the problems was that she had previously tried to sponsor a spouse and she admitted that it was only for immigration. In the end, we won the appeal and our client is with her son in Canada. Her husband (the Applicant) will be joining them soon.
Immigration applications through Citizenship and Immigration Canada (CIC) can move very slowly depending on the processing office, the type of application and the representative. We deal with all types of applications on a daily basis to make sure our clients receive a decision as quickly as possible. The most common reason for delay is that applications are sent to the Visa Office that are incomplete. Incomplete applications will not be processed and all the documents will be returned.
After an application has been compiled, organized and properly submitted, it can be frustrating to wait while CIC processes the documents. Clients, of course, are anxious to have their applications processed. There are different ways for applicants and representatives to check the application status online:
CIC’s Online Service
Applicants can check the status of their applications online using the service provided by Citizenship and Immigration Canada. Applicants can select their application, a Work Permit for example, type in their particulars and they can see whether the ap plication is in process.
Typically, we get mixed reviews from the Online Service. If an Applicant has multiple applications, the website does not clearly identify the different applications. In addition, the website provides scant detail on the progress of the application. We have had issues where a Visa Officer has sent out a letter requesting additional documentation (or, for example, updated medicals) but the Applicant failed to receive the letter. They checked online and there is no information about the Officer’s request.
CIC’s Online service is useful to confirm that the application was properly submitted and that it is in process. After that, it provides very little benefit.
CIC’s Portal for Authorized Paid Representatives
When a lawyer prepares the application and submits the documents through the CIC Portal, the lawyer can check the status online. It provides much more information that the Online Service above. The lawyer is able to see all the documents that have been submitted and each step along the process is checked.
This is a valuable service for clients and lawyers alike.
Average Processing Times
CIC publishes the average processing times online, generally on a quarterly basis. We encourage clients to take this “average” with a grain of salt. For example, the current average processing time for an Application for Permanent Residency based on Humanitarian and Compassionate Considerations (H&C) is 30 to 42 months. There are many H&C applications currently in process.
In another case, we assisted another family in Winnipeg with an H&C application and it was approved in less than 12 months. That said, we have contacted other immigration lawyers in Canada and we have been advised that there are currently some H&C applications that have been pending for more than 60 months.
What Can You Do After You Check Application Status?
CIC Officers and Visa Officers are individuals. They work hard and there are internal priorities within the Visa Offices. That said, after you check application status, you can contact your lawyer and ask him or her on ways to speed things up. It may be possible to work with the Officer and request expedited processing, depending on the circumstances.
If your application has been in limbo for a long time, ask your lawyer about filing a Mandamus Application with Federal Court. They have the power to ensure the CIC Officer or the Visa Officer makes a decision in a timely manner.
Alastair Clarke will be giving a free presenting on Canadian Immigration Law at Munroe Library (489 London Street) on Monday, February 8th, 6:30 to 8 pm. This is part of the Law in the Library series provided by Community Legal Education Association. The public is welcome to attend and we encourage audience participated. Please note that we cannot provide individual legal advice. Topics include:
Alastair will be providing general information on Canadian Immigration law and how to open doors to Canada. He will not, however, be providing specific legal advice on individual applications. If you require legal advice on a particular case or application, please contact our office and we can help you schedule a consultation. Please note that our consultation fee is $200 CAD plus GST and we provide up to 1 hour of time. All our fees are available here.
Law in the Library: Education for the Public
The Law in the Library series is designed to help the public with legal issues. Alastair Clarke has been educating the public on various topics since 1999. He specializes in opening doors to Canada. Before relocating to Winnipeg, he practiced for many years in Ontario where he provided training to lawyers, paralegals and front-line workers for Legal Aid Ontario at the Annual Training Conference (2010, 2011) and he taught Immigration and Refugee Law at Seneca College.This an opportunity for you to learn from his expertise!
