Spousal Sponsorship denied: What Options Do You Have?


Nancy Elliott
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Here are some of the options available to you when spousal sponsorship was denied

When an overseas spousal sponsorship has been refused, the sponsor will receive a letter indicating that an appeal can be made to the Immigration Appeal Division to contest the decision. The sponsor will have 30 days from the day that the letter was received to file the appeal. The couple may also choose to re-submit a spousal sponsorship application.

Appeal
Once an appeal has been filed, the Minister of Citizenship and Immigration Canada must submit a complete copy of the file (called the “Record”) to the sponsor within 120 days. The Immigration Appeal Division will then decide if the case can be settled within an Alternative Dispute Resolution (ADR) Conference. The scheduling of an ADR is currently about 3-6 months within receipt of the Record. If the file is not determined suitable for an ADR, it will proceed to a full appeal hearing which can currently take about one year and a half for scheduling.

Re-Apply
Once a spousal sponsorship has been refused, the couple can always re-apply. Of course, immigration will have on file the previous refusal, and it is crucial to point out and explain discrepancies which were in the previous application.

Appeal or Re-Apply?
It is important to clearly understand the impact of appealing or re-applying following a refusal. Should the appeal option be chosen, the couple must understand that losing the appeal will result in the following: unless a new fact arises in the file, the sponsor may no longer sponsor his/her spouse ever again given that the Immigration Appeal Division has already decided on this matter. This is called res judicata.
It is recommended to only appeal if the spousal sponsorship application was prepared properly and contained all relevant documents and information. Many people submit incomplete applications and this results in a refusal. These cases should not be appealed and should instead result in a re-application. Re-applying has a much fast processing time (usually between 6-12 months depending on the country) versus an appeal which can take over a year. Should the second application be refused, the sponsor will always have the option of appealing that refusal. However, if the application was submitted adequately and the denial contains glaring errors, then an appeal might be the best choice.
Before deciding on appealing a refusal of a spousal sponsorship application or re-applying, ensure you consult with an immigration lawyer to clearly understand both avenues.

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ABOUT THE AUTHOR
Nancy Myles Elliott is a business person and lawyer, focusing on solutions for individuals and companies seeking to invest or relocate in Canada. Ms. Elliott leads her own law firm, focusing on immigration and citizenship law, as well as advising on corporate legal matters relevant to new immigrants.
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