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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2 Comments
  • mrwwong@yahoo.com'
    Wally
    Reply

    Hi Miss Elliot,

    There is a problem I have run into which needs your advice.

    I am a Canadian citizen, a non-resident who have been working and living in Hong Kong for 19 years. My wife is a Hong Kong citizen and we have two kids born in Hong Kong who have also got the Canadian citizenship through me.

    We have been planning to move back to Toronto this August and in December 2016, I applied outland to sponsor my wife for permanent residency. After about 6 months of waiting, I got a letter of rejection because they said I, as the sponsor, do not show any intent to relocate back to Canada should my wife’s visa be approved and I was given 30 days to submit more documents to support my plan.

    I was surprised because I thought I had submitted enough documents. Nevertheless, I submitted 3 more pieces of documents right away which I thought would definitely be sufficient. They were the resignation letter to my current employer, the Agreement of Purchase and Sale for the condo I bought in May, and the one-way plane tickets for myself and my 2 children. In the past few months or so, I have been working on my imminent move back to Toronto in August. I had believed that resigning from my current job in Hong Kong, buying a place to live and getting a one-way plane ticket would be the most convincing proof.

    Unfortunately, I got the refusal letter through e-mail on June 19 from the Immigration Officer stating that I was still not able to convince them of my intent to move back and that the only way the decision can be reverted is through IAD. Then I called the IAD in Toronto and they told me the process could take 2 years or more.

    I was in shock because my plan was totally disrupted. Now, there are several questions I would like to ask you:

    1) Which way shall we pursue? To appeal the decision or to re-reapply in-land when I move back to Toronto? (We will be back to Toronto on August 16)

    2) Is there any restriction on re-application after being rejected?

    3) Can my wife apply for an open work permit while waiting for appeal or is it easier to get an open work permit when she is reapplying?

    Thank you very much for your time and your help is greatly appreciated.

    • b.mcfarlane@solubec.com'
      Brian McFarlane
      Reply

      Dear Wally,

      Thank you for your comment. I’m sorry to hear of your issues with immigration. I’m sure we can help you with your situation. It’s important to understand that there are major differences between reapplying and appeals. In order for us to better assist you, I recommend booking a consultation with one of our lawyers. To book a consultation please send an email to: info@canadaimmigrationlawyers.ca

      We look forward to hearing from you soon. Have a great day!

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