Can you sponsor a spouse who has overstayed in Canada?

Scenario as posted on LinkedIn: Jian, a Chinese national, has been living in Canada without valid legal status after his temporary residence expired. Recently, he married Sarah, a Canadian citizen. Sarah wants to sponsor Jian under the Spouse or Common-law Partner in Canada Class. However, Jian has overstayed his visa and does not have valid temporary resident status. The question arises: can Sarah sponsor Jian under this class despite Jian’s lack of valid legal status in Canada?

Correct Answer

Yes, public policy.

Under the current public policy established under Section 25(1) of the Immigration and Refugee Protection Act (IRPA), Jian can apply under the Spouse or Common-law Partner in Canada Class despite lacking valid temporary resident status. This public policy was specifically introduced to facilitate family reunification and exempts the requirement of valid status under R124(b) of the Immigration and Refugee Protection Regulations (IRPR).

Let’s examine the reasoning supported by public policy and regulations and explain why the other answers are incorrect.

Why the Answer is Correct: Yes, Public Policy

Exemption from R124(b) Under the Public Policy

Regulation R124(b) requires applicants under the Spouse or Common-law Partner in Canada Class to have valid temporary resident status in Canada. However, the Public Policy to Facilitate Processing in the Spouse or Common-law Partner in Canada Class allows out-of-status spouses or common-law partners to apply if they meet the other criteria of the class. According to the policy:

1. Purpose: The public policy addresses humanitarian concerns and prevents hardship by allowing couples already living together in Canada to remain united.
2. Exemptions Granted: The policy specifically waives the requirement under R124(b) for valid status and the inadmissibility related to the lack of status under A21(1) and R72(1)(e)(i). Applicants must still meet all other eligibility requirements, including having a bona fide relationship and a valid sponsorship.
3. Who Qualifies as Out of Status: The policy applies to individuals who:
   • Overstayed a visa, visitor record, work permit, or study permit.
   • Worked or studied without authorization.
   • Entered Canada without the required visa or travel document (provided they obtain valid documents before permanent residence is granted).

Key Requirements for Jian’s Eligibility

Jian can benefit from this public policy because:

• His lack of status results from overstaying his visa, which is covered by the policy’s definition of “lack of status.”
• His marriage to Sarah is genuine, fulfilling the bona fide relationship requirement.
• Sarah, a Canadian citizen, can provide a valid sponsorship undertaking.

Reference to Official Sources

The public policy found here explicitly outlines this exemption. Practitioners should refer to the policy’s conditions and IRPR provisions for guidance. Please note that the public policy refers to A25(1) (i.e., the applicant’s request) instead of A25.2 (public policy). While still in effect, the policy was issued in 2005 when A25.2 didn’t exist. This section was added to the IRPA in 2010. 

Why the Other Answers Are Incorrect

“No, R124(b)”

This answer is based on the strict interpretation of R124(b), which states that applicants must have valid temporary resident status. While this regulation applies to the Spouse or Common-law Partner in Canada Class, it does not account for the public policy exemption. Without considering the public policy, this response is incomplete and incorrect.

Practitioners must be aware of the exemptions provided under A25(1) IRPA, which override regulatory requirements like R124(b) in cases of humanitarian considerations.

“No, non-compliance”

This answer suggests that non-compliance with immigration status disqualifies the applicant. However, the public policy explicitly addresses this concern by waiving inadmissibility due to lack of status under R72(1)(e)(i). Jian’s non-compliance with immigration rules (e.g., overstaying his visa) does not bar him from applying for this class as long as he meets the other criteria.

Important Note for Practitioners: While non-compliance typically results in inadmissibility, this public policy is an exception created to accommodate out-of-status spouses and partners of Canadian citizens and permanent residents.

“Yes, spouses exempt.”

This answer incorrectly assumes that all spouses or common-law partners of Canadian citizens are automatically exempt from the requirements of R124(b) or other IRPR provisions. While there is a pathway for sponsorship, exemptions are not automatic and are granted under a specific public policy. Applicants must meet the criteria outlined in the public policy, including submitting a valid sponsorship undertaking and proof of a genuine relationship.

Practitioners must ensure clients understand that the public policy provides the exemption and that not all spouses are universally exempt from status requirements.

Practical Guidance for Practitioners

• Documentation: Ensure the applicant provides evidence of a genuine relationship (e.g., marriage certificate, cohabitation proof, and supporting affidavits).
• Public Policy Reference: Include references to the public policy in the application to clarify the exemption from R124(b).
• Lack of Status: Document how the applicant’s lack of status falls within the definitions provided by the public policy (e.g., overstayed visa).
• Sponsorship Undertaking: Confirm the sponsor’s eligibility and submit a valid sponsorship undertaking.

Conclusion

In Jian and Sarah’s case, the correct answer is that Jian can apply under the Spouse or Common-law Partner in Canada Class due to the public policy exemption under A25(1) IRPA. While R124(b) would normally disqualify out-of-status applicants, this policy facilitates family reunification and prevents undue hardship. Practitioners should always consider relevant public policies when advising clients in similar situations. If you need more information, consider booking a consultation session.