Humanitarian and compassionate considerations — request of foreign national
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
*Section 34, 35 and 37 are offences related to Terrorism, Organized Crime and Human Rights Violations. Individuals who have these type of offences cannot use H&C to overcome inadmissibility. But for all other offences, the H&C section of the law can be used.
Misrepresentation Inadmissibility
Spouse who has a 5 year ban for Misrepresentation
If your spouse received a ban of 5 years to Canada for Misrepresentation, it is still possible to sponsor them for Permanent Residence despite them being inadmissible for Misrepresentation. Our immigration lawyers can help.
Situations where a spouse is found to have Misrepresented:
- Did not disclose a previous refusal to Canada or another country on a previous temporary resident application; TRV (visitor visa), Study Permit, or Work permit
- Included incorrect facts about past work experience, education or travel history on a PR application or temporary resident visa
- Fraudulent documents were included in a previous visa application by the individual or their foreign agent
- Failure to disclose information on a previous application regarding criminal charges (even those that were dismissed), or offences for which they were charged
- Issued a 5 year ban by a CBSA officer upon entry to Canada for providing false facts during questioning, or wrongfully found inadmissible due to miscommunication
How to sponsor your spouse who has a 5 year ban for Misrepresentation
Our firm represents many clients in this situation and helps overcome inadmissibility of all types, using section 25(1) of IRPA, the Humanitarian and Compassionate (H&C) section of the law.
In any Permanent Resident (PR) application, relief can be requested to overcome either an ineligibility or inadmissibility. It is extremely important to retain a Law Firm (not an immigration consultant) that has extensive experience using this section of the law to overcome inadmissibility. This cannot be stressed enough. Well drafted arguments and sufficient evidence must be provided to be successful using H&C law. This is the required work of a skilled and experienced lawyer.
Given that our firm predominantly handles more complex cases, we are a witness to many refused applications, with approximately 30% of our clients retaining our firm after using another immigration lawyer or law firm.
Relevant section of H&C law that is used to overcome Misrepresentation Inadmissibility
Humanitarian and compassionate considerations — request of foreign national
25 (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible — other than under section 34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a foreign national outside Canada — other than a foreign national who is inadmissible under section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.
*Section 34, 35 and 37 are offences related to Terrorism, Organized Crime and Human Rights Violations. Individuals who have these type of offences cannot use H&C to overcome inadmissibility. But for all other offences, the H&C section of the law can be used.
Spousal Sponsorship applications that are refused due to Misrepresentation
Individuals who receive a refusal on their sponsorship application can appeal the refusal and argue the same H&C arguments at an appeal at the IAD (Immigration Appeal Division). This is a different situation than discussed above. These individual submitted a Sponsorship application and were refused as a result of Misrepresenting facts in the sponsorship application. Or perhaps, the information provided in the Sponsorship application was not consistent with information presented in a previous application, either by the sponsor or the spouse being sponsored. If a spousal sponsorship application is refused due to Misrepresentation, H&C arguments can be presented in the IAD appeal to request relief under the H&C law. It is imperative to retain a lawyer with litigation experience at the IAD arguing Misrepresentation cases. Our firm can help with this situation as well and represent clients at a Spousal Sponsorship appeal at the IAD.
To be eligible to be a Sponsor
- You must be a Canadian Citizen, or Permanent Resident (living in Canada)
- You must be 18 years of age or older
- You cannot be in prison, bankrupt, under a removal order (if a permanent resident) or charged with a serious offence
- You, yourself, cannot have been sponsored to Canada as a spouse within the last 5 years.
To be eligible to be sponsored by a Sponsor
- You must be at least 18 years of age
- You must not be too closely related by blood to the Sponsor
Requirements that must be met in order to qualify for Sponsorship under the 3 categories
- Your relationship is genuine (real) and was not entered into primarily for the purpose of acquiring Permanent Residence
- If your spouse or common-law partner is applying in the Spouse or Common-law Partner “In Canada class”,he or she must cohabit (live) with you in Canada
Requirements AFTER sponsorship
- The sponsor is financially responsible for the person sponsored for three years after the sponsored person becomes a permanent resident.
- Individuals who come to Canada as spouses are themselves barred from sponsoring a spouse in turn for five years after receiving Canadian permanent residence.
Preparing a Spousal Sponsorship application to avoid a refusal
The Spousal Sponsorship application process is a daunting and time consuming task. It is very administrative for the most part, but can also be overwhelming and challenging should a case not be straight-forward (previous marriages, arranged marriages, marriages less than 2 years, children from previous marriages, common-law relationships) . Typical spousal applications are between 120 – 150 pages, after including all government forms and accompanying evidentiary documents. If documents are required to be translated, it can be as many as 200 pages.
The Canadian government has become increasingly more strict when reviewing applications and granting approvals. There has been a growing number of fraudulent applications from people who are using the Spousal Sponsorship application process to obtain permanent residence illegally. This has made it much more challenging to prepare a strong application that will be approved without issues. Often, when individuals attempt to apply on their own, the application is weak and the visa officer is not convinced of the genuineness of the relationship. They will either request an interview for both people, issue a procedural fairness letter requesting more evidence with further explanation, or an outright refusal. Approximately 40% of the clients our firm retains is after a refusal when they apply on their own.
What if my Sponsorship application is refused?
Inland Spousal Sponsorship applications are not eligible for an appeal; individuals will need to re-apply. Outland Spousal Sponsorship applications are eligible, and an appeal must be filed within 30 days of receiving the refusal letter, otherwise the decision will be upheld. If you have been refused, our firm can help you file an appeal at the IAD (Immigration Appeal Division).
Why did my Spousal application get refused?
The IRCC is largely to blame for the large number of refusals. The IRCC post forms online with instructions on the process, giving the impression that the process is easy and can be done by yourself. Only after starting the process on your own and having the application returned or refused, will a person understand the complexity involved. If an application is returned for using outdated forms, or for being incomplete, it will delay the process by 2 to 3 months. If an application is refused, PR will not be granted for over 2 years. If the application was an Outland application, and your spouse comes from a non visa-exempt country which requires a TRV visa to travel to Canada, they will not be able to travel to Canada for a minimum of 2 years, unless they already have a TRV visa. After a refused spousal application, the IRCC will not approve a TRV visa.