Spousal sponsorship: inland or outland, and how genuineness is assessed

The same couple may have two routes

IRPR is the Immigration and Refugee Protection Regulations. Section 124 sets three conditions for the inland class, all of which must be met: the applicant is the spouse or common-law partner of a sponsor and cohabits with that sponsor in Canada; holds temporary resident status in Canada; and is the subject of a sponsorship application.

The second condition has an exception. A public policy under section 25(1) of IRPA (the Immigration and Refugee Protection Act) waives the status requirement, provided the applicant meets the rest: an eligible sponsor, a genuine relationship, and cohabitation with the sponsor. So having no status now does not automatically rule out the inland class. But that route runs through the public policy rather than the ordinary provision.

Processing times are not worth taking from a static figure. IRCC updates them on a rolling basis and the two routes move independently. For the current figures, use IRCC's processing times tool.

What is left after a refusal

This is the one difference between the two routes that cannot be undone. The right of appeal is set out in IRPA s.63(1):

A person who has filed in the prescribed manner an application to sponsor a foreign national as a member of the family class may appeal to the Immigration Appeal Division against a decision not to issue the foreign national a permanent resident visa.

There are two qualifiers in that sentence, and both must be satisfied.

The first is as a member of the family class. The inland class sits in Part 7, Division 2 of the Regulations as a class of its own. It is not the family class.

The second is not to issue a permanent resident visa. A permanent resident visa is issued abroad. An inland applicant is applying for permanent resident status from within Canada, so no visa is being issued in the first place.

An outland refusal can therefore be appealed to the Immigration Appeal Division (IAD). An inland refusal carries no right of appeal to the IAD; what remains in the system is judicial review.

Who can sponsor, and the income question

The sponsor

At least 18 years old; a Canadian citizen, a permanent resident, or a person registered in Canada under the Canadian Indian Act; living in Canada; and willing to sign an undertaking and a sponsorship agreement.

The residence condition works differently for the two statuses. A citizen living abroad must show they will return to live in Canada when the sponsored person becomes a permanent resident. A permanent resident living abroad cannot sponsor at all.

Income: in most cases there is no threshold

IRCC states it plainly: "In most cases, there isn't an income requirement to sponsor your spouse, partner or dependent child."

Only two situations trigger an income assessment: sponsoring a dependent child who has one or more dependent children of their own, and sponsoring a spouse or partner whose dependent child has one or more dependent children of their own. Those require a financial evaluation (form IMM 1283).

A common assumption is that spousal sponsorship requires meeting a low income cut-off (LICO). Under the current rules, most sponsors do not.

The three relationship types

Spouse: legally married to the sponsor, at least 18, in a genuine relationship, and not inadmissible. Inadmissibility is a defined set of grounds in immigration law, covering health, criminality, security and misrepresentation among others; a finding of inadmissibility blocks status.

Common-law partner: not married, but has lived with the sponsor for at least 12 consecutive months in a conjugal relationship, without long periods apart. Time spent away during those 12 months should have been short and temporary, such as family obligations or business travel. If either party chooses to end the relationship, IRCC considers it over.

Conjugal partner: neither married nor common-law, in an exclusive and mutually interdependent relationship of at least a year, living outside Canada, and unable to live together or marry for legal, immigration, social, cultural, religious or similar reasons. IRCC's own examples: one party is still married in a country where divorce is not possible; a same-sex relationship where such relationships are not accepted or same-sex marriage is illegal; an inter-religious relationship facing persecution.

The conjugal category turns on being unable to, not on not having done so yet. Falling a few months short of the 12-month common-law period does not put a couple in this category.

Working while the application is processed

An open work permit is available under the inland route. IRCC describes who can apply as: a spouse, common-law partner or conjugal partner living in Canada who is being sponsored for permanent residence, and an accompanying dependent child of the principal applicant. (The previous section noted that a conjugal partner lives outside Canada; that is a condition of qualifying as one. The wording above is what the work permit page itself says. Both are quoted as published.)

The principal applicant must also be in a genuine relationship with the sponsor; be included in a permanent residence application and hold an acknowledgement of receipt (AOR); and be living in Canada with the sponsor.

The AOR is the letter the sponsor receives from IRCC. Its number appears in the top left corner and begins with F. It means an officer has reviewed the package and confirmed it is complete.

Two situations rule out an application: the permanent residence application has been refused, withdrawn or returned; or the plan is to apply for the work permit at a port of entry.

Genuineness: the provision says "or", not "and"

IRPR s.4(1) reads:

For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or (b) is not genuine.

Two limbs, joined by "or". Either one is enough for the relationship not to be recognized.

They also look at two different points in time. Limb (a) looks at the purpose at the moment the relationship was entered into. Limb (b) looks at whether it is genuine at assessment. Two situations therefore fail: a couple genuinely living together now, where the marriage was entered into primarily for status; and a couple whose original intentions were sound, where the relationship is assessed as not genuine.

"We are together for real now" answers limb (b). The evidence has to cover two periods: how the couple met and arrived at marriage or cohabitation, and how they live now.

Situations where a genuine relationship still fails

Each route has its own exclusion provision: IRPR s.125(1) for the inland class, IRPR s.117(9) for the family class. Item for item they are nearly identical. Falling into any of them defeats the sponsorship regardless of whether the relationship is genuine, and it is assessed earlier than genuineness:

• the sponsor's undertaking for a previous spouse or partner has not yet run its course;
• at the time of the marriage, either the sponsor or the applicant was the spouse of another person;
• the sponsor and the applicant have lived separate and apart for at least a year and either is now the common-law or conjugal partner of someone else;
• proxy or absentee marriages: a marriage where either spouse was not physically present at the ceremony is not recognized. The single exception is where the absent party was serving as a member of the Canadian Forces, and the marriage is valid both where it took place and under Canadian law;
• the sponsor immigrated earlier and, at that time, the applicant was a non-accompanying family member who was not examined.

Switching routes does not get around these; both sides apply them. The last two come up often. The marriage provision reaches further than it first appears: online ceremonies during and after the pandemic, and ceremonies where the two parties were in different countries, can both fall within it. The other is a sponsor who did not declare a spouse when they immigrated, or declared them without completing the medical and background checks. The provision has exceptions, and whether one applies depends on what actually happened in that earlier application.

Decisions that are fixed before filing

Choose the route and the question of whether a refusal can be appealed is settled with it. The evidence of genuineness has to be organized around two points in time; material describing only how the couple lives now answers limb (b). The exclusion provisions are things to check before starting: who was physically present at the ceremony, whether a spouse was declared and examined during the sponsor's own immigration, whether a previous undertaking has run out. Waiting until a refusal letter arrives is past the point where any of it can be repaired.

Getting it wrong does not cost a re-filled form. An inland refusal has no appeal route; switching to outland means filing again and queuing again.

The consultation rates are here.

Common questions