Conjugal ?

[Depa]

Hi guys, I need some advice I’ve come to canada as a PR in December 2022 I found a job and started working now. I have a girlfriend who’s from Philippines she was married or technically still married as there’s no divorce in her country. We met while working together in Kuwait and have been together for more than a year. Oh we are in a same sex relationship. How can I get her to come to canada? Please advise

 

[armoured]

Did you trade together for more than a year?

And first step should be to apply for a visa for her.

 

[armoured]

Hi guys, I need some advice I’ve come to canada as a PR in December 2022 I found a job and started working now. I have a girlfriend who’s from Philippines she was married or technically still married as there’s no divorce in her country. We met while working together in Kuwait and have been together for more than a year. Oh we are in a same sex relationship. How can I get her to come to canada? Please advise

Short form answers are:
-if you lived together more than a year and have documentation of such, you can apply common law. Likely not the case.

-she should apply for temporary resident visa (visitor visa). If approved, she comes and you reside together for 12 months to become common law.

-But the expectation is that she will be refused. That's normal and in your case, necessary to apply for conjugal.

-Conjugal requires two barriers: one legal, and one immigration - the legal is that you cannot get married because she cannot get divorced in PH. (If she can get divorced where she is, that may be better).

-The immigration barrier is that you cannot realistically/practically live together while you are in Canada and she has been refused visa.

This is somewhat simplified. I reiterate though that if she can get divorced and you can find a jurisdiction in which to get married, that will be - likely - easier than conjugal. Because it is potentially open to abuse / use by those not in real relationships/marraiges, it can take longer and be more complicated than normal spouse sponsorship.

 

[Xilikon]

With Philippines law, the only way to do this is to get an annulment (no divorce laws) but it is a very expensive and very lengthy process with an uncertain outcome.

I don't think it is possible to apply for conjugal because there is no travel restriction, meaning that you can find a way to meet and be together somewhere in the world. You cannot tell if it is not possible due to financial or logistical reasons. Since you can have an annulment too, this make it a lot less likely to apply for conjugal as this is for certain specific circumstances.

The best way is to find a way to be together for 12 months and has documented proof of common law then apply under that category. This is unless you already have enough proof of the time you lived together (i think it can be done if you get lucky having the needed proof).

 

[armoured]

With Philippines law, the only way to do this is to get an annulment (no divorce laws) but it is a very expensive and very lengthy process with an uncertain outcome.

I don't think it is possible to apply for conjugal because there is no travel restriction, meaning that you can find a way to meet and be together somewhere in the world. You cannot tell if it is not possible due to financial or logistical reasons. Since you can have an annulment too, this make it a lot less likely to apply for conjugal as this is for certain specific circumstances.

The best way is to find a way to be together for 12 months and has documented proof of common law then apply under that category. This is unless you already have enough proof of the time you lived together (i think it can be done if you get lucky having the needed proof).

I disagree on what may be the practical aspects of your conclusion:
1) The situation of divorce being effectively forbidden in PH and very limited ability to get annulments is VERY well known at IRCC and judging only by reports here, it seems that married PH citizens actually represents perhaps half of the total conjugal partners caseload. (This is purely my guess).

At any rate: no need to worry - in my opinion - that IRCC will not take this seriously or think that the applicants should have found some other way. They will almost certainly not require the applicant to attempt to get an annulment, or refuse on that basis.

[Side note: not so much of course if the PH citizen is in a country where divorce can be done, which is a bit unclear from the post, but let's take that as a given since in many countries hard to get divorced if you're not either a citizen or with permanent status of some kind.]

2) There is speculation here from time to time that it may be 'easier' to reside abroad and that therefore the Canadian spouse (whether PR or citizen) should move abroad and live with the other spouse instead. BUT: I can't find / haven't seen a single case where the response from IRCC has been to refuse a case because the sponsor could have/should have moved abroad to establish common law. (In fact recall a case where there was no legal barrier to marriage at all but the sponsor refused to get married because of opposition to marriage- did not get refused. I dont' recommend, but just as an example).

IRCC seems to treat this as I think the program was intended by government - that Canada mostly expects that the reason spousal sponsorship (and conjugal) exists is to allow Canadians (PRs or citizens) to reside in Canada with their spouses, and the govt should not be in business of making them reside abroad to be able to return. Not to mention the practical aspects, like ability to work, etc.

Now that said: my opinion is that it is always superior to get married if legally possible, or to use existing common law status (eg having already resided together before). But if neither of those is possible, and the foreign partner cannot get a visa to Canada, then that is EXACTLY what the conjugal program was intended for. (Of course if the couple want to reside together abroad for a year and then apply, no argument from me - it just may not be practical or possible for many).

For same sex couples (neither married), it really is often/usually/maybe always better to travel to some jurisdiction where they can get married, and this is increasingly widespread worldwide. But for PH citizens who can't get divorced, there may not be other practical alternatives.

 

[Ponga]

From section 5.24 of ip08:




5.24 Sponsor or common-law partners still married to someone else

Persons who are married to third parties may be considered common-law partners provided their marriage has broken down and they have cohabited in a conjugal relationship with the common- law partner for at least one year.

Cohabitation with a common-law partner must have started after a physical separation from the spouse. Evidence of separation from the spouse may include

a separation agreement;

a signed formal declaration that the marriage has ended and that the person has entered into a common-law relationship;
a court order regarding custody of children; and documents removing the legally married spouse(s) from insurance policies or wills as beneficiaries.

 

[Xilikon]

I disagree on what may be the practical aspects of your conclusion:
1) The situation of divorce being effectively forbidden in PH and very limited ability to get annulments is VERY well known at IRCC and judging only by reports here, it seems that married PH citizens actually represents perhaps half of the total conjugal partners caseload. (This is purely my guess).

At any rate: no need to worry - in my opinion - that IRCC will not take this seriously or think that the applicants should have found some other way. They will almost certainly not require the applicant to attempt to get an annulment, or refuse on that basis.

[Side note: not so much of course if the PH citizen is in a country where divorce can be done, which is a bit unclear from the post, but let's take that as a given since in many countries hard to get divorced if you're not either a citizen or with permanent status of some kind.]

2) There is speculation here from time to time that it may be 'easier' to reside abroad and that therefore the Canadian spouse (whether PR or citizen) should move abroad and live with the other spouse instead. BUT: I can't find / haven't seen a single case where the response from IRCC has been to refuse a case because the sponsor could have/should have moved abroad to establish common law. (In fact recall a case where there was no legal barrier to marriage at all but the sponsor refused to get married because of opposition to marriage- did not get refused. I dont' recommend, but just as an example).

IRCC seems to treat this as I think the program was intended by government - that Canada mostly expects that the reason spousal sponsorship (and conjugal) exists is to allow Canadians (PRs or citizens) to reside in Canada with their spouses, and the govt should not be in business of making them reside abroad to be able to return. Not to mention the practical aspects, like ability to work, etc.

Now that said: my opinion is that it is always superior to get married if legally possible, or to use existing common law status (eg having already resided together before). But if neither of those is possible, and the foreign partner cannot get a visa to Canada, then that is EXACTLY what the conjugal program was intended for. (Of course if the couple want to reside together abroad for a year and then apply, no argument from me - it just may not be practical or possible for many).

For same sex couples (neither married), it really is often/usually/maybe always better to travel to some jurisdiction where they can get married, and this is increasingly widespread worldwide. But for PH citizens who can't get divorced, there may not be other practical alternatives.

1) It is possible de get divorced but it usually requires the one requesting the divorce to be a PR of a given country which I think isn't the case here.

2) By reading the cases about conjugal, I had the impression it must be proven there is no other way or difficult obstacles. Since the common-law path is still doable and reachable for both, as proven by then living together in Kuwait, I guess they would like to see them take this path.

My comments were from my observations but you may be also right as I think you might have read more cases. I'm just talking from the PH experience as I'm married to a Filipina wife and seeing the culture and laws for a few years now (I also am a member of some fb groups about Philippines expats and the topic of divorce and annulment is often posted and commented all the time).

 

[armoured]

1) It is possible de get divorced but it usually requires the one requesting the divorce to be a PR of a given country which I think isn't the case here.

2) By reading the cases about conjugal, I had the impression it must be proven there is no other way or difficult obstacles. Since the common-law path is still doable and reachable for both, as proven by then living together in Kuwait, I guess they would like to see them take this path.

My comments were from my observations but you may be also right as I think you might have read more cases. I'm just talking from the PH experience as I'm married to a Filipina wife and seeing the culture and laws for a few years now (I also am a member of some fb groups about Philippines expats and the topic of divorce and annulment is often posted and commented all the time).

1. I fully agree on this, IRCC also seems to accept that divorce/annulment is basically impossible or insurmountable in PH - and yes, most countries will only allow you to get divorced if you reside there (and in many countries 'reside' is interpreted to mean having formal status - i.e. I doubt the individual could get divorced in Kuwait - but that's only my impression).

2. Make no mistake, IRCC does not want to make conjugal 'easy' - but I think this has been exaggerated here by some individuals opining that "well you could just go live with your spouse in XXX country for a year." Not to mention that in many countries residing together AND having documentation of that can be almost impossible and/or illegal.

Even if (in the specific case above here) the couple both lived in Kuwait, one is now a PR, and I do not think it is Canadian policy to make a PR leave Canada and live abroad in order to qualify.

Note that the obverse - the potential applicant being inconvenienced to come and live in Canada - is NOT discouraged, because the couple (reportedly) wants to reside together in Canada. Hence the test of at least being refused for a TRV to come to Canada still applies. (This is, of course, not entirely without consequences for the couple, because in that scenario the PA can't qualify for work permit for quite some time, well more than a year - not entirely fair from one perspective but it is what it is)

 

[Xilikon]

I get the subtleties of the whole conjugal case. Thanks for the detailed explanations and I hope it also helps the OP.

 

[Depa]

So from my understanding I should apply for Trv first righ?

 

[Naturgrl]

So from my understanding I should apply for Trv first righ?

Yes.

 

[sunluvr]

2) There is speculation here from time to time that it may be 'easier' to reside abroad and that therefore the Canadian spouse (whether PR or citizen) should move abroad and live with the other spouse instead. BUT: I can't find / haven't seen a single case where the response from IRCC has been to refuse a case because the sponsor could have/should have moved abroad to establish common law. (In fact recall a case where there was no legal barrier to marriage at all but the sponsor refused to get married because of opposition to marriage- did not get refused. I dont' recommend, but just as an example).

IRCC seems to treat this as I think the program was intended by government - that Canada mostly expects that the reason spousal sponsorship (and conjugal) exists is to allow Canadians (PRs or citizens) to reside in Canada with their spouses, and the govt should not be in business of making them reside abroad to be able to return. Not to mention the practical aspects, like ability to work, etc.

Now that said: my opinion is that it is always superior to get married if legally possible, or to use existing common law status (eg having already resided together before). But if neither of those is possible, and the foreign partner cannot get a visa to Canada, then that is EXACTLY what the conjugal program was intended for. (Of course if the couple want to reside together abroad for a year and then apply, no argument from me - it just may not be practical or possible for many).

For same sex couples (neither married), it really is often/usually/maybe always better to travel to some jurisdiction where they can get married, and this is increasingly widespread worldwide. But for PH citizens who can't get divorced, there may not be other practical alternatives.

Last year, my same-sex partner's application was denied, and one of the reasons given for denial was clearly the claim that I as the sponsor was allegedly able to cohabitate in Vietnam with him for 12 months in order to become common-law, and I chose not to. At the time, I had been in Vietnam together with him, and was planning to return to Canada for 6 months to take care of my affairs there. At the same time, covid-19 was just starting to erupt, and travel became very difficult and I scrambled for another month trying to find a flight back home and was eventually successful. The Vietnamese government stopped issuing visas and extensions, and began allowing foreigners to overstay their visas, but only on a month-by-month basis, and there was no indication how long that would continue and it was only in the last few days of each month that the gov't would announce that overstays could continue into the next month. This process did continue at least for another year.

From the GCMS notes:
I am not satisfied that the PA meets the definition of family member. The conjugal partner class is intended for extraordinary circumstances
where neither common-law partner status nor marriage is possible. The PA and SPR have demonstrated that they have cohabited for a significant period of time (Nov 2019 to June 2020), when the SPR made the choice to return to Canada. While I acknowledge that that this choice was made during the COVID-19 pandemic which presented a number of challenges, the PA and SPR have not provided sufficient information to satisfy me that continuing to cohabitate (and thus meet the definition of common-law partners) in Vietnam was not possible.

Granted, there were other reasons given for the denial which were certainly more valid - i.e. although a separation agreement was in place regarding my first marriage, a divorce had never been finalized, and also my partner had never applied for a tourist visa to visit Canada - so there was no point in attempting any appeal based on the above point. However it still remains a big concern, as once we clear up the other reasons and submit a new application, I worry that Immigration will use the same argument above as reason for denial. The tourist visa situation now in Vietnam is that only a 30-day visas can be obtained, then a foreigner must apply for another visa, leave the country and enter VN again using the new visa, month after month. There is no indication from the government how many times this can be done consecutively. So far, people have been able to do it for 10 months now, but that situation could change at any time.

 

[armoured]

Last year, my same-sex partner's application was denied, and one of the reasons given for denial was clearly the claim that I as the sponsor was allegedly able to cohabitate in Vietnam with him for 12 months in order to become common-law, and I chose not to. At the time, I had been in Vietnam together with him, and was planning to return to Canada for 6 months to take care of my affairs there.

If you refer to my post, I attempted to be quite careful and specific about the language I used, specifically saying:

IRCC seems to treat this as I think the program was intended by government - that Canada mostly expects that the reason spousal sponsorship (and conjugal) exists is to allow Canadians (PRs or citizens) to reside in Canada with their spouses, and the govt should not be in business of making them reside abroad to be able to return. Not to mention the practical aspects, like ability to work, etc.

So leaving aside that I think I tried to caveat that my description was by no means a complete one, and based on my impressions, the part I'm going to draw attention to is from your post above: "I had been in Vietnam together with him, and was planning to return to Canada for 6 months to take care of my affairs there."

So yes, you were residing together, it seems you were working together, and (if I understand correctly) your 'return to Canada' was intended to be temporary.

Or put differently, I should have said that they likely do approach each case on a case-by-case basis, and some will be found to be situations where (IRCC believes) the couple could have become common law and chose not to. And, seemingly, there was no barrier to you residing there and working etc because ... you had been doing so for quite some time (it seems, I'm reading between the lines a bit).

Yep, conjugal not meant for those cases, I assume is their reasoning.

PA and SPR have not provided sufficient information to satisfy me that continuing to cohabitate (and thus meet the definition of common-law partners) in Vietnam was not possible.

I'm bolding this part not to pick apart the case excessively, but because the "not possible" here is (in my opinion) vague. Because we all know that 'not possible' could be interpreted as actually impossible (from contrary to the laws of physics, a logical impossibility, or outright illegal) to 'not feasible or practical in normal circumstances.'

Reasonable people can disagree on what it means in context. I daresay a lawyer - if engaged - would argue strenuously on behalf of their client that 'possible' in the sense of 'not extraordinarily inconvenient, onerous, burdensome' is the reasonable standard meant in this context.

Some here seem to me to be arguing that a far higher bar of 'possible' is being imposed by govt - that eg a Canadian resident and PR should or must actually give up employment, risk their PR status, take on extremely high financial burdens etc - in order to qualify as conjugal. I doubt that the bar would be put so high, but it is - literally - just my opinion.

Unfortunately in your case, how it would come out even by this lower standard is ambiguous - for example, if you're a citizen, you would not be risking your status in Canada to live with your partner abroad - just as one example.

In other words, I don't think your case demonstrates that the government will require most conjugal-partner sponsors to reside abroad and establish common law - but rather only that they might decide that in some cases, it is 'possible' (feasible etc).

Granted, there were other reasons given for the denial which were certainly more valid - i.e. although a separation agreement was in place regarding my first marriage, a divorce had never been finalized, and also my partner had never applied for a tourist visa to visit Canada - so there was no point in attempting any appeal based on the above point.

Even more so given that there are other factors that on their own may or may not be sufficient to refuse, or at least contributing factors. They at least seem to have used these as contributing factors, including possibly in rejecting the idea that covid matters should be taken into consideration.

However it still remains a big concern, as once we clear up the other reasons and submit a new application, I worry that Immigration will use the same argument above as reason for denial. The tourist visa situation now in Vietnam is that only a 30-day visas can be obtained, then a foreigner must apply for another visa, leave the country and enter VN again using the new visa, month after month. There is no indication from the government how many times this can be done consecutively. So far, people have been able to do it for 10 months now, but that situation could change at any time.

All of my above, unfortunately, does not answer the question you have about how to proceed given what was done before. I would suggest that having TRV refusals in hand, dealing with the separation issue and outlining in detail why it would not be practical or feasible for you to give up your life/work/etc in Canada to establish common law - taken together, these might be enough. But I don't know.

Yours is a case where I would recommend speaking to a lawyer (at least for a consult), and considering whether getting married is now possible (somewhere).

And a remidner of why many here suggest - often - that conjugal really should be seen as 'extraordinary' and if couples can get married or establish common law, that is more certain and less risky than applying conjugal.

[And if it wasn't clear - my sympathies, it's unfortunate that you and your partner have to go through this. Woudl that it were not so.]

 

[djerappah]

Conjugal applicant here. I am from Indonesia, my girlfriend is Canadian PR (we're both Indonesian). Applied TRV in 2021 and got rejected. Then applied for PR in Feb 2022 (my timeline in my signature). I think as long as you follow the guidelines (what document to send, make sure to not miss any signature), your application is probably will be approved. We were in LDR the majority of our relationship. Please make sure to put your guys picture together, chat conversation, and testimony from your friends and family. I am not yet out to my family, so the testimony is mostly on my girlfriend side. Good luck to you, hopefully your application will be approved