Procedural Fairness: Conjugal partners

[Kaila]

Hello! My boyfriend and I applied for family class sponsorship under the conjugal partner category around 7 months ago, and we have since completed every task asked of us including his medical exam. We have now received a 'procedural fairness' letter from the immigration officer stating the following:

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We have been in a long distance relationship for five and a half years now, and currently I am a full time nursing student half-way through my three year program. We have been unable to live together for 12 months (as common law) for financial reasons. The only way my boyfriend could have stayed in Canada with me for that long was via a visitors visa (at least that is my understanding) - and with this, he would not have been able to work. Due to the fact that I am a full time student, I am unable to financially support us both since he would be unable to work here without a permit. The reason we have not yet married one another is that we wanted to marry while we were in the same country living together. We did not want to be on opposite sides of the US/Canada border.

In this letter, it states that if we "can get married or can live together and establish a common-law relationship, this is what they are expected to have done before they submit sponsorship and immigration applications". This is where our concern arises, as we technically could have gotten married, however our values are as such that we did not want to marry just for citizenship.

My questions here are: (1) are we screwed here? It just doesn't make sense why this is being questioned seven months into our application process. What would be the best thing for us to reply with? (2) If this application is declined the only other option I see is for us to get married. If we do get married is it going to be held against us that we are doing it 'just so he can get into the country'? And at this time could our application be transferred to a spousal application? Or would we need to start from scratch and lose the last 7-8 months of our time?

Thanks for any help, it's greatly appreciated. I know I asked a lot of questions but this is a somewhat challenging situation for us.

-Kaila and Seth

 

[scylla]

If he's American, then you really have no case to qualify as a conjugal couple. Conjugal is for situations where it is impossible (i.e. there are real immigration barriers) to becoming common law or getting married. As a US/Canadian couple - you face no such barriers. What you've listed are life choices - they are not barriers. You have many options / routes for getting married or living together for a year to become common law.

The conjugal application has no chance of succeeding. You can try getting married and then submitting this as a response to CIC to see if they will "convert" your application. Sometimes this works - and sometimes it doesn't. If it doesn't work, you'll need to apply from scratch once you are married.

It's a shame you didn't find this forum earlier. We would have told you there was no point going the conjugal route - unfortunately you simply don't qualify.

Good luck.

 

[Kaila]

If he's American, then you really have no case to qualify as a conjugal couple. Conjugal is for situations where it is impossible (i.e. there are real immigration barriers) to becoming common law or getting married. As a US/Canadian couple - you face no such barriers. What you've listed are life choices - they are not barriers. You have many options / routes for getting married or living together for a year to become common law.

The conjugal application has no chance of succeeding. You can try getting married and then submitting this as a response to CIC to see if they will "convert" your application. Sometimes this works - and sometimes it doesn't. If it doesn't work, you'll need to apply from scratch once you are married.

It's a shame you didn't find this forum earlier. We would have told you there was no point going the conjugal route - unfortunately you simply don't qualify.

Good luck.

Thank you for replying, I really appreciate your help. I think we will try to get a case transfer, which means we will likely sign a marriage certificate within the next 30 days and send that to them. I am wondering however if they will say that we are only getting married so he can come to Canada?

 

[scylla]

Thank you for replying, I really appreciate your help. I think we will try to get a case transfer, which means we will likely sign a marriage certificate within the next 30 days and send that to them. I am wondering however if they will say that we are only getting married so he can come to Canada?

Marriage is a reasonable step given how long you've been dating. You can say that you realize you don't meet the conjugal requirements and were eventually planning on getting married anyway - and have now decided to do it sooner. Make sure there are a few people there (friends, family) when you get married and sign the marriage certificate - and I would recommend having at least a small celebration (e.g. dinner at a restaurant afterwards) to celebrate with your guests. Submit photos and a guest list along with the marriage certificate. Note that depending on where you get married (specifically Ontario), it can take a while for the marriage certificate to become available.

 

[Kaila]

Marriage is a reasonable step given how long you've been dating. You can say that you realize you don't meet the conjugal requirements and were eventually planning on getting married anyway - and have now decided to do it sooner. Make sure there are a few people there (friends, family) when you get married and sign the marriage certificate - and I would recommend having at least a small celebration (e.g. dinner at a restaurant afterwards) to celebrate with your guests. Submit photos and a guest list along with the marriage certificate. Note that depending on where you get married (specifically Ontario), it can take a while for the marriage certificate to become available.

I am wondering if it would be possible for my boyfriend to still work in the states, however come over the boarder to live with me (as I live on the Canada/US border). Perhaps this way we could live together for a year, still have him working, and then apply for a common law sponsorship later down the line. Do you think this could work or are there laws that would not allow this?

 

[scylla]

I am wondering if it would be possible for my boyfriend to still work in the states, however come over the boarder to live with me (as I live on the Canada/US border). Perhaps this way we could live together for a year, still have him working, and then apply for a common law sponsorship later down the line. Do you think this could work or are there laws that would not allow this?

Do you mean crossing the border daily to work? If yes - it's not going to work long term. Sooner or later he'll be stopped at the border and will be told he cannot be crossing over daily. This may mean he's allowed in with a warning - or he may be denied entry. It's one thing to enter Canada and then stay here for a year by applying to extend your status. Frequent border crossings are a completely different matter since you're re-assessed as a visitor each time you enter - and CBSA will say that daily crossings aren't the behaviour of a normal visitor and represent an abuse of the visitor privilege.

 

[Downtown_YYZ Guy]

nowhere in the letter it talked about misrepresentation - if the OP had not satisfied the requirement could she be refused a visa citing misrepresentation and banned for 5 years??

 

[armoured]

nowhere in the letter it talked about misrepresentation - if the OP had not satisfied the requirement could she be refused a visa citing misrepresentation and banned for 5 years??

In simple terms, it's my understanding that they do not pursue misrepresentation bans for (among other things) situations where the applicant has been (essentially) truthful but there is a disagreement about the meaning/correspondence with the requirements of the immigration act.

Or in this case: the couple applied for conjugal which required a situation 'beyond their control' but the IRCC disagreed that there was something beyond their control. There was - as far as I can see - no substantive misrepresentation of facts, just an error in understanding of the requirements of the conjugal program.

Similarly, not meeting the test of common law cohabitation is ... not meeting the requirements of the law - it's not misrepresentation without eg making false statements. (As far as I can tell IRCC usually doesn't pursue misrep when it's an applicant who believes they 'resided' with someone else when there's a gap in docs or there's a different understanding of what 'residing' means - like eg one attending school for several months in a different province).

I don't want to go too far down the path of analogies / hypotheticals, but here's one: someone gets 'married' in some country in a manner that's not fully compliant with local legal requirements and presents some document showing such - for example, a religious marriage in countries that require and only recognize a civil marriage (much of Europe) and show a certificate (but not the official national marriage certificate issued by the civil registry) signed by the religious officiant. IRCC won't recognize that marriage as legal, but as long as the person doesn't outright lie (a bit absurd but eg forge a national civil marriage doc), that's a mistake, not a misrepresentation.*

This is actually something that has happened. Another not uncommon error is to send the document the officiant gives in Ontario (and I think other provinces) after the wedding ceremony instead of waiting for the marriage certificate - IRCC will ask for the marriage certificate, and refuse the application if it can't be produced, but it's basically a misunderstanding, not misrepresentation.

*This is not advice and I can't say with certainty that IRCC would not decide it's misrepresentation in some cases - it would depend on the facts.

 

[Downtown_YYZ Guy]

Thanks for your detailed response , the reason i ask is I am trying to differentiate between PFL and ADR. My spouse received a letter in her email (subject is communication from IRCC) in that it refers to section 11 and Section 16(1) and asks for her current address, Medicals and biometrics. She applied PR under family class and travelled out of canada post application due to my father's (her father in law) death . In the letter few sections are highlighted like current address and updating address whenever we change.
I as her sponsor too travelled with her obviously due to my dad's demise but did not inform IRCC. So tech can it be said since i did not update IRCC about change in address, I am hiding material facts and suspected of misrepresentation .
Section 40 (1) regarding misrepresentation is not mentioned but due to section 16(1) we are thinking if its a warning letter for misrep or just a request for additional docs and the worst case would be refusal without ban

P.S : Just FYI we are still paying rent utilities etc in Canada just that I sponsored her as a PR but we all will be out of Canada for 5-6 months due to the death

 

[armoured]

Thanks for your detailed response , the reason i ask is I am trying to differentiate between PFL and ADR. My spouse received a letter in her email (subject is communication from IRCC) in that it refers to section 11 and Section 16(1) and asks for her current address, Medicals and biometrics. She applied PR under family class and travelled out of canada post application due to my father's (her father in law) death . In the letter few sections are highlighted like current address and updating address whenever we change.
I as her sponsor too travelled with her obviously due to my dad's demise but did not inform IRCC. So tech can it be said since i did not update IRCC about change in address, I am hiding material facts and suspected of misrepresentation .
Section 40 (1) regarding misrepresentation is not mentioned but due to section 16(1) we are thinking if its a warning letter for misrep or just a request for additional docs and the worst case would be refusal without ban

If you have a specific question, it would be far easier to just start with the specifics and not ask what is basically an unrelated question - as your case has nothing whatsoever to do with the circumstances of the case discussed in this thread.

your reason-by-analogy doesn't even make any sense, 'difference between PFL and ADR' is not misrepresentation so still a difference between those two and misrepresentation.

Like seriously - don't waste everyone's time - you have a specific question, ask it.

 

[armoured]

My spouse received a letter in her email (subject is communication from IRCC) in that it refers to section 11 and Section 16(1) and asks for her current address, Medicals and biometrics. She applied PR under family class and travelled out of canada post application due to my father's (her father in law) death . In the letter few sections are highlighted like current address and updating address whenever we change.
I as her sponsor too travelled with her obviously due to my dad's demise but did not inform IRCC. So tech can it be said since i did not update IRCC about change in address, I am hiding material facts and suspected of misrepresentation .
Section 40 (1) regarding misrepresentation is not mentioned but due to section 16(1) we are thinking if its a warning letter for misrep or just a request for additional docs and the worst case would be refusal without ban

Now that I've expressed separately my annoyance at you wasting my time with your approach, back to substance.

It would help if you gave more detailed information (like how long you / she were out of Canada). It sounds like it was lengthy and she is still abroad. That's the important substance.

You can also post here the text - cleansed of specifics like name UCI etc - and help others with the relevant information.

In my view, 16(1) is a reference to potential misrepresentation (with all possible consequences), but I don't read that as a necessary consequence of your situation. (Omission of relevant material facts is potentially misrepresentation). I believe how they will proceed will depend on the facts and circumstances - like whether you continue to omit relevant facts (like you did above, here - dig, dig).

It's possible that the 16(1) mention is more a reminder here that you must respond to questions that IRCC puts to you (truthfully) of course - or in other words that the 16(1) reference is prospective, and just warning you that if you do not respond adequately, that will lead to a (correct) refusal. That is, it may figure here only as a standard part of a procedural fairness letter (non-response is a reason for refusal), not as a specific warning about misrepresentation - I don't know enough about the standard forms of PFLs to answer with certainty.

Can't help but suggest that since this is a possible consequence that's been referred to directly, and the severity of those consequences, you should at minimum consider engaging a lawyer to help in crafting or advising you on your response. I'm uncertain as to whether it's necessary but you really should consider, possibly at minimum getting a (paid) initial consultation.

 

[Downtown_YYZ Guy]

Substance is yes, we left Canada after submitting her application under Family Class . She can be abroad or wherever but I as the sponsor need to be in Canada. That being said, at the time of application we were in Canada

**THIS LETTER WILL NOT BE RE-ISSUED**

Date: August 14, 2023
UCI: #########
Application: ########
*F########

**********
*********
Toronto, ON M6K 0V3
Canada

Dear ****************:

This is in reference to your application for permanent residence in Canada.
As per Subsection 11(1) of the Immigration and Refugees Protection Act (“the Act”), in order for you to receive
permanent residence an officer must be satisfied that both you and your applicable family members are not
inadmissible and meet the requirements of the Act.
Furthermore, Subsection 16(1) of the Immigration and Refugee Protection Act states that: “A person who makes an
application must answer truthfully all questions put to them for the purpose of the examination and must produce a
visa and all relevant evidence and documents that the officer reasonably requires.”
After a preliminary review of your application, the following has been deemed required:
Please provide the current residential address for yourself and your dependant family member (if applicable). You
must report any changes to your address, telephone number(s) and email address immediately throughout the
processing of your application.
UCI_ NAME :
> Medical: You are required to complete an Immigration Medical Examination in support of your
application for permanent residence. This requirement cannot be waived. Instructions for your new medicals have
been sent to you separately.
Note: For applications that have a non-accompanying dependant on file, the dependant is still required to undergo
a medical examination. This must be received at this office by: 2023/09/13
> Fingerprints: You are required to submit Biometrics in support of this application. Please follow the
Biometrics instruction letter previously sent to you.
This must be received at this office by: 2023/09/13

Case Processing Centre - Mississauga # 300 – 2 Robert Speck Parkway
Website: www.cic.gc.ca Mississauga, Ontario L4Z 1H8
> Medical: You are required to complete an Immigration Medical Examination in support of your
application for permanent residence. This requirement cannot be waived. Instructions for your new medicals have
been sent to you separately.
Note: For applications that have a non-accompanying dependant on file, the dependant is still required to undergo
a medical examination. This must be received at this office by: 2023/09/13
As a reminder, you are required to have all your family members be examined as part of the process of applying for
permanent residence in Canada, even if they will not come to Canada with the principal applicant. This
examination of your non accompanying dependent is in accordance with the Immigration and Refugee Protection
Regulation section 70(1)(e).
If you are unable to submit the requested document(s), you must notify our office before the due date with an
explanation and proof as to why you are unable to submit the documents.
If we do not receive a response from you within the allotted time, a decision will be made based on the
information on your file, which could result in the refusal of your application.
YOU HAVE 30 DAYS TO RESPOND.

 

[armoured]

Substance is yes, we left Canada after submitting her application under Family Class . She can be abroad or wherever but I as the sponsor need to be in Canada. That being said, at the time of application we were in Canada

How long have you and she been out of Canada? How much longer after applying did you both leave Canada? You are a permanent resident?

 

[Downtown_YYZ Guy]

yes I am a PR, we left 10 days after submitting the application and wont return until Dec. She received the letter, I didnt receive anything yet. We were there in Canada from Nov last year until May .

 

[armoured]

yes I am a PR, we left 10 days after submitting the application and wont return until Dec. She received the letter, I didnt receive anything yet. We were there in Canada from Nov last year until May .

When did you submit the PR application?