Common Law - 1 year living together but have to leave country

[sarah_black]

I'm currently on my second working holiday visa which is due to expire on March 22, 2012. I have applied for a third working holiday visa (my second IEC visa) and I've only just found out that as I haven't been living in the UK for the past 18 months out of the last 3 years, my application for a visa is going to be rejected.

I have filled in most of the paperwork and had a medical done for permanent residency through common law (my boyfriend is a Canadian citizen and we have been living together for over a year and a half).

Can anyone tell me if I can still submit this paperwork as common-law? I will have to leave Canada on March 22 as I will be unable to work and therefore can't live with my boyfriend. I'm unsure about whether to apply as common law or conjugal, or whether I can apply to either of them if I leave the country for potentially a year until 2013 when I can get another visa, or until I receive PR.

Thanks for your help!

 

[CharlieD10]

Yes, you can apply as common-law because you already meet the minimum requirements.

why don't you try to vary your status to visitor instead, so you can stay in Canada.

 

[sarah_black]

I was thinking of this but it would mean I wouldn't be able to work and my boyfriend and I live in an expensive apartment..

Are you sure I can still apply? I'd love to be able to see it somewhere in writing from an official website.

Sarah

 

[AllisonVSC]

CharlieD is correct. This is section 5.36 of the OP 2 Processing manual.

5.36. How can someone in Canada sponsor a common-law partner from outside Canada when
the definition says “is cohabiting”?
According to case law, the definition of common-law partner should be read as “an individual who
is (ordinarily) cohabiting”. After the one year period of cohabitation has been established, the
partners may live apart for periods of time without legally breaking the cohabitation. For example,
a couple may have been separated due to armed conflict, illness of a family member, or for
employment or education-related reasons, and therefore do not cohabit at present (see also 5.44
for information on persecution and penal control). Despite the break in cohabitation, a commonlaw
relationship exists if the couple has cohabited continuously in a conjugal relationship in the
past for at least one year and intend to do so again as soon as possible. There should be
evidence demonstrating that both parties are continuing the relationship, such as visits,
correspondence, and telephone calls.
This situation is similar to a marriage where the parties are temporarily separated or not
cohabiting for a variety of reasons, but still considers themselves to be married and living in a
conjugal relationship with their spouse with the intention of living together as soon as possible.
For common-law relationships (and marriage), the longer the period of separation without any
cohabitation, the more difficult it is to establish that the common-law relationship (or marriage) still
exists.

 

[sarah_black]

'For common-law relationships (and marriage), the longer the period of separation without any
cohabitation, the more difficult it is to establish that the common-law relationship (or marriage) still
exists.'

But if I'm away for a 7/8 months.. surely this is too long? Or will they take into account the reason why we are not living together - because of immigration rules? I would have thought I'd have broken the laws of living together for common law, due to the length of time being apart:

'After the one year period of cohabitation has been established, the
partners may live apart for periods of time without legally breaking the cohabitation.'

 

[sarah_black]

And how do I make this clear on the PR forms?argh stressful!

 

[AllisonVSC]

That would seem pretty easy to document given your first post, sarah_black. You lived together here, your third visa is going to be denied, you must leave for financial reasons if you can't work, and thus you will have to be separated during processing. As long as you can provide evidence of ongoing relationship ( albeit long distance), continued communication, and plans to return to common law living arrangements after processing you should be fine.

Yes, they will take into account that you were unable to stay. If you apply before you have to leave, just be sure to collect that evidence of on-going relationship in case they ask later for more proof.

 

[AllisonVSC]

Also, you might want to consider applying to convert to visitor status and staying as long as you can afford to after March 22 and then leave. That could show intent to continue cohabitating for as long as possible.

 

[Leon]

Apply to change your status to visitor based on plans to apply for sponsorship. You are supposed to apply 30 days before your status expires so do it now. Immediately start working on your sponsorship application so you can apply as soon as possible. You should pick outland through London for the fastest way, also if you end up having to leave.

If your apartment is too expensive, then move. If you leave, will your boyfriend be able to afford paying the rent alone anyway? Then he will still have to move.

If you are refused to change your status to visitor or end up having to go back to the UK for financial reasons, it will not be held against you as you qualified to apply as common law at the time you sent in your application.

 

[sarah_black]

I've read that it may be possible to get implied status for up to 3 months after my visa expires on March 22. Can anyone tell me if this is indeed the case? I know some people are skeptical of this as the IEC is not a normal work visa, but it seems through the research that I've done, that some people have managed to continue to work even though their IEC visa has expired..

If I can change my status to implied status, am I leaving this a bit too late if I apply to do this on Monday 20 /Tuesday 21? If I can only do this by mail, it probably won't get there until Wednesday 22 - is it 30 days from the day it's sent or from when it arrives?

 

[Leon]

I've read that it may be possible to get implied status for up to 3 months after my visa expires on March 22. Can anyone tell me if this is indeed the case? I know some people are skeptical of this as the IEC is not a normal work visa, but it seems through the research that I've done, that some people have managed to continue to work even though their IEC visa has expired..

If I can change my status to implied status, am I leaving this a bit too late if I apply to do this on Monday 20 /Tuesday 21? If I can only do this by mail, it probably won't get there until Wednesday 22 - is it 30 days from the day it's sent or from when it arrives?

It is not possible to apply for implied status. It is something that happens when you have applied for something but haven't heard back. Say if you apply to change your status to visitor but at the time your visa expires, you haven't heard back yet. Then you are under implied status and can stay. Same with a person who is on a work permit and has applied to extend but not heard back yet, they can continue to work until they hear back.

In your case, you are unable to extend your work permit so you can not continue to work after it expires. If you want to change to visitor status, you should apply 30 days before your work visa expires but if you do not, there is a grace period of 90 days after your status expires that you can still apply to restore it. However, it costs more. There is no point in it for you not to apply to change your status to visitor now unless you want to pay more.

As for people who have continued to work after their IEC visa expired, it is possible that they were working illegally.

 

[sarah_black]

I read this -

'you never get the extension but you get around 3 months extra till they get back to you saying no which is generaly enough to time to get your new visa. after that you can then do a restoration of status so you can stay even longer but not work after you have had your implied status denied.'

Hmm. I'm confused.

So the fact that I've applied for a 2nd IEC visa but haven't heard back isn't really relevant at all?

 

[Leon]

So the fact that I've applied for a 2nd IEC visa but haven't heard back isn't really relevant at all?

If you knew that you were eligible for it, then maybe yes but when you know that you are not, applying for it anyway and continuing to work wouldn't look good for you.

 

[tintin79]

I honestly think common-law is a waste of time. Before you leave get married. Go get a license asap, go to city hall and marry him before you go back. Marriage is more guaranteed than any other form. Is there something stopping you from marrying him?

 

[AllisonVSC]

I honestly think common-law is a waste of time. Before you leave get married. Go get a license asap, go to city hall and marry him before you go back. Marriage is more guaranteed than any other form. Is there something stopping you from marrying him?

Do you have data to back up this opinion? While marriage has a legal basis for making a family class application one still prove prove a genuine relationship. Common law, while not having that legal basis, is instead a fact based (by proving cohabitation) and valid way to apply in family class.

The recent data I've seen shows an 83% acceptance rate for "spouses and partners" for the period Oct 2010 to Sept 2011, but no data that separates out spouses from common law applicants or conjugal partners. Please show what makes you think a common law application a "waste of time."