A foreign national is not considered a spouse or a common-law partner if the marriage or relationship is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act. In addition, a relationship between two persons that has been dissolved for the primary purpose of acquiring status or privilege under the Act and then resumed is an excluded relationship and the foreign national shall not be considered a spouse or a common-law partner under the Regulations.
The Regulations prescribe relationships that exclude an applicant from membership in the family class.
Applicants in the Following Situations are not Members of the Family Class:
- The spouse or common-law partner is under the age of 16,
- Bigamy or polygamy – either the sponsor or the spouse was married to someone else at the time of the marriage,
- The sponsor has an existing undertaking to support a previous spouse or common-law partner,
- The sponsor and the applicant have been separated for at least a year, and either one is in a common-law relationship with another person,
- When the sponsor applied for permanent residence, the applicant was a non-accompanying family member of the sponsor and was not examined.
Must be Examined
Under IRPA, the applicant and the applicant's family members, whether seeking permanent residence or not, must meet the requirements of the legislation. There are no exceptions to the requirement that family members must be declared.
The applicant should be advised that they will lose this right should their family members not be examined.
If family members are genuinely unavailable or unwilling to be examined, the consequences of not having them examined will be clearly explained and noted on the record.
Officers understand and are open to the possibility that a client may not be able to make a family member available for examination. If an applicant has done everything in their power to have their family member examined but has failed to do so, and the officer is satisfied that the applicant is aware of the consequences of this (i.e., no future sponsorship possible), then a refusal of their application for non-compliance would not be appropriate.
Officers will decide on a case-by-case basis, using common sense and good judgment, whether to proceed with an application even if all family members have not been examined. Some scenarios where this may likely occur include where an ex-spouse refuses to allow a child to be examined or an overage dependent refuses to be examined. Proceeding in this way should be a last resort and only after the officer is convinced that the applicant cannot make the family member available for examination.
For further information with respect to your Canadian immigration, we invite you to contact our experienced immigration representatives.