Act sooner than later for out-of-status partners – Metro US

Act sooner than later for out-of-status partners

I’m a Canadian and engaged to a Jamaican who I met three years ago.

His work permit expired one year ago. His application to extend his status as a visitor was denied in April. He was then told that he can apply for a pre-removal risk assessment and is still in Canada waiting on a response. We are currently filling out the papers to apply for permanent residency under the common-law partner category. Since he has no status, can he stay in Canada while we are waiting for the process to go through?

We were told that if his pre-removal risk assessment doesn’t go through, he will be sent home even though we are applying for permanent residency. I’m being told different things all the time. It’s very confusing and stressful. I’m worried that if he is sent home it will take years for him to come back. I am currently three months pregnant.

In February, 2005 former immigration minister Joe Volpe announced that Canadians would now, in certain cases, be able to sponsor their out-of-status spouses and common-law partners from within Canada. In September, 2005 an Operational Bulletin was issued clarifying how this policy would be applied. This bulletin included an “Administrative Deferral Policy” which set out certain criteria which would determine who would be allowed to stay here while their sponsorship was being processed and who could be removed before the process was completed.

Unfortunately, it seems that your common law partner falls into the second group. Here’s why.

Before removing someone from Canada, immigration authorities are required to see if the person faces some risk in returning to their country. Accordingly, the foreign national is called in for a “pre-removal interview” where they are served with a notice informing them of their right to make a “pre-removal risk assessment” (PRRA) application. If they make such an application and are found to be at risk, they will be allowed to remain here and to apply for permanent resident’s status. If such an application is not made, or is made but refused, the person is removed.

Subject to certain exceptions, if the sponsorship application is filed “inland” before the foreigner is called in for a pre-removal interview, by phone, letter or otherwise, the applicant will get to stay here until their sponsorship is finalized. If they submit their sponsorship application after the call-in notice is issued, they can be removed from Canada even though their sponsorship application is still pending.

Since your partner has already been served with a PRRA notice and since you have not yet submitted your sponsorship paperwork, he will not benefit from an administrative deferral and can be sent home even if you send it in now.

I do not recommend you do so since PRRA applications are usually decided in about four-six months while sponsorships take at least eight months, if not longer, just to reach “stage one” i.e. the stage where the relationship is assessed as genuine or not. Accordingly, it is far more likely that your partner’s PRRA application will be decided long before your sponsorship application can be assessed. More than 90 per cent of PRRAs are refused. If he is removed, you will have to discontinue your inland sponsorship application and restart the process in Kingston. However, in the very, very unlikely event that the inland sponsorship application is approved in principle before the PRRA is decided, then your partner will benefit from a regulatory stay of removal until he is finally granted permanent residence status.

If a removal is scheduled, your partner can apply to the Federal Court for a judicial stay of execution of removal but he will have to demonstrate that, amongst other things, the removal will cause “irreparable harm.” Your pregnancy, alone, is unlikely to be sufficient to prove that.

My advice to you is to immediately prepare an overseas sponsorship application and file it in Kingston since the most likely scenario is that the PRRA will be decided, and probably refused, soon and, in any event, before you will have the time to submit and process an inland sponsorship to a successful stage-one decision. The overseas sponsorship will likely take 16 months or longer.

The Administrative Deferral Policy is meant to be generous but only to a point. There are others who do not benefit from a deferral of removal regardless of when they file their sponsorship application, i.e. those who:

  • are inadmissible on certain security, criminal, and human rights related grounds;
  • are or were facing charges in Canada;
  • have already benefited from a previous administrative deferral;
  • have a warrant outstanding for removal;
  • have hindered or delayed removal;
  • have been removed from Canada but who returned here without permission; and
  • entered Canada with fraudulent or improperly obtained travel documents.

There are many technical rules that can trip up the sponsorship of someone who is here without status. I recommend great caution in such cases.

Guidy Mamann, J.D. practices law in Toronto at Mamann, Sandaluk and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com