Women should not have to worry about immigration laws when they are about to give birth. Unfortunately, one young woman is finding herself in a real immigration jam following her recent delivery.
This permanent resident of Canada returned to her native country to visit her new husband, who she was in the midst of sponsoring to Canada. While there, she became pregnant. She planned to have the baby here, but the child was born prematurely overseas.
The Canadian visa post notified her husband that, in order to continue processing his application, he needed to provide proof his sponsor was residing and working in Canada.
In order to comply with this request, the wife decided to immediately return to Canada with her child, which she was still nursing.
Although a child born abroad to a Canadian citizen automatically enjoys their parents’ Canadian status, a child of a permanent resident of Canada does not. Instead, they are considered foreign nationals until they apply for and obtain permanent residency status.
Accordingly, the mother applied for the requisite visitors visa for the child, but it was denied since the child’s intention in entering Canada was found not to be “temporary.”
The absurdity of extending such a requirement to a newborn seems to have been lost on the visa post, which wrote to the child saying, “You have not satisfied me that you meet the requirements of Regulation 179: That you would leave Canada at the end of the temporary period if you were authorized to stay. In reaching this decision I considered your ties to your country of residence/citizenship balanced against factors which might motivate you to stay in Canada.”
The “dual intent” provisions of IRPA recognize a foreigner can simultaneously have a temporary and permanent intent in coming to Canada, but only “if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.”
Furthermore, the departments’ policy manual specifically states “TRVs (temporary resident visas) should not be issued to applicants as a means of facilitating entry into Canada for the purpose of submitting an application for permanent residence in Canada.”
Unlike Canadian citizens, permanent residents who are considered to be “residing abroad” are not eligible to sponsor their spouses, even if they plan to return to Canada after the completion of the sponsorship.
Unless the visa post reconsiders its position, this young mom will have to choose between returning to Canada without her child so the visa post will continue to process her husband’s application, or remaining abroad with her child and seeing her husband’s application stall and her residency in Canada placed at risk.
Guidy Mamann practises law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at
metro@migrationlaw.com
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