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Immigration Newsweek

By Attorney Henry Moyal


In a previous article, we mentioned that the new federal minister of immigration was likely to change immigration rules. It appears that the Honourable Joe Volpe, Minister of Citizenship and Immigration has not wasted much time in his new position.

Effectively immediately, spouses and common-law partners in a genuine relationship with a Canadian citizen or permanent resident, regardless of status, are able to apply for permanent residence.

Under the previous laws, those who were married to Canadians were only able to apply if they had valid immigration status in Canada. As of today, that has changed and those who are in hiding and married to Canadians or residents can come out and formally apply for permanent residence. This is really good news and a step in the right direction.

Since the law is effective immediately, there are questions and concerns regarding those who have already filed an application. Here are some of the most common cases:

Q: I am a spouse or a common-law partner of a Canadian citizen or permanent resident and I reside with my spouse or partner in Canada. I have lost my legal status. How should I now apply to remain in Canada?

A. As of February 18, 2005, all spouses or common-law partners of Canadian citizens and permanent residents can apply in Canada for permanent resident status.You will not be able to work or study until you receive initial approval.

Q: My application was refused. Can I have my application reconsidered under the new policy?

A. No. Refused applicants will need to reapply and pay a new set of fees to be considered under the new rules.

Q: Does this change in policy affect pending spousal applications overseas?

A. No. The new rules will not affect pending spousal applications overseas. Also, Canada Immigration will not transfer applications from overseas to in-Canada processing centres.

Q: I have requested humanitarian and compassionate consideration and my application is pending. How does this policy change affect me?

A. The new rules will apply to applications that are currently in process. The application of the new policy will, in most cases, be automatic. If additional information is required, you will be contacted by Canada Immigration. A sponsorship application under family class will be required to be submitted to be included under the new laws.

Q: I am the subject of a section 44 report. Am I eligible to apply to remain in Canada under this policy?

A. Yes, people who are subject to section 44 reports are eligible to apply for permanent residence. However, people who are found to be inadmissible for reasons other than lack of status will not have their applications for permanent residence approved.

Attorney Henry Moyal is a certified and licensed Immigration Lawyer in Toronto, Ontario. The above article is general advice only and not intended to act as a legal document. Send questions in confidence to Balita or to Attorney Moyal by fax, mail or email