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Immigration Newsweek

By Attorney Henry Moyal


Q. I am in a serious relationship with my boyfriend in the Philippines. We have lived together for some time but I am not sure if we should marry or should I sponsor him as a conjugal partner. I have heard stories that people were refused under the conjugal partner category and I do not want to make the same mistake. And what if we apply as conjugal partners first, can we then marry if the case is refused?

A. You have touched upon a new area of law that even the courts are having trouble deciphering. By way of background, a Canadian citizen or resident is now eligible to sponsor their ” conjugal partner ” . Before June 2002 this was not possible. Even now, ” conjugal partner ” applications can only be filed outside of Canada. There is no ” in Canada conjugal partner” class.

The definition of conjugal partner is somewhat vague and is described as a union of two people who have not lived together for a year (because that would be common law partner) and are in a ” marriage like” relationship. The parties are interdependent and are exclusive to one another.

As can be seen it is hard to determine who is in such a relationship or not? If a couple are miles apart and have never lived together, can they be conjugal partners? perhaps yes and perhaps no.

The immigration manual describes several factors that should exist within such a relationship but providing evidence of same is not an automatic acceptance of the case. In recent months, several cases have been refused by Canadian embassies abroad and as of last week there were 20 cases in the appeal system in Ontario whereby conjugal partners who were refused subsequently married.

Does subsequent marriage automatically rectify the refusal? We will see, we have been advised by the Immigration & Refugee Board in Toronto that all cases have been removed from the scheduling unit in order for the appeal division to decide on a few test cases. The decisions are expected to be released soon.

Q. I am asking a question on behalf of my brother in the Philippines. I am a US citizen and want to help him immigrate to Canada. Can I sponsor him even though I do not live in Canada? I am able to support him in any way I can.

A. No. You cannot sponsor him on two grounds. Firstly, Canada’s immigration law do not permit sisters to ” sponsor” a brother. Secondly, ” sponsors” must be residing in Canada.

However, it is not the end of the road for your brother. If he a university graduate with experience he may be able to apply for immigration on his own merit. I would of course need to obtain more information on his background to provide an opinion. Forward a resume by email or fax.

Q. I am living in New York for 10 years now. I claimed political asylum in 1998 as I did not want to return home where I had no job. I was denied. I am thinking of going to Niagara Falls Canada-US border and making a refugee claim in Canada. what do you think ?

A. I do not have to think about it. Your case a refugee claim is weak and it appears you are only claiming refugee status in Canada as a way to enter the country. The Philippines is not a refugee producing country and the refugee system is not designed to protect people who simply have nothing to do. And from country do you want to claim against? the US? Philippines? The refugee system is to protect genuinely persecuted people. I do not see how that applies to you.

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