Public Policy Under A25(1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class

Clarifications to the Public Policy under A25 (1) of IRPA to Facilitate Processing in accordance with the Regulations of the Spouse or Common-law Partner in Canada Class

This document has been amended to include points of clarification from the February 18, 2005 version. The substantial policy direction of this document has not changed.

These clarification points can be summarized as follows:

  • In Section 3 “Policy” a definition of “lack of status” has been added which includes examples of what is included and not included in this definition for the purposes of this public policy.
  • In Section 5(A) “Applications”, the wording has been clarified to indicate the cut-off dates for pending applications. Also, additional wording has been included to indicate that pending applications are not subject to an additional fee for consideration under the public policy.
  • In Section 5(B) “Confirmation of Sponsorship Submitted” the wording has been clarified to indicate that the submitted sponsorship is a three year sponsorship.
  • In Section 5(D) and the Appendix “Applicants who Meet Eligibility Requirements for this Public Policy” has been clarified to indicate that these clients are subject to the examination requirements in IP8 and that they will benefit from the fee remission option if applicable.
  • In Section 5(F) “Procedures: Administrative Deferral of Removal”:
    • This section has been clarified to indicate that reference to section 36 applies to both criminality, 36(1) and serious criminality, 36(2).
    • The provision concerning persons who will not benefit from an administrative deferral of removal in cases where charges have been dropped, has been clarified to indicate that this provision refers to charges dropped for reasons related to effecting a removal order.
    • A section has been added which explains how the sixty-day administrative deferral of removal will be calculated by Canada Border Services Agency including a section on how this timeframe will be calculated in transitional cases.
    • A section has been added which explains what is meant by “removal ready” for the purposes of this public policy.
    • A section has been added explaining when the regulatory stay of removal under R233 will be invoked.
  • In Section 6 “Codes”, clarification for how to code accepted and refused cases under this public policy has been included.
  • In the “Appendix A: Case Type List for Application of the Public Policy”:
    • Clarification has been added to indicate that for persons for whom their FC1 or FCC case has been refused for being out of status, they may re-apply for H&C consideration or for consideration in the Spouse or Common-law Partner in Canada Class depending on the circumstances of their case.
    • Clarification wording has been added to indicate that the Minister, via the public policy is waiving the status requirement not the officer.
    • Clarification has been added to indicate which clients will benefit from the refund provision if applicable and which will not.
  • An additional Appendix B has been added with additional procedures for the procedural triaging of pending cases under the public policy.

1. Purpose

The Minister has established a public policy under subsection 25(1) of the Immigration and Refugee Protection Act (IRPA), setting the criteria under which spouses and common-law partners of Canadian citizens and permanent residents in Canada who do not have legal immigration status will be assessed for permanent residence. The objective of this policy is to facilitate family reunification and facilitate processing in cases where spouses and common-law partners are already living together in Canada.

2. Acts and regulations

IRPA subsections 21(1) (relating to status only) and 25(1); IRPA Regulations subsections 124(b) and 72(1)(e)(i) (relating to status only).

3. Policy

CIC is committed to family reunification and facilitating processing in cases of genuine spouses and common-law partners already living together in Canada. CIC is also committed to preventing the hardship resulting from the separation of spouses and common-law partners together in Canada, where possible.

This means that spouses or common-law partners in Canada, regardless of their immigration status, are now able to apply for permanent residence from within Canada in accordance with the same criteria as members of the Spouse or Common-law Partner in Canada class. This facilitative policy applies only to relationships in which undertakings of support have been submitted.

Undertakings are a requirement under this public policy largely because undertakings can be an indication of the applicant’s links with relatives in Canada, which is, in turn, a factor that adds to the degree of hardship involved in the separation of spouses and common-law partners. Undertakings are also a requirement in the Spouse or Common-law Partner in Canada class.

A25 is being used to facilitate the processing of all genuine out-of-status spouses or common-law partners in the Spouse or Common-law Partner in Canada class where an undertaking has been submitted. Pending H&C spousal applications with undertakings will also be processed through this classFootnote 1. The effect of the policy is to exempt applicants from the requirement under R124(b) to be in status and the requirements under A21(1) and R72(1)(e)(i) to not be inadmissible due to a lack of status; however, all other requirements of the class apply and applicants will be processed based on guidelines in IP2 and IP8.

Lack of status

For the purposes of the current public policy only, persons with a “lack of status” refers to those in the following situations:

  • persons who have overstayed a visa, visitor record, work permit or student permit;
  • persons who have worked or studied without being authorized to do so under the Act;
  • persons who have entered Canada without the required visa or other document required under the regulations;
  • persons who have entered Canada without a valid passport or travel document (provided valid documents are acquired by the time CIC seeks to grant permanent residence).

Note: If a valid passport or travel document is not acquired by the applicant by the time of grant of permanent residence, the applicant may be found inadmissible to Canada. Cases considered under this public policy are not eligible for a passport waiver. Persons seeking this waiver must apply through the regular H&C stream.

As a general rule, CIC should accept only validly issued and non-expired passports for the purposes of the grant of permanent residence in R72. This having been said, the use of a passport which has expired during the processing of an application may be appropriate to fulfill the R72 requirements when no identity issues remain.

“Lack of status” does not refer to any other inadmissibilities including:

  • failure to obtain permission to enter Canada after being deported
  • persons who have entered Canada with a fraudulent or improperly obtained passport, travel document or visa and who have used the document for misrepresentation under IRPA.

Note: For greater certainty, persons will be excluded from being granted permanent residence under this public policy if they used a fraudulent or improperly obtained passport, travel document or visa to gain entry to Canada and this document was not surrendered or seized upon arrival and the applicant used these fraudulent or improperly obtained documents to acquire temporary or permanent resident status. Other cases may be refused for misrepresentation if there is clear evidence of misrepresentation under IRPA in accordance with the Department’s guidelines.

  • persons under removal orders or facing enforcement proceedings for reasons other than the above-noted lack of status reasons.

Note: Most persons who are under a removal order or facing enforcement proceedings are eligible for initial consideration under the public policy as they meet the criteria in R124. However, they cannot however receive a positive final decision or acceptance of their case (i.e., grant of permanent residence) as they will be found inadmissible in the step two examination of their case.

Applicants who do not have an undertaking of support submitted by their Canadian citizen or permanent resident spouse or partner do not qualify to be processed under this public policy. These applicants have to be processed under general H&C provisions, as outlined in IP5, and are required to demonstrate unusual and undeserved or disproportionate hardship, if required to leave Canada and apply for processing abroad. They also do not benefit from priority processing or other exemptions available in the Spouse or Common-law Partner in Canada class.

The Government of Canada remains vigilant in identifying fraudulent relationships, and identifying those involved in such relationships for enforcement action.

4. Public interest

The Minister has determined that it is in the public interest to assess all foreign nationals, regardless of status (in spousal or common-law relationships with Canadian citizens or permanent residents), under the provisions of the Spouse or Common-law Partner in Canada class if they meet the following conditions:

  • Have made an application for permanent residence either on H&C grounds or via the Spouse or Common-law Partner in Canada class;
  • Are the subjects of a sponsorship undertaking that is made by their spouse or common-law partner.

Note: This initial step is only an administrative screening step to determine in which stream the applicant should be assessed—H&C or in the Spouse or Common-law Partner in Canada class. At this point, officers are not assessing the validity of the sponsorship or the bona fides of the relationship. These assessments will be done under the general provisions of the Spouse or Common-law Partner in Canada class, as outlined in IP2 and IP8.

Accordingly, the Minister has decided to use his power under A25 to exempt a foreign national from having to meet the requirements in A21(1) and R72(1)(e)(i), only as they relate to inadmissibility for lack of status (and related documents), and R124(b), so as to enable such foreign nationals to become permanent residents if and only if they meet all other requirements of the Spouse or Common-law Partner in Canada class and are not otherwise inadmissible. These requirements consist of:

  • A determination that the sponsor meets eligibility requirements including having submitted a valid sponsorship;
  • A bona fide relationship; and
  • Cohabitation with the sponsor.

Once applicants are determined to meet these criteria, they are eligible to apply for work and study permits.

Applicants who meet these criteria will be processed as members of the Spouse or Common-law Partner in Canada class and will benefit from all applicable exemptions. This includes an exemption from the requirement not to be inadmissible on health grounds when there is a risk that their health condition will cause excessive demand (EDE) on health or social services (A38(1)(c)/R1(1)) and the sponsor’s requirement to meet minimum necessary income (also known as LICO). These applicants also have the ability to include family members here and abroad on their applications (concurrent processing).

However, other inadmissibility grounds of IRPA continue to apply. Criminal and security prohibitions are not waived under this public policy, nor is the public health risk assessment.

5. Procedures

A. Applications

i. Previously refused applications

Because the legal principle of functus officio does not permit the Department, in the present context, to revisit finalized applications, this change is not retroactive; therefore, foreign nationals previously refused under H&C or in the Spouse or Common-law Partner in Canada class will have to reapply in the Spouse or Common-law Partner in Canada class. These applicants will be required to pay the appropriate processing fee.

ii. H&C assessments not completed prior to removal

Cases involving spouses or common-law partners in which the H&C assessment was not completed prior to removal (i.e. the foreign national partner is now overseas awaiting a final H&C decision), will also be facilitated in a manner consistent with this policy intent. In these situations, as long as a valid undertaking has been submitted (voluntarily or in response to a CIC request), the case will fall under this public policy: the existence of a marriage or common-law relationship will be a determinative hardship factor.

In cases where undertakings have not been submitted, officers should contact the applicant, inform of the existence of this public policy, and provide an opportunity for the applicant to have a sponsorship submitted by the sponsor.

For cases accepted under this public policy, officers should follow procedures in IP5 – 14.5 – Process for positive H&C decision after removal.

iii. Pending applications (received prior to February 18, 2005)

This public policy applies to all pending spousal applications that meet the criteria, both H&C and applications in the Spouse or Common-law Partner in Canada class. This includes applications for which the assessment has not yet started and all applications where the refusal letter has not yet been sent out, whether at CPC-Vegreville or at any of the regional offices. No additional fees are required to assess existing cases under the provisions of the public policy.

H&C

In order for an application to be processed under this public policy, the person must have made an application pursuant to subsection 25(1) of IRPA and have submitted an undertaking. Pursuant to section 66 of the Regulations, the application must be made in writing and accompanied by an application to remain in Canada as a permanent resident. Applicants in Canada will have submitted their application using the form IMM 5001.

Spouse or Common-law Partner in Canada class

Pending applications made under the provisions of the Spouse or Common-law Partner in Canada class in which the applicant does not have valid immigration status will also be eligible for this public policy. In these cases, provided the applicant meets all other provisions of the class, requirements of status in A21(1), R124(b), and R72(1)(e)(i) will be waived through the public policy by A25(1). No additional H&C application is required.

iv. New applications (received on or after February 18, 2005)

New spousal applicants, whether with valid immigration status or without status, are instructed to apply using the Spouse or Common-law Partner in Canada class application kit if they meet the criteria for this public policy and wish to be considered under this policy. In cases where spousal applicants do not meet the criteria, they will be instructed to apply in the regular H&C stream.

In cases where spouses mistakenly apply using the H&C kit, provisions of this public policy will apply as long as applicants meet the criteria (including a valid sponsorship) and confirm that they wish to have their applications assessed under the provisions of the Spouse or Common-law Partner in Canada class. Please see the section entitled Appendix A: Case Type List for Application of the Public Policy for a summary of case types and associated guidelines.

B. Confirmation of sponsorship submitted

To determine if an H&C spousal applicant should be considered under this policy, it must first be determined if the sponsor has submitted a (3-year) sponsorship on behalf of the applicant. Both HC1 and HC2 cases are eligible for consideration.

In HC1 spousal cases, officers should contact the applicant and inform him/her of the public policy and provide the applicant with a reasonable time to submit a sponsorship, if the applicant wishes. If a sponsorship is still not submitted:

Scenario 1: Applicant chose not to submit a sponsorship

  • Action: Assess these applicants under general H&C provisions in IP5 (separation from a partner not automatic hardship).

Scenario 2: Applicant wanted to submit a sponsorship, but sponsor was ineligible

  • Action: Assess these applicants under general H&C provisions in IP5 (separation from a partner not automatic hardship). Please note that, because of the desire to sponsor, and depending on the circumstances of the case, these applicants may warrant favourable consideration.

If it is determined that a sponsorship has been submitted, the officer will:

  • Assess the applicant following normal procedures in IP2 and IP8 on the Spouse or Common-law Partner in Canada class; and
  • If it is determined that the applicant meets the other requirements of the Spouse or Common-law Partner in Canada class (a determination that the sponsor meets eligibility requirements, a bona fide relationship, and cohabitation with the sponsor), the requirement for the applicant to have valid immigration status (R124(b)) and the requirement not to be inadmissible for lack of status (A21(1) and R(72)(1)(e)(i)) is waived by A25 under this public policy.
  • Other inadmissibility grounds of IRPA continue to apply. Therefore, once the lack of status has been waived, assess the applicant following general admissibility procedures in IP2 and IP8. For further information, see Section D – Applicants who meet eligibility requirements for this public policy.

Note: TRP holders holding a TRP because of lack of status also qualify for this public policy. This also applies in cases where applicants with pending applications in the Spouse or Common-law Partner in Canada class were given a TRP at a mission abroad or at a port of entry for lack of status.

C. Applicants who do not meet the eligibility requirements for this public policy

i. Pending H&C applications

Applicants who do not meet the eligibility requirements, or where sponsors do not meet the sponsorship eligibility criteria, do not qualify to be processed under this public policy. These applicants will continue to be required to demonstrate unusual and undeserved or disproportionate hardship if required to leave Canada to apply from processing abroad. They will also not benefit from priority processing.

Note: In some cases, officers may begin assessing H&C applicants in the Spouse or Common-law Partner in Canada class, and then determine that the applicant does not meet the requirements of the Spouse or Common-law Partner in Canada class (e.g., sponsor not eligible). In these cases, because the applicant originally applied for H&C consideration, the applicant is still entitled to an H&C decision. Therefore, officers should reassess these cases using general procedures in IP5. Because these applicants then do not meet the requirements of this public policy, they will be required to demonstrate unusual and undeserved or disproportionate hardship to the H&C decision-maker.

Some applicants may wish to have a sponsorship submitted to support their application but their sponsor is not eligible (e.g., on social assistance). In some cases, depending on the circumstances of the case and the reasons for sponsorship ineligibility, while they will not qualify under this public policy, the indication of support by a spouse or common-law partner may be considered a positive H&C factor.

ii. New H&C applications

In order to benefit from this public policy, applicants should have applied in the Spouse or Common-law Partner in Canada class. Therefore, officers should contact new applicants who apply under H&C to determine if they wish to be considered under this public policy.

If the applicant does not wish to be considered under this public policy, the application should be assessed using the general provisions of IP5 (separation from a partner not automatic hardship).

If the applicant wishes to have the application assessed under this public policy, the officer should assess the application under the provisions of the Spouse or Common-law Partner in Canada class. If it is determined that the applicant meets all requirements of the class, the requirement for the applicant to have valid immigration status (R124(b)) and the requirement not to be inadmissible for lack of status (A21(1) and R(72)(1)(e)(i)) are waived by A25 under this public policy.

However, if, after the A25 waiver, these applicants are refused for not meeting the requirements of the Spouse or Common-law Partner in Canada class, they are not entitled to a reassessment on H&C grounds, but may reapply for H&C consideration.

iii. New and Pending Spouse or Common-law Partner in Canada class applications

For applicants in status, applications should be assessed using normal procedures in IP2 and IP8. For applicants out of status, if the only issue preventing acceptance of the case is the applicant’s lack of status:

  • Assess using normal procedures in IP2 and IP8.
  • If the applicant meets all other requirements of the Spouse or Common-law Partner in Canada class, their requirements for status and the inadmissibility related to the lack of status is waived by this public policy under A25.
  • If these applicants are refused for not meeting the requirements of the Spouse or Common-law Partner in Canada class, they are not entitled to a reassessment on H&C grounds, but may reapply for H&C consideration.

For a detailed listing of case types and associated guidelines, please see the table entitled Appendix A: Case Type List for Application of the Public Policy at the end of this document.

iv. Fraudulent relationships

Applicants whom CIC determines entered into a fraudulent relationship (R4) or dissolved a relationship (R4.1) for the purpose of gaining immigration status in Canada will be refused. These cases will be flagged and sent to CBSA on a priority basis for enforcement action.

D. Applicants who meet eligibility requirements for this public policy

Once the officer has confirmed the existence of an application supported by a sponsorship, the officer will assess the application to remain in Canada as a permanent resident according to the Regulations of the Spouse or Common-law Partner in Canada class. The officer will ensure the applicant has an eligible sponsor and valid sponsorship, and then determine whether the applicant and any family members are inadmissible.

Because these applicants are being assessed according to the Regulations of the Spouse or Common-law Partner in Canada class, inadmissibility based on excessive demand on health and social services related to health (A38(1)(c)/R1(1)) for the applicant and family members who qualify under this public policy do not apply. The minimum necessary income (LICO) exemption also applies. Lastly, these applicants will benefit from the fee remission option available to this class if applicable. See Appendix A for details.

These applicants will also benefit from priority processing and the ability to concurrently process family members overseas subject to examination requirements as outlined in IP8 (see section 5.33).

Other inadmissibility grounds of IRPA continue to apply. Criminal and security prohibitions are not waived under this public policy, nor is the public health risk assessment. The applicant must intend to continue to reside in Canada with their spouse or partner and be able and willing to support themselves and any accompanying family members.

If the applicant and any family members are determined not to be otherwise inadmissible, the application to remain in Canada as a permanent resident will be approved. If the applicant and any family members are determined to be inadmissible (other than from a lack of status), the application must be refused.

i. Quebec

Eligible applicants who reside in the province of Quebec are treated according to the Regulations of the Spouse or Common-law Partner in Canada class. They must meet Quebec’s sponsorship requirements.

Applicants who are not successful in the Spouse or Common-law Partner in Canada class but request permanent residence under H&C and reside in the province of Quebec must meet the province’s selection criteria pursuant to 25(2) of IRPA.

In these two cases, the officer should forward the file to MICC. The officer should continue processing the file once the province of Quebec has made a decision within their jurisdiction.

E. Priority processing

CIC has committed to processing all spousal applications, including the ones under this public policy, on a priority basis.

F. Administrative deferral or removal

The Canada Border Services Agency has agreed to grant a temporary administrative deferral of removal to applicants who qualify under this public policy. The deferral will not be granted to applicants who:

  • Are inadmissible for security (A34), human or international rights violations (A35), serious criminality and criminality (A36), or organized criminality (A37);
  • Are excluded by the Refugee Protection Division under Article F of the Geneva Convention;
  • Have charges pending or in those cases where charges have been laid but dropped by the Crown, if these charges were dropped to effect a removal order;
  • Have already benefited from an administrative deferral of removal emanating from an H&C spousal application;
  • Have a warrant outstanding for removal;
  • Have previously hindered or delayed removal; and
  • Have been previously deported from Canada and have not obtained permission to return.

For those applicants who are receiving a pre-removal risk assessment (PRRA), the administrative deferral for processing applicants under this H&C public policy will be in effect for the time required to complete the PRRA (R232). Applicants who have waived a PRRA or who are not entitled to a PRRA will receive an administrative deferral of removal of 60 days.

Applicants who apply under this public policy after they are deemed removal ready by CBSA will not benefit from the administrative deferral of removal except in the limited circumstances outlined below (transitional cases).

When is a client removal ready?

For the purposes of this public policy, by the time an applicant attends a pre-removal interview, he/she is generally removal ready. This means that a client who has been called to a pre-removal interview by any means (letter, call etc.) and who has not already applied as a spousal H&C applicant or a Spouse or Common-law Partner in Canada class applicant, cannot, from the point they are called to the interview forward, benefit from an administrative deferral of removal as outlined in this public policy except in the limited circumstances outlined below (transitional cases).

As is the case now, clients with a pending H and C application who are removed from Canada while their application is being considered will be able to return to Canada if a positive decision is rendered.

Treatment of the deferral of removal for clients who have waived or are not eligible for a PRRA

Types of cases
Case 1

Client attended a pre-removal interview after February 18, 2005 and applied for permanent residence after February 18, 2005 but before attending the pre-removal interview.

Eligible for deferral?

  • Yes if sponsorship application received at CIC by the time client is called for a pre-removal interview.
  • Clients in this group for whom CIC has received an application for permanent residence but not a sponsorship application by the time they are invited to their pre-removal interview are not eligible for a deferral (i.e., HC1 applicants).
  • Clients in this group who apply under this public policy after they are deemed removal ready by CBSA will not benefit from the administrative deferral of removal.

Comments

  • CIC will contact all HC1 clients with a spousal connection to see if they want to submit a sponsorship and all H&C clients with a spousal connection to see if they wish to be considered under the public policy. See Appendix A for details.

Deferral counted from which day?

  • The calculation of the 60 days begins the day the client attends their pre-removal interview and is given the option to have a PRRA but waives or is not eligible for a PRRA.
Case 2

Client attended pre-removal interview after February 18, 2005 and applied for permanent residence after February 18, 2005 and after attending the pre-removal interview.

Eligible for deferral?

  • No. Clients in this group are deemed removal ready by CBSA will not benefit from the administrative deferral of removal.

Comments

  • None

Deferral counted from which day?

  • No deferral
Client attended a pre-removal interview after February 18, 2005 and applied for permanent residence before February 18, 2005.

Eligible for deferral?

  • Yes if CIC has received a sponsorship application or if CIC has not yet contacted the client to see if they want to submit a sponsorship (applicable only to HC1 cases).
  • This means that HC1 cases with a spousal connection received before February 18, 2005 will be eligible for the deferral even if there is no sponsorship on file. See exception in comments section.

Comments

  • If the notes to file indicate that the client has been contacted (in HC1 cases) and does not wish to submit a sponsorship or has failed to respond to CIC’s request for a sponsorship within the specified time period the deferral would not apply.

Deferral counted from which day?

  • The calculation of the 60 days begins the day the client attends their pre-removal interview and is given the option to have a PRRA but waives or is not eligible for a PRRA.

Transitional cases (clients invited for pre-removal interview before February 18, 2005)

Types of cases
Case 1

Client attended a pre-removal interview before February 18, 2005 and applied for permanent residence before February 18, 2005 (transitional case).

Eligible for deferral?

  • Yes. These transitional case clients will be able to benefit from an administrative deferral of removal even if they are removal ready (and have already benefited from a PRRA) if eligible for deferral of removal.
  • These clients are eligible for the deferral of removal both if CIC has received a sponsorship application or if CIC has not yet contacted the client to see if they want to submit a sponsorship (applicable only to HC1 cases).
  • This means that HC1 cases with a spousal connection received before February 18, 2005 will be eligible for the deferral even if there is no sponsorship on file. See exception in comments section.

Comments

  • “Transitional cases” are those for which the clients attended a pre-removal interview before the announcement of the public policy on February 18, 2005.
  • CIC will contact clients as needed to see if they want to submit a sponsorship or be considered under the public policy. See Appendix A for details.
  • If the notes to file indicate that the client has been contacted (in HC1 cases) and does not wish to submit a sponsorship or has failed to respond to CIC’s request for a sponsorship within the specified time period the deferral would not apply.

Deferral counted from which day?

  • The calculation of the 60 days begins from the “cut-off” date August 26, 2005.
Case 2

Client attended a pre-removal interview before February 18, 2005 and applied for permanent residence after February 18, 2005 (transitional case).

Eligible for deferral?

  • These transitional case clients may be able to benefit from an administrative deferral of removal even if they are removal ready (and have already benefited from a PRRA). However, they are only eligible to benefit if CIC has received an application for permanent residence and a sponsorship application before the cut-off date August 26, 2005. Otherwise they are not eligible for the deferral of removal.

Comments

  • “Transitional cases” are those for which the clients attended a pre-removal interview before the announcement of the public policy on February 18, 2005.
  • CIC will contact clients as needed to see if they want to submit a sponsorship or be considered under the public policy. See Appendix A for details.
  • If the notes to file indicate that the client has been contacted (in HC1 cases) and does not wish to submit a sponsorship or has failed to respond to CIC’s request for a sponsorship within the specified time period the deferral would not apply.

Deferral counted from which day?

  • The calculation begins from the cut-off date August 26, 2005 if the client has applied by that date. Otherwise they are not eligible for the deferral.

Individuals should keep copies of their application forms, fee remittances and mail receipt as applicable, as proof they have filed an application. Such proof in no way guarantees the grant of a deferral of removal (where relevant) however.

Where the deferral period applies, CIC will make best efforts to process spousal sponsorship cases to a step-one decision within 60-day period. (A step-one decision occurs after CIC has received an application which contains evidence that the applicant is married or in a common-law relationship with an eligible sponsor, is living with that sponsor and that the sponsorship submitted is a valid one.). After a positive step-one decision, the R233 stay will be invoked until such time as CIC makes a final decision on whether to grant permanent residence. More details on the regulatory stay are found below.

Regulatory stay of removal

The regulatory stay outlined in R233 will apply to cases considered under the public policy after a positive "step one" or "approval in principle" decision has been made under the regular procedures for the Spouse or Common-law Partner class.

This regulatory stay applies to removal orders if the Minister is of the opinion under subsection 25(1) of the Act that H&C or public policy considerations exist. For cases considered under the public policy, once a positive step one decision is made under the regular procedures for the class (i.e., CIC has received an application which contains evidence that the applicant is married or in a common-law relationship with an eligible sponsor, is living with that sponsor and that the sponsorship submitted is a valid one), an R233 stay will be invoked and will remain in place until a decision on whether to grant permanent residence is made.

6. Codes

Applications processed under this public policy (accepted or refused) must be coded in FOSS as FCH. Applications that are not approved under this public policy but are later approved on H&C grounds should be coded HC1, or, in rare instances, HC2 (depending on if a sponsorship has been submitted). For statistical purposes, cases coded FCH should be counted as H&C cases for grant of permanent residence. However, FCH cases are considered family class cases for all other purposes including sponsorship enforcement.

7. Questions

Questions on this public policy may be directed to OMC-GOC-Immigration@cic.gc.ca.

8. Appendix A: Case type list for application of the public policy

Codes

HC1: H&C - no sponsorship

HC2: H&C - with sponsorship

FC1: Family Class – Spouse

FCC: Family Class – Common-law Partner

FCH: Cases accepted/refused under this public policy

A. H&C cases

Types of cases

Case 1

Previously refused HC1 or HC2 spousal case

Action
  • Because the legal principle of functus officio does not permit the Department, in the present context, to revisit finalized applications, this change is not retroactive; therefore, refused applicants may re-apply.
Case 2

Pending HC1 application with spousal connection

Action
  • Contact client to inform of public policy: if sponsorship is submitted, applicant eligible for consideration according to the regulations of the Spouse or Common-law Partner in Canada class (FCH).
  • If sponsorship submitted and applicant otherwise meets eligibility criteria, assess under provisions of Spouse or Common-law Partner in Canada class.
  • If sponsorship not subsequently submitted, there are two possible scenarios:
    • Applicant chose not to submit a sponsorship.
      • Assess these applicants under general H&C provisions in IP5 (separation from a partner not automatic hardship). (HC1)
    • Applicant wanted to submit a sponsorship, but sponsor was ineligible.
      • Assess these applicants under general H&C provisions in IP5 (separation from a partner not automatic hardship). However, because of the desire to sponsor, these applicants may warrant favourable consideration. This is depending on the circumstances of the case and up to the officer’s discretion. (HC1)
  • If it initially appears that the applicant meets the requirements of the Spouse or Common-law Partner in Canada class, but it is later determined that the applicant is ineligible for the class (e.g. invalid sponsorship), reassess the application under general IP5 provisions. This is because the applicant originally applied for H&C consideration. However, because these applicants do not meet the requirements of this public policy, they are required to demonstrate unusual and undeserved or disproportionate hardship to the H&C decision-maker. (HC1)
  • Refused applicants who were considered both under public policy provisions and general H&C procedures should be informed of this fact in the refusal letter.
  • Clients are not eligible for the refund provision.
Case 3

Pending HC2 application

Action
  • If sponsorship submitted and applicant otherwise meets eligibility criteria, assess under provisions of Spouse or Common-law Partner in Canada class. (FCH)
  • If it initially appears that the applicant meets the requirements of the Spouse or Common-law Partner in Canada class, but it is later determined that the applicant is ineligible for the class (e.g. invalid sponsorship), reassess the application under general IP5 provisions. This is because the applicant originally applied for H&C consideration. However, because these applicants do not meet the requirements of this public policy, they are required to demonstrate unusual and undeserved or disproportionate hardship to the H&C decision-maker. (HC1)
  • Refused applicants who were considered both under public policy provisions and general H&C procedures should be informed of this fact in the refusal letter.
  • Clients are not eligible for the refund provision.
Case 4

New HC1 spousal application

Action
  • Contact client to inform of public policy: if the applicant agrees to have the application assessed under the provisions of the Spouse or Common-law Partner in Canada class, and submits a sponsorship, applicant is eligible for consideration.
  • If valid sponsorship submitted and the applicant agrees to be assessed under the provisions of the Spouse or Common-law Partner in Canada class, assess under provisions of this class.
  • If the applicant is found ineligible for the Spouse or Common-law Partner in Canada class (i.e. invalid sponsorship), refuse the application. Clients are not eligible for the refund provision. If they wish, they may reapply for H&C consideration. Because they agreed to be assessed under the provisions of the Spouse or Common-law Partner in Canada class, they are not entitled to an H&C reassessment.
  • If valid sponsorship not submitted or the applicant does not agree to have the application assessed under the provisions of the Spouse or Common-law Partner in Canada class, assess under general H&C provisions (separation from a partner not automatic hardship).
  • For those applicants who wished to submit a sponsorship but did not qualify to do so, or who submitted a sponsorship but were found to be ineligible (i.e. invalid sponsorship), this may be considered a positive H&C factor, depending on the reasons for ineligibility. (HC1)
Case 5

New HC2 spousal application

Action
  • Contact client to determine if the applicant wishes to be assessed under the provisions of the Spouse or Common-law Partner in Canada.
  • If the applicant does not wish to be considered under the provisions of the Spouse or Common-law Partner in Canada, the applicant is not eligible for this public policy and should be assessed under general IP5 guidelines. (HC2)
  • If applicant wishes to be considered under the public policy, assess the application under the provisions of the Spouse or Common-law Partner in Canada class. (FCH)
  • If the applicant is found ineligible under the regulations of the Spouse or Common-law Partner in Canada class (i.e. invalid sponsorship), refuse the application. If they wish, they may reapply for H&C consideration. (HC1) Because they agreed to be assessed under the provisions of the Spouse or Common-law Partner in Canada class, they are not entitled to an H&C reassessment. Client is eligible for refund provision.

B. Spouse or common-law partner in Canada class cases

In all types of cases, clients are eligible for refund provision if they have elected for this option.

Types of cases

Case 1

Previously refused FC1/FCC cases for being out of status

Action
  • Because the legal principle of functus officio does not permit the Department, in the present context, to revisit finalized applications, this change is not retroactive; therefore, applicants may re-apply for H&C consideration or in the Spouse or Common-law Partner in Canada class depending on the case.
Case 2

Pending FC1/FCC case (in status)

Action
  • Assess using normal procedures in IP2 and IP8.
  • If these applicants are refused for not meeting the other requirements of the Spouse or Common-law Partner in Canada class, they are not entitled to a reassessment on H&C grounds, but may reapply for H&C consideration.
Case 3

Pending FC1/FCC case (out of status)

Action
  • Assess using normal procedures in IP2 and IP8.
  • If the applicant meets all other requirements of the Spouse or Common-law Partner in Canada class, their requirements for status and the inadmissibility related to the lack of status will be waived by the public policy under A25. (FCH)
  • If the applicant does not meet the other requirements of the Spouse or Common-law Partner in Canada class, refuse the application. These applicants are not entitled to a reassessment on H&C grounds, but may reapply for H&C consideration.
Case 4

New FC1/FCC case (in status)

Action
  • Assess using normal procedures in IP2 and IP8.
  • If the applicant does not meet the other requirements of the Spouse or Common-law Partner in Canada class, refuse the application. These applicants are not entitled to a reassessment on H&C grounds, but may reapply for H&C consideration.
Case 5

New FC1/FCC case (out-of-status)

Action
  • Assess using normal procedures in IP2 and IP8.
  • If the applicant meets all other requirements of the Spouse or Common-law Partner in Canada class, their requirements for status and the inadmissibility related to the lack of status will be waived by the public policy under A25. (FCH)
  • If the applicant does not meet the other requirements of the Spouse or Common-law Partner in Canada class, refuse the application. These applicants are not entitled to a reassessment on H&C grounds, but may reapply for H&C consideration.

9. Appendix B – Treatment of pending H&C cases (received prior to February 18, 2005)

Officers should use a broad interpretation of the term “pending” under this public policy. This means that the term pending should potentially include all cases pending either an H&C decision (step one) or a final decision (step two) provided the application was received prior to February 18, 2005. The rationale behind this broad interpretation relates to the Department’s goal to process as many eligible clients as possible under the provisions of the public policy and its commitment to consider all pending H&C applications with sponsorships under the public policy.

For administrative simplicity however, it is recommended that officers not disturb existing positive H&C (step one) decisions to revisit them under the public policy unless it is clear that the client will either:

  • be refused on an admissibility ground (at step two) from which they would otherwise be exempted under the provisions of the Spouse or Common-law Partner in Canada class (i.e., excessive demand and minimum necessary income requirement) and thus benefit under the public policy or
  • benefit from the concurrent processing of family members under the public policy.

What this means in practical terms is that for clients who have already received a step one or H&C decision, officers should continue to process these cases to completion using the guidance in IP5 unless it is clear that the client would receive a benefit (as outlined above) by being processed under the public policy (Spouse or Common-law Partner in Canada class provisions).

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