Operational Bulletin 324 - July 19, 2011

Instructions to officers on adding a co-signer to a family class sponsorship undertaking

Summary

The ruling in the decision of Dokaj v. Canada (Federal Court of Canada, 2009 FC 847) has led Citizenship and Immigration Canada (CIC) to review its interpretation of the Immigration and Refugee Protection Regulations (Regulations) concerning the adding of a co-signer to an existing family class sponsorship undertaking. This Operational Bulletin (OB) gives instructions to officers on adding a co-signer to a family class (FC) sponsorship undertaking.

Issue

The ruling in the decision of Dokaj v. Canada (Federal Court of Canada, 2009 FC 847) has led CIC to review its interpretation of the Regulations concerning the adding of a co-signer to an existing FC sponsorship undertaking.

Background

In the Dokaj case, the sponsor submitted an application to sponsor his parents and their eligible dependent children. Before receiving a response from CIC on the sponsorship application, the sponsor submitted an updated application, indicating that he was in a common-law relationship. The sponsor also included an updated undertaking co-signed by his common-law spouse. The application was refused, as the sponsor no longer met the minimum income requirements (R133(1)(j)(i)). As per the existing interpretation of R133(1), the common-law partner was ineligible to co-sign the application since she was not on the application when it was originally received at the Case Processing Centre in Mississauga (CPC-M). Her income could therefore not be considered toward the financial test.

Mr. Dokaj, the sponsor, filed an application to the Federal Court for leave and judicial review of the decision of the officer to refuse the applicant’s application to sponsor a member of the FC. The officer found, as per the existing interpretation of R133(1), the applicant’s common-law partner ineligible to co-sign the sponsorship application considering that she was not on the application when it was originally received by the CPC-M. The applicant argued that his common-law partner’s income should have been considered in minimum necessary income calculations.

On August 27, 2009, the Federal Court found in favour of the applicant. Justice Beaudry concluded that: “If an Applicant’s common-law spouse is to be considered in the calculation of the size of the Applicant’s family, her income should also be included in the sponsorship undertaking as per subsection 132(5) and paragraph 134(1)(c) of the Regulations. The statutory provisions do not provide for the exclusion of the spouse’s income while including her as a dependent member of the applicant’s family.”

Justice Beaudry’s reasoning was that CIC could not take into account the additional expenses incurred when adding a family member to the household, such as a spouse or common-law partner, without also taking into consideration the income that the individual brings to the household, if they have co-signed an undertaking.

In order to comply with the court order in the Dokaj case, CIC has developed a reinterpretation of the existing Regulations to allow for the addition of a co-signer to a sponsorship application after it has been received by CIC.

Reinterpretation of the Regulations

With respect to the co-signing of a sponsorship undertaking, subsection 132(5) of the Regulations states the following:

R133(1) requires that a sponsor be in compliance with the sponsorship requirements laid out in 133(1) (a) to (k) from the day on which the application was received by CIC until the day on which a decision is made on their application. Since this provision requires an uninterrupted continuum of meeting the sponsorship criteria throughout the processing of the application, CIC has historically held that a co-signer could not be added to a sponsorship application after it was submitted to CPC-M. Under the new interpretation, where a change in family composition is reported that would otherwise prevent the sponsor from continuing to meet the R133(1)(j)(i) minimum income requirement, the requirement can be considered to have been fulfilled if a co-signer is also being added to the sponsorship undertaking and the combined incomes of the sponsor and co-signer together satisfy the income requirement.

With respect to income calculation, R134(1)(d) states that: “if there is a co-signer, the income of the co-signer, as calculated in accordance with paragraphs (a) to (c), with any modifications that the circumstances require, shall be included in the calculation of the sponsor’s income”.

Henceforth, a co-signer can be added between the day on which the sponsorship application was filed and the day on which a decision is made with respect to the application, if required, due to a change in circumstances related to family composition. When assessing the sponsor’s income against the minimum necessary income requirement (R133(1)(j)(i)), both the increase in the minimum income requirements resulting from the addition of a family member, and the co-signer’s income, calculated in accordance with R134 (a) to (c) against the Low Income Cut-off (LICO) in effect at that time, shall be considered.

It should be noted, however, that a co-signer may not be added to the sponsorship application if the sponsorship was already assessed and at that assessment, the sponsor failed to meet the sponsorship requirements. R133(1) requires that a sponsor be in compliance with the sponsorship requirements detailed in R133(1) (a) to (k) from the time the application was received by CIC until the time that a final decision is made on their application.

Operational instructions based on re-interpretation of R132(5)

The following instructions provide guidance to officers on assessing a sponsorship application where a reassessment is necessary due to a change in circumstances.

1. Co-signer included at time of filing

• When the co-signer is included at the time of filing, the income of both the sponsor and co-signer is assessed in accordance with R134(1)(a) and (b) – (test 1).
• If the sponsor and co-signer do not produce a document referred to in 134(a), their income is assessed in accordance with R134(1)(c) – (test 2)
• Where a reassessment, pursuant to R134(2), is required at a later date due to a change in circumstances, only test 2 described in R134(1)(c) applies. Line 150 of the last notice of assessment issued by the Minister of National Revenue cannot be used.
• R134(2) re-assessment is conducted for the 12 month period prior to the most recent change in circumstances or, if request for reassessment is made by the visa office, the 12 month period prior to the visa office request being received at CPC-M.

Example of most recent change in circumstances

A sponsor submitted an application on January 1, 2008, to CPC-M to sponsor his widowed father and has included his spouse in the application as a co-signer. He must meet the minimum income requirements for a family of 3. The application is in queue and waiting to be processed. In November 2008, the sponsor advises us that his wife has given birth to a baby and, as a result, his family has increased to 4 people (1st change in circumstance). Since the application is still in queue for processing, the correspondence is attached to the sponsor’s application to be assessed when the sponsorship application comes to the front of the queue. In December 2009, the sponsor and his wife have a second child which increases the family size to 5 for the purpose of the financial test (2nd change in circumstance).

• CPC-M would assess the income of the sponsor and of the co-signer, based on the original 12 month period (January 1, 2007 to January 1, 2008) as per R134(1), to determine if the sponsor meets the financial test for 3 persons.

If sponsor does not meet original assessment

• If the sponsor does not meet the financial test, a NOT MET recommendation is rendered. There is no need for a section 134(2) reassessment, as the sponsor must satisfy the R133(1)(j) minimum income requirements from the day on which the application was received by CIC until the day on which a decision is made on their application.

If the sponsor meets the requirement to sponsor at time of filing (original assessment)

Both assessments (R134(1) initial assessment met and R134(2) reassessment, if applicable) and recommendation must be clearly recorded in the Global Case Management System (GCMS), and the visa office notified.

2. Co-signer not included at time of filing

Original application at time of filing does not include a co-signer; application is still in queue for processing at CPC-M (pre-recommendation stage) and has not been sent to the visa office; request to add a co-signer may or may not have been made by the sponsor.

• Sponsor did not include a co-signer at time of filing.
• Upon review of application, CPC-M notes that there has been a change in circumstances which warrants a re-assessment.
• CPC-M performs an initial assessment and verifies if the sponsor meets the financial test for the 12 month period prior to the filing/lock-in date.

If sponsor does not meet original assessment:

• If the sponsor does not meet the financial test, a NOT MET recommendation is rendered. The option to include a co-signer at this point is not possible as the applicant has not satisfied R133(1)(j).
• Even if circumstances have improved from a financial perspective for the sponsor since his original submission, a reassessment cannot be made when the sponsor has failed to meet the financial test at the first assessment (R133(1)(j)). If the sponsor opted to proceed, the “NOT MET” recommendation is updated in GCMS.

If sponsor meets the original assessment:

• Sponsor meets the financial test in the original assessment period and, due to a change in circumstances, the family size has increased and the sponsor no longer meets MNI (sponsor has married, sponsor has had a child, etc)

R134(2) applies; CPC-M initiates a re-assessment of the 12 month period prior to receipt of the new information (the 12 month period prior to the most recent change in circumstances) and clearly records the established reassessment period in the Work in Progress (WIP) events.

Example:

A sponsor (single) submitted an application on January 1, 2008 to CPC-M to sponsor his widowed father. He must meet for a family of 2. The application is in queue and waiting to be processed. On January 1, 2009 he gets married and his family increases to 3 people (1st change in circumstance). He writes to our office and advises that he has married and that his wife is expecting a child. The correspondence is attached to his application for review once application comes up in queue. By the time CPC-M first reviews the application, the baby is born (2nd change in circumstance) and the family size is now 4 persons which includes himself, his spouse, his newborn child and his father.

• If the applicant meets the original R134(1) assessment based on a family of two, a reassessment is required based on the change in circumstances.

Note: If the sponsor chooses to proceed without adding a co-signer and a negative recommendation is rendered, the sponsor cannot request to add a co-signer after a negative recommendation is made by CPC-M.

Both assessments (initial assessment met and reassessment if applicable) must be clearly recorded in GCMS. Both the original and updated 1344A and 1344B forms should be kept on file.

3. Co-signer not included at time of filing, but application already at the visa office

CPC-M has already rendered a recommendation on the sponsorship application; the application for permanent residence is in process at the visa office when new information is received at CPC-M indicating that the sponsor wishes to add a co-signer to the sponsorship application in order to meet the financial test .

If the visa office is informed or notes that there is a change in circumstances, CPC-M should be notified so that they can review the sponsorship and determine if a reassessment is necessary.

Initial or previous assessment NOT MET:

A co-signer cannot be included because we cannot do upward reassessments (change a former negative assessment to a positive assessment) since the sponsor must meet the financial requirements throughout the entire process (R133(1)(j)); the sponsor and the visa office are informed that the negative assessment remains intact.

Please refer to the following paragraph if a previous assessment was not met.

Initial assessment MET but reassessment NOT MET:

If a case is still in process where CPC-M rendered a Not Met reassessment and the officer is satisfied that the Dokaj decision applies to the specific circumstances of the case, in that

• The sponsor met the sponsorship requirements including the minimum necessary income when initially assessed; and
• Due to a change in family composition, the sponsor requested that their spouse or common-law partner be added as a co-signer; and
• The addition of a co-signer after the sponsorship application was submitted was not permitted in accordance with the existing interpretation of R133(1);

The sponsorship application should be reassessed with the addition of the co-signer.

If the co-signer meets the requirements of R132(5), the total income of the sponsor must be determined in accordance with R134(1)(d).

When the sponsorship requirements are met with the addition of the co-signer, the sponsor will be advised that a reassessment is required, and

1. To submit new financial documentation for the applicable re-assessment period (the 12 month period prior to CPC-M being advised of the change in circumstances);
2. That they are eligible to include their spouse or common-law partner as a co-signer, if that person meets the requirements of R132(5) and that the following documents must also be submitted if the spouse or common-law partner is added as a co-signer:
   • A new/updated 1344A (application and undertaking) signed by the sponsor and co-signer;
   • A new 1344B (Agreement) signed by the sponsor, co-signer and principal applicant; and
   • An updated financial evaluation (IMM 1283) form completed by both the sponsor and co-signer

Initial assessment MET:

• Re-assessment to be conducted for the 12 month period prior to CPC-M being advised of the most recent change in circumstances or, if the request for a reassessment was made by the visa office, the 12 month period prior to receipt of the reassessment request at CPC-M from the visa office.
• The sponsor will be advised that a reassessment is required, and

1. To submit new financial documentation for the applicable re-assessment period;
2. That they are eligible to include their spouse or common-law partner as a co-signer, if that person meets the requirements of R132(5) and that the following documents must also be submitted if the spouse or common-law partner is added as a co-signer:
   • A new/updated 1344A (application and undertaking) signed by the sponsor and co-signer;
   • A new 1344B (Agreement) signed by the sponsor, co-signer and principal applicant; and
   • An updated financial evaluation (IMM 1283) form completed by both the sponsor and co-signer

Note: If the sponsor chooses to proceed without adding a co-signer and a negative recommendation is rendered, the sponsor cannot request to add a co-signer after our negative recommendation is made.

4. Quebec cases

When a sponsor is a resident of Quebec, CPC-M does not have jurisdiction to assess the financial test, co-signers, bankruptcy, and defaults of undertakings or support payments. These eligibility requirements are not reviewed at the Federal level and the application is forwarded to the Ministère de l’Immigration, de la Francisation et de l’Intégration (MIFI) for provincial review and assessment of these eligibility requirements.

However, there are occasions where the sponsor moves out of the province of Quebec prior to MIFI conducting an assessment and/or the visa office rendering their final decision.

For applications where the sponsor was a resident of Quebec at the time of filing but has since moved to another province (before a visa is issued); the sponsor will be advised that a financial assessment is required and that he is eligible to include his spouse or common-law partner as a co-signer at this time, provided that:

1. The co-signer meets all eligibility requirements to co-sign (as per R132(5));
2. a new/updated 1344A (application and undertaking) signed by the sponsor and co-signer is submitted;
3. A 1344B (Agreement) is provided signed by the sponsor, co-signer and principal applicant; and,
4. Updated financial evaluation form (IMM 1283) is completed by both the sponsor and co-signer.

Note: The assessment period will be the 12 month period prior to CPC-M receiving a new signed 1344A and signed agreement.

The lock-in date will remain the date on which the original signed sponsorship application and processing fees were received at CPC-M.

If MIFI has rendered a negative financial assessment in a situation where the sponsor has moved to another province, please contact Operational Management and Coordination Branch (OMC) via the general mailbox at OMC-GOC-Immigration@cic.gc.ca for further instructions.

Summary of when a co-signer can be added to an existing sponsorship application:

1. In all cases, the sponsor must have met all sponsorship eligibility requirements at the initial sponsorship assessment.
2. In all cases, a co-signer may not be added after a negative (Not Met) recommendation has been rendered on the initial assessment.
3. In all cases, a co-signer may not be added after a negative (Not Met) recommendation has been rendered on a reassessment.
4. CPC-M will add a co-signer after the initial assessment, even if the sponsor did not choose to include the co-signer at initial filing of the sponsorship application, as long as the sponsor met the original financial assessment and all other eligibility requirements on his own.
5. If the sponsor is given the opportunity to add a co-signer following a change in circumstances and chooses not to do so and a negative recommendation is rendered, on a reassessment, the sponsor cannot then request to add a co-signer.
6. Although the facts in the Dokaj case were specific to the sponsorship of parents, the re-interpretation of the regulations, allowing the addition of the co-signer after filing, will apply to all family class categories where the financial test is applicable.

Cases before the Federal Court

In cases similar to the Dokaj case which are before the Federal Court (cases where the sponsor chose not to proceed with the application for permanent residence), CIC will consider whether or not it is appropriate to consent to the Judicial Review. If a case is consented on, it will be returned to CPC-M for reconsideration of the sponsorship requirements. The sponsor will then be advised by CPC-M that a reassessment is required, and

1. To submit new financial documentation for the applicable re-assessment period;
2. That they are eligible to include their spouse or common-law partner as a co-signer, if that person meets the requirements of R132(5) and that the following documents must also be submitted if the spouse or common-law partner is added as a co-signer:
   • A new/updated 1344A (application and undertaking) signed by the sponsor and co-signer;
   • A new 1344B (Agreement) signed by the sponsor, co-signer and principal applicant; and
   • An updated financial evaluation (IMM 1283) form completed by both the sponsor and co-signer

Cases before the Immigration Appeal Division (IAD)

Hearings Officers representing the Minister on cases similar to the Dokaj case must apply this new interpretation of the sponsorship Regulations. The elements which must be present to equate a case before the IAD to the Dokaj case are the following:

• The case was refused by a visa officer specifically because the sponsor did not satisfy the minimum income requirement (R133(1)(j)), and;
• Before the decision was made on the case, the sponsor had informed us of a change in family composition and asked to add a co-signer to the sponsorship undertaking.

If the Hearings Officer is satisfied that the Dokaj decision applies to the specific circumstances of the case being appealed, the Hearings Officer will inform the visa office that they believe a reassessment should apply and seek their position. Depending on the visa office response, the Hearings Officer will then either request that the sponsor withdraw the appeal or request an adjournment from the IAD. This way the appellant maintains their place in the “queue” to have their appeal heard. The reason for CIC’s request for either the withdrawal or the adjournment will be explained to the appellant.

If the appellant agrees to withdraw their appeal or if there is an adjournment from the IAD, the Hearings Officer will inform the appropriate visa office and, accordingly, return the file to that office. The Hearings Officer will copy the CPC-M on their email communications with the visa office in this regard.

CPC-M will then notify the sponsor (appellant) to submit a new IMM 1344A, IMM 1344B and an updated financial evaluation form (IMM 1283), completed by both the sponsor and the co-signer, to the CPC-M. When CPC-M receives the new forms completed by the sponsor and co-signer, they will assess the co-signer in accordance with R132(5) and calculate the total income of the sponsor in accordance with R134(1)(b) or (c), taking into account the income of the co-signer as required in R134(1)(d). If the sponsorship requirements are met with the addition of the co-signer, CPC-M will notify the sponsor (by letter), the Hearings Officer and the visa office that the sponsorship requirements have been met.

If there is a withdrawal of the appeal, then the visa office will proceed to process the application(s) for permanent residence for the sponsored applicant(s). If there was an adjournment, then following the met reassessment, the Hearings Officer should be asking the appellant to withdraw their appeal. Following the withdrawal, the visa office will proceed to process the application for permanent residence for the sponsored applicant(s).

If the appellant does not opt to withdraw their appeal or if the appeal hearing is not adjourned, the case will be processed at the IAD taking into account the re-interpretation of the sponsorship Regulations. The Hearings Officer will advise the visa office and CPC-M accordingly and ask the appellant to submit to the CPC-M, a new IMM 1344A and IMM 1344B and an updated financial evaluation form (IMM 1283), completed by both the sponsor and the co-signer, to allow for a financial reassessment which takes into account the income of the co-signer. Where all of the sponsorship requirements are met by the sponsor and the co-signer, including the minimum necessary income requirement, the Hearings Officer is encouraged to consider consenting to the appeal. If the Hearings Officer consents to the appeal, the entire file, including any new documents submitted to the IAD by the appellant, will be transferred back to the appropriate office with instructions for the processing of the permanent resident application(s) to continue. CPC-M will then forward the new IMM 1344 A and B forms and the updated IMM 1283 to the same office.