Www.onefamilylaw.ca Conditional Permanent Residence: What a Sponsored Spouse Needs to Know December 13, 2012 13/12/20121 Tamar Witelson, Legal Director,

www.onefamilylaw.ca

Conditional Permanent Residence:What a Sponsored Spouse Needs to

KnowDecember 13, 2012

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Tamar Witelson, Legal Director, METRACRaoul Boulakia, Immigration and Refugee Lawyer, Toronto, Ontario

Funded by:

METRACMETRAC, the Metropolitan Action Committee on Violence Against Women and

Children works to end violence against women, youth and children a not-for-profit, community-based organization

www.metrac.org

METRAC’s Community Justice Program provides accessible legal information and education for women and service

providers focuses on law that affects women, from diverse backgrounds, especially

those experiencing violence or abuse

FLEW, Family Law Education for Women in Ontario provides information on women’s rights and options under Ontario family law in 14 languages, accessible formats, online and in print

www.onefamilylaw.ca

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Presenters

Tamar WitelsonLegal Director, METRAC

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Raoul BoulakiaImmigration and Refugee Lawyer,

Toronto, Ontario

Topics to be Covered

1. The Old System

2. The New Law

3. How to Rely on the Exception for Abuse/Neglect

4. Concerns for Women and Children

5. What To Do If Immigration Status Is At Risk

6. Additional Resources

Information is accurate as of December 13, 2012

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The Old System

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The Old System

Spousal/Partner SponsorshipCanadian Citizen or Permanent Resident

could apply to sponsor for permanent residence:

• a married spouse • a common law spouse (1 year or more)• a conjugal (marriage like) partner• a same-sex spouse/partner• a spouse/partner inside or outside of Canada

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The Old SystemSpousal/Partner Sponsorship

Requirements:• Genuine relationship• General admissibility of sponsored person

Approximately 16% of applications were refused

When application was approved, sponsored person became Permanent Resident

Permanent status revocable at any time if based on misrepresentation

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The New Law

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The New Law Conditional Permanent Residence• Amendment to Regulations under the Immigration and

Refugee Protection Act

• Applies to: Sponsored spouse/partner Married or conjugal relationship with sponsor for 2 years or less

at time of application for permanent residence The couple has no children together at the time of application Applicants inside and outside Canada

• In effect as of October 25, 2012

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The New Law Conditional Permanent Residence• The condition:

Sponsored spouse/partner and sponsor must co-habit in a conjugal (marriage-like) relationship for 2 continuous years after conditional permanent residence is granted

Children born after the application do not change the condition

Government computer system will record when condition applies and ends

(Global Case Management System – GCMS)13/12/2012 10

The New Law Conditional Permanent Residence

• The consequence: If the spouse/partner leaves the relationship within 2

years, her permanent residence may be revoked, and

She may be deported, and

Any family member who became a permanent resident based on accompanying or being sponsored by the sponsored spouse may also have permanent residence revoked and be deported

Sponsor remains financially responsible for sponsorship period, even after relationship breakdown13/12/2012 11

The New Law Conditional Permanent Residence• The exceptions:

1. Death of sponsor

2. Sponsor Abuses or Neglects: • sponsored person• child of sponsored person or sponsor• relative of sponsored person or sponsor who lives

in their home

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The New Law Conditional Permanent Residence• The exceptions:

3. Sponsor’s relative abuses or neglects, and sponsor fails to protect:• The sponsored person

• A child of the sponsored person or sponsor

• A relative of the sponsored person or sponsor who lives in their home

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The New Law Conditional Permanent Residence• Abuse means:

Physical abuseSexual abuseAssaultForcible confinementPsychological abuseThreats and intimidationFinancial abuse, fraud, taking things by

force/threat (extortion)

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The New Law Conditional Permanent Residence• Neglect means:

Failure to provide necessaries of life, such as:• Food• Clothing • Shelter• Medical care• Failure to give anything that results in risk of serious

harm

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The New Law Conditional Permanent Residence• Enforcement

Citizenship and Immigration Canada (CIC):• May do random assessments of couples

• May investigate tips, complaints, anonymous reports

• May require proof that the sponsor and sponsored person are complying with the 2 year condition

• CIC Operational Bulletin 480 – Conditional

Permanent Residence

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How to Rely on the Exception for

Abuse/Neglect

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How to Rely on the Exception for Abuse/Neglect

• Initial Request is made by calling Citizenship and Immigration Canada Call Centre

1-888-242-2100 (toll free)

• Consider calling with a support person

• Provide contact information for a confidential call, where and when you will be safe

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How to Rely on the Exception for Abuse/Neglect

• Must provide evidence of abuse/neglectFrom sponsored personFrom any other relevant evidence, such as:

• Shelter or other social support person• Police report• Medical report• Court documents• Photographs, emails, voicemail• witness

• Must provide evidence of conjugal cohabitation with sponsor until it stopped because of abuse/neglect

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How to Rely on the Exception for Abuse/Neglect

• Information and evidence may be provided by Phone, email, fax, mail

• Evidence must show abuse/neglect was the reason for relationship breakdown

• Must leave the relationship and home before requesting the exception for abuse/neglect

• Any information of abuse to, or witnessed by a child may be reported by CIC to child protection authorities or police, with or without the mother’s consent

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Presenters

Tamar WitelsonLegal Director, METRAC

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Raoul BoulakiaImmigration and Refugee Lawyer,

Toronto, Ontario

Concerns for Women and Children

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Concerns for Women and Children

Common Barriers to leaving an abusive relationship:• Concern about children and custody• Fear of homelessness and poverty• Controlling partners and other family members • Attitudes of family, friends and community members• Not knowing legal rights• Not knowing about resources or how to find help • Discrimination• Comfort with English language and Canadian

customs

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Concerns for Women and Children

More Barriers to Leaving Abuse for Conditional Permanent Residents:

• Not knowing immigration law and personal rights

• Fear of deportation for self and children

• Fear of deportation without children

• Fear of deportation of sponsored relatives

• Burden of proving abuse/neglect

• Cost of gathering evidence, working with a lawyer

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Concerns for Women and Children

The new Conditional Permanent Residence may:• Trap women to stay in abusive relationships for two

years or longerNot knowing when condition appliesNot knowing about the exceptionNot knowing when the condition ends

• Give sponsor power to threaten deportation for two years or more

• Give family, friends and community members power to threaten reporting that could lead to deportation

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Concerns for Women and Children

The new Conditional Permanent Residence may:

• Create conditions of unfair demands and forced behaviour

• Create conditions of fear, helplessness, guilt

• Force couples to stay together despite genuine, agreed relationship breakdown

• Perpetuate the stigma and stereotype of “dishonest” immigrants

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Concerns for Women and Children

The new Conditional Permanent Residence may:• Harm children

Remaining in an abusive home

Facing separation from a parent after deportation

Facing deportation as a relative of a sponsored person

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What To Do If Immigration Status Is At

Risk

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What To Do If Immigration Status Is At Risk

• Risks during Conditional Permanent ResidenceSponsor can end relationship at any time, leading

to revocation of permanent resident status

Citizenship and Immigration Canada can determine the condition of permanent residence was not met

Request for exception for abuse/neglect could be denied

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What To Do If Immigration Status Is At Risk

• If Compliance with the Condition of Permanent Residence is Questioned

CIC investigates

Submissions may be made

CIC may write an inadmissibility report

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What To Do If Immigration Status Is At Risk

• If Inadmissibilty Report is Issued

Hearing at Immigration Division of Immigration and Refugee Board

Sponsored person has right to appear and make submissions

Getting a lawyer to represent you is important

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What To Do If Immigration Status Is At Risk

• If Deportation is Ordered Sponsored person has right to appeal to Immigration Appeal

Division of the Immigration and Refugee Board

May include Humanitarian and Compassionate grounds in appeal

If sponsored person loses appeal, may ask Federal Court to judicially review the decision

Getting a lawyer to represent you is important

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What To Do If Immigration Status Is At Risk

• If Deportation is Ordered, Sponsored Person may also:

Apply for Permanent Residence based on Humanitarian and Compassionate (H&C) grounds

Consider getting legal advice about a possible Refugee Claim, if she believes she is at risk of persecution in her home country

Cannot make H&C application at same time as a Refugee Claim

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What To Do If Immigration Status At Risk

Humanitarian and Compassionate Applications

Citizenship and Immigration Canada: Inland Processing Manual 5:“Officers should be sensitive where the spouse (or other family member) … leaves an abusive situation and, as a result, does not have an approved sponsorship. Officers should consider the following factors:

• Information indicating there was abuse such as police incident reports, charges or conviction, reports from shelters for abused women, medical reports, etc.;

• Whether there is a degree of establishment in Canada;• The hardship that would result if the applicant had to leave Canada;• The laws, customs and culture in the applicant’s country of origin;• The support of relatives and friends in the applicant’s home country; and • Whether the applicant has children in Canada or/and is pregnant.”

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What To Do If Immigration Status At Risk

Facing Deportation and Child Involved• A Canadian-born child cannot be deported

Mother/significant adult can make an application for permanent residence, on Humanitarian and Compassionate (H&C) grounds

H&C applications must take into account the “best interests of the child”

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What To Do If Immigration Status At Risk

Other Considerations• a person seeking sponsorship could consider:

waiting to apply until relationship is more than 2 years

waiting to apply until after a child of the couple is born

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Presenters

Tamar WitelsonLegal Director, METRAC

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Raoul BoulakiaRefugee and Immigration Lawyer, Toronto,

Ontario

Additional Resources

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Resources (Domestic Violence and Abuse)For information, if your partner is abusive or violent:

• Assaulted Women’s Helpline www.awhl.org 24 hours/7 days; multiple languages Toll-free: 1-866-863-0511;TTY: 1-866-863-7868

• Victim Services Directorywww.justice.gc.ca/eng/pi/pcvi-cpcv/vsd-rsv/index.html

• Abuse is Wrong in Any Language (available in 16 languages and Braille)www.justice.gc.ca/eng/pi/fv-vf/plei-vij/index.html

• FLEW (Family Law Education for Women) Resources page www.onefamilylaw.ca/en/resources/

• FODF (Femmes Ontariennes et Droit de la Familles)www.undroitdefamille.ca/

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Resources (Domestic Violence and Abuse)For information, if your partner is abusive or violent:

• Legal Aid Ontario www.legalaid.on.ca/en/getting/type_domesticviolence.asp Available to every immigration status

Free telephone interpretation services for languages other than English and French

Toll-free: 1-800-668-8258; TTY: 1-866-641-8867

• Family Violence Authorization Program (Legal Aid Ontario) Free 2-hour emergency meeting with a lawyer

Offered through some shelters and community legal clinics

Toll-free: 1-800-668-8258; TTY: 1-866-641-886713/12/2012 40

Resources (Immigration)Find a community legal clinic near youwww.legalaid.on.ca/en/contact/contact.asp?type=cl

Community & Specialty Legal Clinics www.legalaid.on.ca/en/contact/contact.asp?type=cl Centre for Spanish Speaking Peoples Metro Toronto Chinese and Southeast Asian Legal Clinic Refugee and Immigrants Information Centre Toronto South Asian Legal Clinic of Ontario

FCJ Refugee Centre www.fcjrefugeecentre.org/ 416-469-9754

Canadian Association of Refugee Lawyers

www.refugeelawyersgroup.ca/

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Resources (Immigration)

Refugee Law Office www.legalaid.on.ca/en/getting/type_immigration.asp 416-977-8111

Refugee Lawyers Association of Ontario www.rlaontario.com/

Canadian Council for Refugeeswww.ccrweb.ca/en/home 514-277-7223 Directory of immigrant and refugee serving organizations in your area

www.ccrweb.ca/en/links

Settlement.org www.settlement.org/index.asp Information and answers on settling in Ontario

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Resources (Immigration)

Citizenship and Immigration Canada www.cic.gc.ca/english/index.asp Call Centre Toll-free: 1-888-242‑2100 TTY: 1-888-576‑8502 More Contacts: www.cic.gc.ca/english/contacts/index.asp

Ministry of Citizenship and Immigration (Ontario) www.citizenship.gov.on.ca/ Find information about citizenship and immigration in Ontario General Inquiry: (416) 327-2422 Toll-free: 1-800-267-7329 TTY: 1-800-555-5559

211 Canada.ca www.211canada.ca/ Find available immigrant and refugee serving organizations in your area

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Resources (Family) Assaulted Women’s Helpline www.awhl.org Toll-free: 1-866-863-0511; TTY: 1.866.863.7868 Toronto: 416-863-0511

Legal Aid Ontario www.legalaid.on.ca/en/getting/default.asp Toll-free: 1-800-668-8258; TTY: 1-866-641-8867 Toronto: 416-979-1446 (accepts collect calls)

Family Law Information Program (FLIP) www.legalaid.on.ca/en/getting/flip.asp

Family Law Information Centres (FLICs)

www.legalaid.on.ca/en/getting/type_family.asp

Family Law Services Centres (FLSCs)www.legalaid.on.ca/en/contact/contact.asp?type=flsc

Ontario Women’s Justice Network (OWJN) www.owjn.org

FLEW (Family Law Education for Women) www.onefamilylaw.ca/en/resources/

FODF (Femmes Ontariennes et Droit de la Familles) www.undroitdefamille.ca/

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Resources (General)Law Society of Upper Canada Lawyer Referral Servicewww.lsuc.on.ca/with.aspx?id=697 Toll-free: 1-800-268-8326 Toronto: 416-947-3330 TTY: 416-644-4886

Justice Netwww.justicenet.ca/directory/search/ Reduced fee lawyers for low income people not eligible for Legal Aid

Toolkit for a good Client-Lawyer Relationshipschliferclinic.com/vars/legal/pblo/toolkit.htm  Barbra Schlifer Commemorative Clinic

Ministry of the Attorney General www.attorneygeneral.jus.gov.on.ca/english/ Toll free: 1-800-518-7901 TTY: 1-877-425-0575

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