Muns59 said:
Hi . Since November 2014 my appeal to the IAD has been received regarding failure to meet ro obligation . I have appealed under hr grounds and have been in canada since waiting for my appeal . I didn't know it would have ever taken so long to process .
I held off on getting married because my fiancée is not Canadian and I don't want to add to factors against me . I also was of the impression if I am under appeal I cannot sponsor a spouse . I have been trying very hard to find this rule but cannot seem to . Does anyone know of this or where can I find the information?
Also when sponsoring a spouse does one have to have a certain income ? Or if he doesn't what would be an appropriate savings requirement ?
Thanks for the help in advance
Not eligible to Sponsor Partner (spouse):
The official rule specifying eligibility requirements for sponsors is Regulation 133 in the IRPA Regulations; see http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/page-25.html#docCont
In particular, Regulation 133(1)(c) states:
"A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor . . . (c) is not subject to a removal order . . . "
(Note: in addition to the prescribed lack of eligibility if issued a removal order, a sponsorship application is suspended pending the final determination of proceedings based on a 44(1) Inadmissibility Report even if a Departure or Removal Order has not yet been issued. See Regulation 136(1)(b) IRPA Regulations.)
This is reflected in both the basic guide and the complete guide for sponsorship of partner applications, which respectively state that persons
"under a removal order" are not eligible to sponsor.
For the Basic Guide, see http://www.cic.gc.ca/english/information/applications/guides/5525ETOC.asp
For the Complete Guide, see http://www.cic.gc.ca/english/information/applications/guides/5289ETOC.asp
If you are appealing the denial of an application for a PR Travel Document, I am not sure whether that is deemed to be a "removal order," or a determination of status (not merely a Residency Determination even if it is based on a Residency Determination). Either way, if you are appealing the denial of an application for a PR TD that means you are either under a removal order or you do not have status in Canada to sponsor (even though you are allowed to remain in Canada pending the outcome of the appeal) unless and until you win the appeal and it is determined you do have valid PR status.
In particular, do not be misled by the indefinite language (person
"may" not be able to sponsor) used in stating this rule in the Complete Guide (in contrast, the language used in the Basic Guide is definitive, stating that a person under a removal order
"cannot" sponsor a partner). Regulation 133(1)(c) is definitive. (Obviously, if you win the appeal, you would no longer be under a removal order, and if you then meet the other eligibility requirements you will be eligible to sponsor.)
(Note: removal orders can be variously labeled, including "Removal Order" or "Departure Order" or otherwise; the Regulation refers to a "removal" order, descriptively, and thus it is not about the label on the order, and thus, for example, an order labeled "Departure Order" or otherwise, which is an order that will effect the loss of PR status if and when it becomes enforceable, is a removal order.)
Timeline for appeal of Removal Order or PR TD denial:
The processing timeline for the appeal of a removal order or PR TD denial varies widely, and two years or more is not uncommon.
For many if not most of those appealing a removal order, the long processing time works to the PR's advantage. While the time in Canada after a 44(1) Report, Departure Order, or PR TD denial will not be credited toward meeting PR Residency Obligation itself, it can be a highly influential, positive factor in the H&C assessment. How much so
depends on many factors, and in itself is rarely sufficient to overcome a substantial breach of the PR RO. But particularly for
close-call cases, the extent to which the PR is fully settled and established in Canada, including during the period of time the appeal is pending, can be a factor tipping the scales one way or the other, the more settled and established the PR has become, the more positive weight this has.
Obviously, the longer the person has actually been in Canada (even though there is no credit toward days in Canada) the more that shows establishment in Canada, especially for someone who is employed in Canada during this time.
In this regard, extrapolating a bit from your reported circumstances and query, it warrants noting that full time employment in Canada while the appeal is pending is, perhaps, a key evidentiary element indicating the extent to which you are settled in Canada. Living on savings not so much, not nearly so much.
H&C cases are almost always tricky. It is best if you have professional assistance in prosecuting the appeal. I mean a
lawyer, a licensed and reputable immigration lawyer, not a consultant.
