The sponsor did not declare his common-law partner in his PR application

[Janix]

Hi everyone,

I am posting this question on my brother's behalf.
Here is his situation:

1. May 2021 to Nov 2023, he lived together with his girlfriend in the Philippines.
2. Dec 2022, my brother applied for PR as "Single"
3. Nov 2023, he flew to Canada as a temporary resident and got his PR status in 2024.
3. He married his girlfriend in 2025, and he sponsored his girlfriend (now his wife) to come and live with him here in Canada.
4. Now they got a letter from IRCC saying that his wife is not eligible for Spouse sponsorship. Because he did not declare his wife as common-law spouse in his 2022 PR application.

The immigration officer is asking for proof that the sponsor had declared his wife as a family member in his PR application.
My brother did a D.I.Y spouse sponsorship application and got confused about his marital status.
This is because in the Philippines, live-in partners are not considered spouses legally; Since they are not yet married during his PR application, he thinks he is still "Single".

What can he do about this?
Any advice is much appreciated.

Thank you in advance!

 

[anthonyjr]

They need to consult a lawyer.
As a person who is actively researching about this, I see if you guys were really living as common-law, then there is very tiny chance to get over this. Because that is the law. Even though talking to a lawyer is the only hope now, but still no one is able to change the law. The PR holder (sponsor) may also face a risk of his PR being revoked for misrepresentation purposes.

Me and my wife are having the same problem but we were in a different situation (we had a very complicated relationship with most of the time separated and the relationship broken down, only live under same roof to take care of the child, sometimes my wife lived in another house) and we had to base on those fact to against IRCC's view on our "conjugal living" period.

 

[Buletruck]

What can he do about this?

Lawyer up.
Despite what the laws in the Philippines states, IRCC sees him as being common law. Because he didn't declare her at the time of his application, he can never sponsor her in his current situation. She is not considered "family".

 

[canuck78]

What can he do about this?

Lawyer up.
Despite what the laws in the Philippines states, IRCC sees him as being common law. Because he didn't declare her at the time of his application, he can never sponsor her in his current situation. She is not considered "family".

Think you mean she has been considered his dependent family member since May2022 which is the problem.

 

[canuck78]

Hi everyone,

I am posting this question on my brother's behalf.
Here is his situation:

1. May 2021 to Nov 2023, he lived together with his girlfriend in the Philippines.
2. Dec 2022, my brother applied for PR as "Single"
3. Nov 2023, he flew to Canada as a temporary resident and got his PR status in 2024.
3. He married his girlfriend in 2025, and he sponsored his girlfriend (now his wife) to come and live with him here in Canada.
4. Now they got a letter from IRCC saying that his wife is not eligible for Spouse sponsorship. Because he did not declare his wife as common-law spouse in his 2022 PR application.

The immigration officer is asking for proof that the sponsor had declared his wife as a family member in his PR application.
My brother did a D.I.Y spouse sponsorship application and got confused about his marital status.
This is because in the Philippines, live-in partners are not considered spouses legally; Since they are not yet married during his PR application, he thinks he is still "Single".

What can he do about this?
Any advice is much appreciated.

Thank you in advance!

Likely the only option is either she qualifies for PR on her own or he relinquishes his PR status and tries to qualify again. He could then reapply with her as his spouse. There would still be a risk that IRCC could claim he misrepresented his marital status in the past. Typically hasn’t been an issue if people relinquished and applied again but IRCC enforcement is unpredictable these days and much more strict. It is also much harder to secure PR these days.

 

[armoured]

They need to consult a lawyer.
As a person who is actively researching about this, I see if you guys were really living as common-law, then there is very tiny chance to get over this. Because that is the law. Even though talking to a lawyer is the only hope now, but still no one is able to change the law. The PR holder (sponsor) may also face a risk of his PR being revoked for misrepresentation purposes.

Two comments:
-the main takeaway is that the chances are VERY low of OP being able to sponsor his spouse / respond to the PFL with information that will NOT result in IRCC deciding this is an undeclared common law spouse and therefore not eligible to be sponsored.

Will a lawyer be able to help? Maybe not (I'd even say probably not, in this specific case). But it's also probably the only chance. (An individual who did not bother to get informed enough to understand or simply misunderstood the requirements is NOT competent to deal with it, in my opinion).

Claiming "I didn't know" I'm sorry PH is different etc has low chances of working - IMO - but possibly non-zero. (Not responding to the PFL is definitely zero)

-I am not personally aware of any cases - at all - where the PR-sponsor has had the status revoked for misrepresentation. I may have missed some, perhaps those who have had this happen have not posted about their experiences, or there could be cases with other significant factors (eg other misrepresentation) that led to it.

But I think we can fairly say that in the vast majority of cases, IRCC seems to think that a lifetime ban on sponsoring one's spouse is sufficiently harsh. (They may even think it's excessive, but the regs don't leave them room to decide otherwise if the facts fit the definitions)

 

[Janix]

Thank you for all the comments. This seems to be a hopeless case.
We will consult a lawyer to manage the risk properly.

 

[anthonyjr]

Two comments:
-the main takeaway is that the chances are VERY low of OP being able to sponsor his spouse / respond to the PFL with information that will NOT result in IRCC deciding this is an undeclared common law spouse and therefore not eligible to be sponsored.

Will a lawyer be able to help? Maybe not (I'd even say probably not, in this specific case). But it's also probably the only chance. (An individual who did not bother to get informed enough to understand or simply misunderstood the requirements is NOT competent to deal with it, in my opinion).

Claiming "I didn't know" I'm sorry PH is different etc has low chances of working - IMO - but possibly non-zero. (Not responding to the PFL is definitely zero)

-I am not personally aware of any cases - at all - where the PR-sponsor has had the status revoked for misrepresentation. I may have missed some, perhaps those who have had this happen have not posted about their experiences, or there could be cases with other significant factors (eg other misrepresentation) that led to it.

But I think we can fairly say that in the vast majority of cases, IRCC seems to think that a lifetime ban on sponsoring one's spouse is sufficiently harsh. (They may even think it's excessive, but the regs don't leave them room to decide otherwise if the facts fit the definitions)

I've spent hours to read many cases about this, as I'm having same problem. Most of them don't share on the internet, I had to dig in cases with Immigration Appeal Division. And I see only a few cases was approved by the IAD, with the only kinda same reason: They can prove that their relationship was not common-law. Of course some other factors like H&C, hardships if not approved govern sometimes (very rare), but generally they have to prove that the common-law relationship (that IRCC recognized) didn't exist technically and lawfully: Time living together (not technically enough 12 consecutive months), same house (building) but different rooms, etc.

 

[Janix]

I've spent hours to read many cases about this, as I'm having same problem. Most of them don't share on the internet, I had to dig in cases with Immigration Appeal Division. And I see only a few cases was approved by the IAD, with the only kinda same reason: They can prove that their relationship was not common-law. Of course some other factors like H&C, hardships if not approved govern sometimes (very rare), but generally they have to prove that the common-law relationship (that IRCC recognized) didn't exist technically and lawfully: Time living together (not technically enough 12 consecutive months), same house (building) but different rooms, etc.

Thank you for sharing this.
Is it true that once you have been refused for this reason, the sponsor can no longer sponsor their wife?

 

[armoured]

Thank you for sharing this.
Is it true that once you have been refused for this reason, the sponsor can no longer sponsor their wife?

Yes.

 

[armoured]

I've spent hours to read many cases about this, as I'm having same problem. Most of them don't share on the internet, I had to dig in cases with Immigration Appeal Division. And I see only a few cases was approved by the IAD, with the only kinda same reason: They can prove that their relationship was not common-law. Of course some other factors like H&C, hardships if not approved govern sometimes (very rare), but generally they have to prove that the common-law relationship (that IRCC recognized) didn't exist technically and lawfully: Time living together (not technically enough 12 consecutive months), same house (building) but different rooms, etc.

This is a good point. You're quite right that there are factual issues, which can be proven/disproven/disputed - such as whether they lived together (dates/timeframes/etc), or whether the cohabitation amounted to cohabitation as a couple. (I'm paraphrasing for simplicity.) And yes, differences of opinion can sometimes be on such issues as 'were they a couple the whole time', did residing in shared residences (with other people present) mean the same thing, etc. Some of this is arguably subjective (what counts as cohabitation as a couple), some technical (there was one case here of a couple whose dates were eg May 15 year 1 to May 14 year 2 - which they thought was less than a year, but of course it's exactly a year, in the same way that Jan 1 to Dec 31 is exactly a year).

So if there's a factual case, make it. And some will, ahem, present their cases in the best possible light - and may even succeed. (They may get asked for factual documentary evidence ot support and not pass that bar). And they may be able to dispute and possibly get it to court, etc. But not cheap and expensive.

But the key is what you wrote above: you found a 'few cases' where the factual issues raised to counter IRCC's interpretation prevailed, and 'very rare' was overcoming that finding on some 'leniency' grounds.

(BTW: I personally think the approach by IRCC is too harsh and unnecessary and sometimes people genuinely did not udnerstand, esp vis a vis common law unions. A five or seven year ban on being sponsored would - for example - be sufficient, IMO, combined with some restrictions like spouse no longer being exempted from the medical (excessive demand) tests and perhaps financial. But what I think about it counts for precisely bupkus)

 

[anthonyjr]

This is a good point. You're quite right that there are factual issues, which can be proven/disproven/disputed - such as whether they lived together (dates/timeframes/etc), or whether the cohabitation amounted to cohabitation as a couple. (I'm paraphrasing for simplicity.) And yes, differences of opinion can sometimes be on such issues as 'were they a couple the whole time', did residing in shared residences (with other people present) mean the same thing, etc. Some of this is arguably subjective (what counts as cohabitation as a couple), some technical (there was one case here of a couple whose dates were eg May 15 year 1 to May 14 year 2 - which they thought was less than a year, but of course it's exactly a year, in the same way that Jan 1 to Dec 31 is exactly a year).

So if there's a factual case, make it. And some will, ahem, present their cases in the best possible light - and may even succeed. (They may get asked for factual documentary evidence ot support and not pass that bar). And they may be able to dispute and possibly get it to court, etc. But not cheap and expensive.

But the key is what you wrote above: you found a 'few cases' where the factual issues raised to counter IRCC's interpretation prevailed, and 'very rare' was overcoming that finding on some 'leniency' grounds.

(BTW: I personally think the approach by IRCC is too harsh and unnecessary and sometimes people genuinely did not udnerstand, esp vis a vis common law unions. A five or seven year ban on being sponsored would - for example - be sufficient, IMO, combined with some restrictions like spouse no longer being exempted from the medical (excessive demand) tests and perhaps financial. But what I think about it counts for precisely bupkus)

Thank you for your kind words about this matter. Although our family is facing this problem, I do believe this law/regulation is fair and I do believe that it protected and is protecting Canada and Canadians.
Lots of people tried to dig the loop hole, they thought they only need 1 person to get PR so they can sponsor everyone else later on without declaring for whatever reason (Maybe avoiding complex situation, or even concealing an (possible) inadmissible spouse, etc). As I read somewhere on Reddit, what the IRCC officers hate the most is misrepresentation. Deception and dishonesty are the worst things in this situation they have been and continue to be the ones protecting us from such deceit and fraud. Some said they even take this more harsh compare to applicant with criminals.

However is there any room to win this? I do believe there is.

The definition of the term "common-law" is very fluid, and it didn't even exist in many cultures. Even in Canadian law and act, there is no specific definition for that. It lead to "conjugal relationship".

“common law partner” means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year;

But they don't have a specific definition for the "conjugal relationship" as well. Here is what the law case said:

• The Immigration and Refugee Protection Act and the Immigration Refugee Protection Regulations do not define what a conjugal relationship is; however, a conjugal relationship is ordinarily defined and interpreted in the case law as referring to a “marriage-like” relationship. In an immigration context, a conjugal relationship is recognized as: “one of some permanence, where individuals are interdependent – financially, socially, emotionally, and physically – where they share household and related responsibilities, and where they have made a serious commitment to one another.” There are established criteria in the jurisprudence that assist in determining whether a conjugal relationship exists:

• Shelter;
• Sexual and personal behaviour;
• Services;
• Social activities;
• Economic support;
• Children; and,
• Societal perception.

So when there is an appeal on this matter, the Panel, the Judge would take careful looks at all of the aspect above. Once there are "several" or "many" things involved, there is still a chance (even tiny). Several appeals were approved based on facts. Here is one example: Montoya v Canada. They lived together for years (yes, remember this, they lived together for years), in truly exclusive and sexual relationship, lots of people know that, however, still the Panel didn't believe their relationship was common-law. Bingo!

a. Although the couple had an exclusive and sexual relationship during the relevant time period, they did not cohabit in one dwelling with combined affairs and a combined household. They did not have joint bank accounts, own or lease property together, or manage other household affairs in a joint fashion. Rather, each of them lived at a brother’s residence, or a parents’ residence, with cohabitation at those locations that was intermittent, not continuous and not in the form of a joint household as a couple. Their testimony about those circumstances is substantially consistent throughout the process and supported by the address information offered in the application forms.

b. On balance taking into consideration all of the circumstances, the cohabitation as assessed from the available evidence is slightly more consistent with intermittent cohabitation as a boyfriend and girlfriend from time to time than as a continuous cohabitation interrupted by temporary and short separations. I acknowledge that the intermittent cohabitation was characterized by the applicant as a common-law arrangement but her descriptions reflect the fluid nature and subjective use of the concept of common-law as well as the context for which the information was provided. Furthermore, as previously indicated, the applicant’s personal characterization would not be accepted as determinative for the purposes of inclusion in the family class as a common-law spouse and is also not determinative for exclusion pursuant to paragraph 117(9)(d). In addition, the appellant disclosed the applicant by name as a girlfriend, during his own application process.

c. I acknowledge that there is some evidence that is more suggestive of continuous cohabitation than not, such as the perception by family and friends that they were a couple, the length of the relationship and that it was continuous with ongoing future plans together. A significant piece of evidence is that the appellant applied for the applicant to have health care coverage through his employer as a common-law spouse in early 2007. While this is an indicator of common-law status, the appellant credibly acknowledged that it was a pragmatic effort in circumstances where he was concerned about health benefits for a brief period of unemployment for the applicant. I find that his representation of the applicant as a common-law spouse for that limited purpose is neither an indication of common-law status nor a situation that undermines the appellant’s overall credibility. Rather, he expressed genuine discomfort and remorse for what was a pragmatic course of action at that time.

One of important keys in this case is they were honest and their testimony was consistent during the application, the interview and the hearing. I'm not judging they lied or not. Nobody cares about it, but they successfully proved based on facts/laws/mix facts and laws that their cohabitation was not enough to trigger ths common-law status and, yes, they were not common-law.

Lastly, a good lawyer is crucial. I tried to contact the lawyer, who helped the case above, to consult him about my case, but he's retired.

 

[armoured]

So when there is an appeal on this matter, the Panel, the Judge would take careful looks at all of the aspect above. Once there are "several" or "many" things involved, there is still a chance (even tiny). Several appeals were approved based on facts. Here is one example: Montoya v Canada. They lived together for years (yes, remember this, they lived together for years), in truly exclusive and sexual relationship, lots of people know that, however, still the Panel didn't believe their relationship was common-law. Bingo!

One of important keys in this case is they were honest and their testimony was consistent during the application, the interview and the hearing. I'm not judging they lied or not. Nobody cares about it, but they successfully proved based on facts/laws/mix facts and laws that their cohabitation was not enough to trigger ths common-law status and, yes, they were not common-law.

So this is complicated and I'm not a lawyer; but I would still very, very strongly caution anyone from drawing conclusions on how likely this is to be useful - and getting optimistic.

Two main things:
-IRB decisions do not create strict rules or 'precedent' which would bind other board members or courts to agree the case with similar (i.e. identical) facts the same way.
-In this case, it's particularly subjective - the summary and details are admitted (by the author) to support a decision either way.

In my opinion, there's another factor that - reading between the lines - was probably decisive, and a VERY peculiar (unusual) factual situation. Specifically, the sponsor had actually declared the applicant as 'girlfriend' on his own PR application years previous, and it was an IRCC officer who (seemingly) concluded that it did not constitute a common-law relationship and the girlfriend did not need to be examined.

And then years later a different iRCC officer decided it did constitute a common law relationship. (Etc)

Point being: I read between the lines here that the author of the decision chose to lean VERY heavily on the subjective side in favour of the sponsor, since the sponsor had seemingly provided all the info needed, and then it was effectively a lack of consistency within IRCC on the same case.

Correcting, as it were, a 'wrong' effected by IRCC itself.

Now note: the author (judge? board member? don't know the official title) is not empowered to overturn the decision by saying this change was unreasonable - could only hew to the meaning of the law and regs. And chose to lean heavily on one side - the facts - to correct IRCC's original error.

I think that would seem overall fair to most of us (esp if it had been possible to just say "IRCC, you made the original decision, you shouldn't overturn that in this case without very serious reasons.")

But likewise, I think anyone reading this should realize that without that mitigating background, possibly very unlikely the facts would've been interpreted so leniently.

And indeed, in the other case, the distinction found was one of 'credibility.' Perhaps - I think it's this other fact base as well, that the one sponsor had admitted the situation very clearly and credibly _and IRCC decided it wasn't common law._ (And then changed their minds later)

 

[anthonyjr]

Indeed. It is complicated and the opportunity here is very, very slim. We would need a very, very experienced lawyer to have a look at cases like this.
What I'm trying to say here is there is only way, which is to prove the definition of a common-law relationship wasn't met. Sometimes, people thing it was common-law, but technically it was not. That is the reason why many many common-law applications were refused. And now, let's imaging, set the "undeclare stuff" aside, if they apply as common-law (instead of married), will the application be approved?

 

[armoured]

Sometimes, people thing it was common-law, but technically it was not. That is the reason why many many common-law applications were refused. And now, let's imaging, set the "undeclare stuff" aside, if they apply as common-law (instead of married), will the application be approved?

Yes, it is unfortunate that there is this asymmetry - there is no guarantee that IRCC will accept as 'common law' for sponsorship, but that doesn't mean that they would get identical treatment if undeclared (when IRCC can much later decide it in fact was common law- and redress is expensive and very lengthy).

IRCC should also be far more clear about how important and write in BIG BOLD LETTERS multiple times: an undeclared spouse can NEVER be sponsored, and if you have resided together, that WILL count as common law. (I'm not hesitant about saying 'will' even though it's actually 'may' - best exaggerate to make it as clear as possible.)

But unfortunately IRCC doesn't make it as clear as they should (in my opinion).

That's why the ONLY responsible answer for those with 'partners' of any kind with whom they have resided for any period of time - and whom there may be any chance of wanting to sponsor them in future - is to declare that person as a common law partner (and put as unaccompanied if the intent is not to sponsor them now).

DECLARE YOUR PARTNER IF ANY DOUBT WHATSOEVER. But not everyone will do this because it may affect their points in express entry apps.

Note that most cases of common law spouses who cannot be approved due to not meeting 'common law' criteria are easily fixed - couples can simply get married. (Known exceptions i.e. same sex or countries where divorce not feasible are addressed through conjugal partner class).

So again: declare your girlfriend/boyfriend/partner if you have cohabited at all. What you will lose if you don't (potentially) is the possibility of ever sponsoring them in future. Forever.

Anyway: good luck in your case. I'm repeating all this as it is probably one of the single most common issues that comes up barring sponsorship, and it's largely avoidable - and people assume it can be fixed.