Research Memo

-by Shabih Fatima

Abstract

Below discussed is a research memo on the topic whether a person can apply for spousal
sponsorship application and concurrent work permit if they are out of status inside Canada. It
contains some imaginary facts which are discussed under the appropriate laws of Canada.

Issue at hand:

Whether a person can apply for spousal sponsorship application and concurrent work permit if
they are out of status inside Canada?

Law:

Spouses and common-law partners of Canadians can get an open work permit while their inland
sponsorship application for permanent residence is being processed.

Immigration, Refugees and Citizenship Canada (IRCC) aims to process applications submitted

through the Spousal Sponsorship program within 12 months. The Open Work Permit
Program can allow foreign spouses to work while waiting on a decision from IRCC. It can help
to mitigate the economic and emotional hardships of a long application process by removing the
need for a spouse to choose between living with their partner and being able to work.

An open work permit is neither employer nor job-specific and it allows the holder to work for
almost any Canadian employer, without first having to get a confirmed offer of employment.
These work permits are typically valid for two years or to the date of the applicant’s passport
expiry date, whichever comes first.

Section 25 of Immigration and Refugees Protection Act (S.C. 2001, c. 27):

Humanitarian and compassionate considerations — request of foreign national

25  (1) Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada
who applies for permanent resident status and who is inadmissible — other than under section
34, 35 or 37 — or who does not meet the requirements of this Act, and may, on request of a
foreign national outside Canada — other than a foreign national who is inadmissible under
section 34, 35 or 37 — who applies for a permanent resident visa, examine the circumstances
concerning the foreign national and may grant the foreign national permanent resident status or
an exemption from any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations relating to the
foreign national, taking into account the best interests of a child directly affected.

Answer:

Therefore, yes, a partner who is being sponsored by their spouse can apply for concurrent work
permit if they are out of status inside Canada. However, they should be eligible for work permit
under Public Policy of 2005 that exempted certain classes of people from mandatorily having a
temporary resident status at the time of application.

Facts of the Case:

Mr. Kahlil Gibran, a citizen of Canada is married to a citizen of Pakistan, Mrs. Fatima Gibran.
Mrs. Gibran visited her husband in Canada with a temporary resident visa for a period of 6
months. However, she stayed for a longer period and has plans to stay with her husband forever
in Canada. Subsequently, her visa got expired in the meantime before she could apply for spousal
sponsorship and work permit and she is now not a valid temporary resident of Canada.

Application of law in the present case:

Mrs. Fatima Gibran can apply for the status of a permanent resident under the Spouse or Common-Law
Partner in Canada Class program of the Government of Canada; however, she will have to satisfy the
conditions of the 2005 Public Policy. She may at the same time apply for an Open Work Permit along
with the application for permanent residency.

Even if someone does not have status in Canada, they are still able to be sponsored under the inland
sponsorship process. However conditions under Section 25 of the Immigration and Refugees Protection
Act are to be met by the applicant.

Once the inland sponsorship application is received by IRCC, the applicant cannot be asked to leave
Canada simply because they have no status in Canada. A period of 12 months is at hand of the IRCC to
examine the application and the spouse can work during that time period. This does not apply to
overseas (family class) sponsorship applications filed while the applicant is in Canada.

Conclusion

Mrs. Gibran cam therefore apply for the work permit along side the permanent residency even if she has
overstayed her visa and take the benefit of Section 25 and the Public Policy 2005. She can continue to
work until the IRCC takes a decision over the application filed by her for the same.