I want to begin this piece by stating that in a very purposeful way, I have not spent a significant time reviewing the different proposals to the problem I will be discussing today. I have been in touch with numerous stakeholder groups who have pointed me at different ideas. I am sure if I were to read those ideas I would agree many of them, but I wanted to first tackle this from my own perspective and my own experiences and understanding of the law/practice. There are certainly academic journals to be cited, research to be relied upon, but this piece is about the nitty gritty. Solutions I feel could be implemented to make a broken process better at this ever-so crucial time.
The problem we are talking about is the growing challenge being posted by outlandish (read: extreme) delays in processing outside of Canada (what I will refer to as “outland” or “outside Canada”) Sponsorships and how families are being separated because they are unable to obtain temporary resident visas and other permits to temporarily reunite with their family members pending processing. This processing is in many cases taking years.
This challenge has been exacerbated by COVID, where precarious work and travel options make leaving Canada impossible for the Sponsor. In this problem scenario most Sponsors are residing in Canada (as permanent residents or citizens) and their partners (common-law spouses, conjugal, and married) are overseas. Because of COVID, closure of visa offices, backlogs of biometrics, and general reticence to processing paper-based applications abroad – families are now at a breaking point.
For full disclosure, I was contacted by one advocacy group (of about 15 families) and told there were many more. Many of my own clients are in the same boat right now. This has prompted me to write on an issue that frankly we’re not talking enough about – a major consequence of the pandemic.
I am also someone with personal lived experience that combined with my professional experiences, gives me some authority to share. I was able to get a Temporary Resident Visa (TRV), then a study permit for my spouse (then girlfriend/fiancee), eventually choosing to apply outside Canada while she was residing with me in Canada – often times the best scenario, but unobtainable for so many. I am very cognizant that this was also a matter of luck – had my partner been from a different country – the Philippines, India, Nigeria, Iraq – just to name a few, I would likely have had to either marry abroad and have several years of long-distance.
Because of these overseas delays, I have also seen a great number of families choose to go inland – forgoing appeal rights, for the benefit of implied status provided by the Open Work Permit. Effective overseas processing has been a staple of Canadian immigration, yet due to delays – particularly from visa offices located in Global South/Middle Eastern/African countries – we’ve created an overburden on visa offices to assess complex and unnecessary visitor visa applications overseas and inland applications here here in Canada.
Which leads to my first idea for how we can fix things…
Idea 1: Seek to Reduce/Eliminate the Discrepancy Between Visa Office Processing Times Based on Country of Application/Origin
It used to take less time in a majority of a visa offices to obtain approval in an outland sponsorship than it did inside Canada with an inland application. In order for the overseas system to function effectively, as the Government would like it, this has to return to being the case in the majority of overseas visa offices.
Furthermore, in the past it would take an American citizen 4 months to obtain an approval and land but take applicants from Africa several years. Given the move to virtual processing, and as my colleague Steven Meurrens is pushing for – a move away from paper-based assessment to online assessment (see idea 5 below), perhaps files do not need to be referred to local visa offices unless there is a significant flag requiring local expertise. Having more processing of sponsorship across visa offices (by capacity) can serve to speed things up and reduce processing times.
If overseas sponsorship processing can be reduced to 6 months in 80% of the cases like an economic immigration file used to be in the years before, you will see a drop in the number of applicants seeking to first come to Canada to apply inland, given a Spousal Open Work Permit can take about the same amount of time to receive and processing times to be at least a year to often a year and a half.
There’s a certain point of time, where even the generally discriminatory process of visa processing becomes too discriminatory. If any Government program inside Canada were to operate where individuals from certain countries or within certain subsections of the population were being processed at a much slower rater than individuals from another region, there would be human rights complaints. I do understand the need to vet for security, misrepresentation, etc. – but centralizing processing at least ensures we are not sorting entire populations through these processes.
I would call on the Government to try and centralize processing and be transparent with data on such things DNA requests, interview requests, security check backgrounds, to ensure that it is not disproportionately applied to Brown and Black folks, which all current anecdotal evidence suggests it is. This would greatly ease the burden of Applicants and also alleviate the pressure on having to apply for TRVs to reunite.
Idea 2: Create a Designated Category of Spouses that Are Able to Obtain TRVs Upon Acknowledgment of Receipt and Allow Most Spouses to Reunite After First-Stage Approval Based on Dual Intention;
While I understand IRCC’s interest in vetting genuineness of relationships at an early stage, it is clear that there are relationship involving Canadian children currently in Canada and common-law partnerships/marriages of a significant long duration 2+ years) where a TRV should be granted immediately, not withstanding R. 183(1) and (2) and the need to leave Canada at the end of their authorized stay. Dual intention should be made more clear to Applicants. A standard form could be generated for Applicants to provide their plans to leave Canada in the event of the refusal of their sponsorship application and loss of status. My suggestion is that this TRV is issued within acknowledgment of receipt which should take 2 months rather than the current 4-5 (note: COVID has pushed this even further).
For other couples, a TRV should become available upon first-stage approval (finding that the relationship is genuine, which ideally happens at the 4-5 month mark). However, IRCC could certainly introduce measures such as the need to convert the application into an office with longer processing period inside Canada IF and only if, they are able to keep shorter processing times overseas as an incentive to await full processing there. Again, it is my perspective that a family class sponsorship can be done in 6 months, if an economic class application be done in the same time and an applicant from the United States could take four months.
Finally, IRCC could issue shorter term duration visitor visas, tied to the processing of the sponsorship file. Should the sponsorship file breakdown, the Applicant would then lose status or have 90-days to restore themselves. This 90-day restoration period could be accompanied by the options available for Temporary Resident Permits (TRPs) for family class members who did face abuse leading to the end of their relationship.
Idea 3: Eliminate Primary Purpose Assessment
One of the reasons applications take an increasing amount of time to process is because of R.4s [Regulation 4 of the Immigration and Refugee Protection Regulations] specifically on the second primary purpose assessment.
Once a relationship is genuine, from my perspective, it does not need to matter how much immigration is or is not the primary or a secondary/tertiary purpose. If there are issues with intent, these will invariably affect the genuineness of the marriage and possibly be caught through misrepresentation. Stricter misrepresentation penalties (i.e. life-time bans instead of five-year bans) can themselves serve as disincentives for marriages of convenience. The current tests blurs and complicates the reality that a genuine marriage may only be able to sustain itself through immigration that reunited a couple.
Clarifying the test so the focus can be on genuineness can clear up processing and reduce the number of interviews needed. This would help shorten processing times and reduce the need to make TRV applications for those couples who want the quickest processing and landing as permanent residents.
Idea 4: Have Concurrent Processing of Medical/Security at the Front End – a Return to the Old Ways;
While IRCC has in recent years moved the medical exam from the front end to the back end, perhaps having this request at the beginning alongside the biometric request and the police certificates could allow better vetting of the majority of clients that do not pose security or inadmissibility risks. Those clients who do could be informed earlier on that they are facing further processing and then make required arrangements to possibly relocate.
The way the current process works with delays at certain visa offices really puts the 90% of non-problematic files in the same queue and position as the 10% that may create challenges, something that has net negative effects for family reunification.
Idea 5: Move Sponsorships Online and Utilize Tech Solutions to Make TRVs Easier to Apply For
One of the major challenges with sponsorships is that the entire process is paper-based, where as the majority of IRCC processes have moved online. As such, things such as original signatures and the mailing of documents between spouses living across the world from each other, add unnecessary cost, time, and stress to the sponsorship process. There should be ways to make the entire sponsorship process (like the Express Entry process) accessible online to those that are able to navigate online forms. For Outside Canada applicants, the online system should allow for a TRV application to be generated right alongside an initial Sponsorship. This application can be held in abeyance, but tied to the Sponsorship in the same way an open work permit is tied to an Inland Sponsorship. When it hits a certain stage it is processed to presumed approval.
The form itself can be automatically populated with the same thing content/information on the inland sponsorship making the issue of discrepancy and misrepresentation due to error, less likely to occur.
Finally, rather than assuming clients have an understanding of the complexities of dual intention under A22 of the Immigration and Refugee Protection Act and these IRCC guidelines, this question could be directly assessed on the form with the requirement for a plan presented in the event of a refusal, to leave Canada. Officers could satisfy themselves where an Applicant and Sponsor agree (and can put in writing) that if the application is refused that they will leave Canada and re-apply. While it may hold limited legal weight (and intentions can change), it is something that can be brought up on enforcement if necessary.
On the note of interviews, in this day and age of digital contact, I do not believe there should be the need for in-person interviews or at the very least this can be a choice depending on the seriousness of the matter.
Indeed, virtual interviews allow for the partners to be together to attend the interview together, for the Officers to gauge the relationship on the basis of their attendance together. If spoual appeal hearings can go virtual, there’s no reason interviews must stay in-person. Indeed, in most refusals it is the stressful nature of an interview at the Government office that leads to the refusal (often forgetfulness due to stress) rather than the actual non-genuineness or primary purpose.
What Do You Think About My Ideas? What Are Yours?
Perhaps you may have other ideas. I have heard some around TRPs being issued and waiving certain IRPR provisions. What is key to remember here is that family class sponsorship has been the staple of Canadian immigration for many years and before our Express Entry system and the Government focused shifted to economic immigration, it was the crown jewel. We had a system that allowed sisters and brothers to reunite, families to grow organically, and communities to develop from that. We have largely limited the pie, and even today made parental sponsorships more difficult. If we can do anything to make family class sponsorship easier for partners and spouses – we should do it. The ability to remain unified during stressful times (which COVID has revealed) is essential and at the very least needs to elicit the same kind of urgency that we have placed in other areas during this pandemic.