CILA Statement on IRCC’s Temporary public policy exempting certain applicants applying under the spouse or common-law partner in Canada class or the Family Class from work permit requirements

Disclaimer: The opinions and positions expressed herein are reviewed by CILA’s Board of Directors and may not represent the views of all members.

CILA applauds IRCC for issuing the Temporary Policy Exempting Certain Applicants Applying under the Spouse or Common-law partner in Canada class or the Family Class From Work Permit Requirements (“the Policy”). This policy allows sponsored spouses and partners who have filed family class sponsorship applications to apply for a temporary resident visa with a 30-day processing time, and upon arrival in Canada to apply for an open work permit for the duration of the sponsorship process.

The Policy significantly assists in the reunification of families, which is an explicit objective of IRPA. The policy also reduces the disadvantage experienced by people who require visas for Canada, who are often denied visas and unable to reside with their spouses and partners during the sponsorship process.

Nevertheless, CILA is concerned about the following consequences of the policy, which require further consideration:

1. Broadly, the Policy will increase the attractiveness of the family class, and of temporary resident visas. People who have qualifications to seek permanent residence under the family class or economic class will likely choose the family class because of the quicker, more certain pathway to living and working in Canada. People who have a choice of being sponsored to Canada or sponsoring their Canadian spouse/partner will likely choose the former because few other countries have similar programs.Applications by spouses/partners under the family class, unlike the economic class, have no inventory control mechanism such as the Express Entry system. The 2023-2025 IRCC Immigration Levels Plan forecasts relatively stable admissions of family class members compared to the 2021-2023 Levels Plan. CILA is concerned that the increased attractiveness of sponsored spouse/partner applications in the family class, made in anticipation of a temporary resident visa, will add to already strained resources and lengthen overall processing times in this category.Similarly, IRCC has struggled with lengthy processing times for temporary resident visas. The Policy will encourage people who have been previously unsuccessful in temporary resident visa applications to try again, increasing the volume of new temporary resident visa applications.The Policy therefore will apply more pressure on processing times in categories that are already strained. Without additional resources allocated to processing spouse/partner and temporary resident visa applications, processing times will inevitably lengthen.It is acknowledged that the May 26^th, 2023 News Release announcing the Policy described “dedicated processing tools” for spousal TRV applications, however, it is not clear where these tools exist or how they are accessed.RECOMMENDATION: That sufficient processing resources be allocated to processing sponsored spouse/partner and temporary resident visa applications in anticipation of the increased volume of files in these categories, and that dedicated processing tools be made as transparent as possible to applicants and visa officers.
2. CILA is concerned that temporary resident visa applications filed under the Policy will change to involve a greater focus on the merits of the relationship underlying the sponsored permanent residence application. Visa officers, particularly in regions perceived to witness high levels of fraud, will be aware that granting a temporary resident visa application will provide access to the Canadian laobur market. Intense scrutiny will result. Clients may not expect the intense scrutiny and fail to file sufficient evidence justifying processing under the Policy. This will again place pressure on processing times, create unfairness for clients, and result in determinations of lack of genuineness which will then jeopardize the sponsored permanent residence application.RECOMMENDATION: Instructions should be issued discouraging officers from conducting spousal sponsorship assessments in the context of temporary resident visa applications made pursuant to the Policy.
3. CILA is pleased to see that spouses of Canadian citizens and permanent residents who have made a spousal sponsorship application from outside of Canada will be able to apply for an open work permit upon arriving in Canada. However, we believe the criteria requiring the spouse to be in Canada living with their sponsor before being eligible is counterproductive to facilitating the spouse’s entry into the Canadian labour market. Inland applications for work permits are taking 5 months and this delay in the issuance of an open work permit will not alleviate the hardship to families.  IRCC does not require the spouses of foreign students or foreign workers to be in Canada living with their spouse before they become eligible to apply for work permits. Thus, the Policy treats the spouses of Canadian citizens and permanent residents less favourably than the spouses of foreign nationals.  We recommend that an open work permit be issued for one year only either at the time the TRV is applied for or at the port of entry. On renewal the applicant can submit evidence of residence with the spouse.  Shifting the burden to CBSA to issue the work permits at the port of entry will assist with the deployment of IRCC resources.  The CUAET special measures represents a precedent for issuing work permits at the port of entry after a TRV was issued.RECOMMENDATION: That an open work permit pursuant to the Policy be available for issuance at a visa office or upon arrival at a port of entry.
4. Conjugal partners are jeopardized by the Policy. The policy allows for the issuance of an open work permit to conjugal partners residing in Canada with their sponsors. However, conjugal partners by definition are residing outside of Canada. Regulation 2 states:conjugal partner means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year. (partenaire conjugal)Therefore, a conjugal partner who files a family class application then moves to Canada to live with their sponsor will render themselves ineligible for an open work permit because they will no longer meet the definition of “conjugal partner”. More alarmingly, their overseas family class application risks refusal on the basis that they are no longer conjugal partners and no longer members of the family class. Conjugal partners will be required to marry after reuniting with their Canadian partner, if they are able to do so. However, processing instructions do not require visa officers assessing sponsorship applications to change the relationship category from that which was identified in the initial application.RECOMMENDATION: The Policy should be amended to indicate that the conjugal partner status of family class applicants who receive temporary resident visas and move to Canada should be locked in at the time of the family class application.

As stated above, CILA supports the intent of the Policy and the potential to reunite spouses/partners in Canada faster. CILA makes the above recommendations in the spirit of avoiding unintended consequences and strengthening the Policy.