CANADA NEWS December 1997
Spouses and caregivers awarded unique status
IN general, applications for landed immigrant status must be lodged at a visa office outside Canada, writes Mitchell Brownstein.
However, there are certain exceptions.
There is a special exemption for domestic workers, known as live-in caregivers, who enter Canada on a special temporary work permit.
After working for two years in Canada, they may apply for landed immigrant status in the country.
Similarly, refugees claiming political asylum from within Canada may obtain their landed immigrant status without making an application at a visa office abroad.
Most relevant for Canada News readers is a third category.
This allows individuals to apply for landed immigrant status from within Canada based on a special section in the immigration regulations whereby, for reasons of public policy or for compassionate or humanitarian considerations, individuals may be granted landing from within Canada.
However, although the legislation provides for inland processing, landing will not readily be granted in this basis.
The most successful applications under this category are the inland spousal applications which enable an individual on temporary status in Canada to marry a Canadian citizen and, on humanitarian or compassionate grounds to stay in Canada and receive landing without having to leave the country.
This is because it would be unreasonable or uncompassionate to separate the newly married couple.
In the spousal application it must be shown that the marriage is bona fide and not for the sole purpose of obtaining landed immigrant status in Canada.
The visa officer's assessment of the case is made on the balance of probability, and should he feel the marriage was entered into for immigration purposes the application will be refused.
These cases are usually decided on the basis of an interview between the immigration officer and the applicant.
Both spouses are interviewed separately and may later respond to inconsistencies.
In many instances where children are involved, a refusal of a marriage case with removal order has been prevented by requesting a "stay" as it is realised the removal of one parent from Canada, while the other stays, could constitute irreparable harm to young children.
It also takes into account the difficulties faced by a single parent catering for the children.
There is hope, too, should a marriage break down and the Canadian spouse withdraw sponsorship prior to an applicant receiving landing.
In these cases, processing will cease and the case will be reviewed on humanitarian and compassionate grounds.
The establishment of the applicant in Canada is then considered in determining whether the application should still be considered under this category.
Others who can take advantage of this category are those who have remained in Canada illegally or without status and who are financially, socially and culturally well-established in Canada meaning that Canada is, in effect, now their real home.
Generally, applicants must prove at least five years' residence in Canada as well as other factors.
Relatives in Canada are a very important factor.
However, close family in the applicant's country of origin would be considered negatively.
Investment, savings and integration into the community are also variables that could be considered favourably.
Individuals on temporary employment authorisations for long periods of time may also apply for landed immigrant status from within Canada under this category.
This is not the case with respect to long-term student authorisation holders, except in special circumstances.
It should be noted that acceptance under the humanitarian and compassionate grounds category is considered should "unusual, undeserved or disproportionate hardship" be suffered if the applicant was repatriated.
This is the case in situations of dependency on family in Canada as well as those where the applicant could be subject to inhumane treatment should they return to their country of origin. In considering family dependency, economic conditions and support in an applicant's country of origin will be looked at.
Applicants in this case need not necessarily be refugees.
The situation of the country or any likely hardship at the hands of the government may be considered. But, in this case, a life-threatening situation must be proved, which is usually difficult to achieve.
