September 26, 2018
Hello, fellow practitioners!
Today’s question relates to the In-Canada Spouse or Common Law Partner Class (SCLPC) and the open work permit application that sometimes accompanies such applications.
The study permit of a temporary resident expires on September 30, 2018. He married a Canadian and made an "in Canada" spousal sponsorship application on September 15, 2018. Along with the spousal sponsorship, he has also made a open work permit application to extend his stay in Canada. (Technically before the end of his authorized period of stay)
1. After September 30, 2018 until he gets the open work permit or his package returned as incomplete, is his status in Canada considered "Implied Status"?
2. With reference to IP 8, will his sponsorship application mostly likely refused because of his lack of temporary resident status or will his implied status will be considered as a valid status?
With respect to question # 1, the answer lies in Regulation 183(5) which states as follows:
(5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until
(a) the day on which a decision is made, if the application is refused; or
(b) the end of the new period authorized for their stay, if the application is allowed.
So if the applicant was in status on September 15, 2018 and made an application for an open work permit which accompanied his spousal application, he would therefore be considered in implied status until such time as the decision is made.
With respect to question #2, it appears that the reader is unaware of the Public Policy in Appendix A to Manual Chapter IP-8, which waives the application of Regulation 124(b).
R124(b) states as follows:
124 A foreign national is a member of the spouse or common-law partner in Canada class if they
(a) are the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
(b) have temporary resident status in Canada; and
(c) are the subject of a sponsorship application.
R124(b) is obviously causing some confusion for our reader, because it suggests that a person has to be in valid temporary resident status in Canada in order to be approved under the SCLPC. However, what the reader is missing is the fact that Appendix A to Manual Chapter IP-8 actually exempts most people from this requirement for reasons of public policy. https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/ip/ip08-eng.pdf
Appendix A states as follows:
A25 is being used to facilitate the processing of all genuine out-of-status spouses or common-law partners in the Spouse or Common-law Partner in Canada class where an undertaking has been submitted. Pending H&C spousal applications with undertakings will also be processed through this class1 . The effect of the policy is to exempt applicants from the requirement under R124(b) to be in status and the requirements under A21(1) and R72(1)(e)(i) to not be inadmissible due to a lack of status; however, all other requirements of the class apply and applicants will be processed based on guidelines in IP 2 and IP 8.
Please note that there are some exceptions to the above rule, and it is necessary to read ALL of Appendix A in order to understand who is or is not exempted from R124(b).
Consequently, in the scenario posed by the reader, the application under SCLPC would definitely be eligible for consideration, even if the applicant had not been in implied status.
When it comes to consideration of the open work permit application, however, it is a requirement that the applicant be in valid status at the time of making the work permit application. In this case, the applicant was in status at the time of applying on September 15, 2018 and would be eligible for the work permit. Also keep in mind that the open work permit policy allows a work permit application to be considered from a person who has accidentally lapsed out of status, as long as the applicant is still within the Restoration period of 90 days and has submitted a Restoration application along with the sponsorship.