IMMIGRATION: Engaged couple need patience… lots of patience

IMMIGRATION: Engaged couple need patience… lots of patience

Q: I am currently at a loss. I am engaged to an attorney from a country in the Middle East. He enrolled in, and was accepted to, a four-month English language program at a Canadian university. I helped him apply for a study permit and sent him a notarized letter to present to the embassy stating that I was going to take care of all of his living expenses while he was here. His application for a study permit was refused. Basically, the officer felt that he did not have strong enough ties to his country to ensure his return there. Also, she felt that the study program he was enrolled in did not carry enough validity. I don’t know what to do next to get him into Canada. I cannot marry him yet because my divorce is not final. What can you suggest?

A: Firstly, foreign nationals may enter or remain in Canada without a study permit to attend a course or program of studies of six months’ duration or less. Therefore, strictly speaking, your fiancé did not need a study permit to take this particular course since it was less than six months in duration. However, your fiancé will need a “temporary resident visa” to visit Canada since he is not from a country whose nationals are exempted from Canada’s visitor visa requirements. Since he did apply for a study permit, the officer was required to receive it and to process it.

Secondly, an acceptance letter from a Canadian school, a letter of financial support, and the payment of a fee do not come close to guaranteeing the issuance of a study permit…far from it.

Foreigners who intend to study in Canada are subject to the same rules as all visitors to Canada. To quote our immigration department’s policy manual “The onus, as always, remains on the applicant to establish that they are a bona fide temporary resident who will leave Canada following the completion of their studies…”

It is perfectly normal to expect that you and your fiancé want to be together. After all, by being engaged to one another you are committed to being together for always. Canada has a process to allow that but first you have to finalize your divorce, marry him (probably abroad), and sponsor him.
Alternatively, you can go overseas to live with him for a year so that you can sponsor him as a common law partner. No doubt, neither of these options is attractive but this is the bureaucracy that we have created for ourselves.

Assuming that the visa officer was aware of your engagement, she probably read between the lines and formed the view that you were attempting to do through the back door what you could not do through the front. She may have concluded that since our rules don’t allow you to bring him here quickly as a permanent resident, you were simply attempting to bring him here as a temporary resident because that process is faster. The officer probably concluded that your fiancé could have pursued an ESL course more economically elsewhere and in many places closer to home but chose this one for the sole reason that he wants to be with you. The officer may also have some unanswered questions as to why it is so important for him, or his legal career, to travel to the very country where he just happens to have a fiancée, just to learn some English.

More importantly, the officer may have also believed that your fiancé has no intention of actually leaving Canada after he gains a foothold here. After all you could sponsor him while he is in Canada after you are married.

Of course, it is possible under our rules to have a “dual intent” i.e. a simultaneous intention to visit Canada temporarily and an intention to live here permanently. However, in this case, the officer was probably of the view that your fiancé’s intention or willingness to leave Canada is, on a balance of probabilities, entirely absent.

I hate to say this but now that his study permit has been refused, the embassy will likely use the same grounds to refuse any future application for a visitor’s visa, study permit, or work permit.

Assuming that you did mention the true nature of your relationship, you would be wrong to think that it was a mistake to do so. Had you not done so, when you go to sponsor him, immigration officials will almost certainly review his previous application for his study permit and discover that you both failed to mention a critical fact i.e. that he had a fiancé here. This could seriously undermine his credibility and yours and could prove fatal to your sponsorship application.

My suggestion? Get moving on your divorce, marriage and sponsorship and be patient…very patient.

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Guidy Mamann, J.D. practices law in Toronto at Mamann, Frankel, Sandaluk LLP and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email reporter@migrationlaw.com.