Operations Memoranda (OM) - Overseas Processing

PURPOSE

To explain the transition regulations on family issues that permit some applications to be finalized under the Immigration Regulations, 1978; and to provide processing instructions on finalizing cases under the Immigration and Refugee Protection Regulations where assessment started under the Immigration Regulations, 1978. To explain transition regulations on temporary resident permits.

Family issues include: family class sponsorships, members of the family class, dependent children of immigrants in all classes, adoptions, fiancés, H&C applications and the Spouse or Common-law Partner in Canada Class.

Temporary Resident Permits involve persons who were issued permits under section 37 of the former Act. See section M for transition explanation on Temporary resident permits.

INTRODUCTION

Section 190 of IRPA specifies the transition rule for applications that were submitted prior to implementation date, but not finalized before that date. S190 states that "Every application, proceeding or matter under the former Act that is pending or in progress immediately before the coming into force of this section shall be governed by this Act on that coming into force".

For clarity:

Applications are "pending or in progress": if it was received at a CIC office before implementation date, even though assessment has not started and regardless of when a positive decision or refusal was recorded on paper or electronically in CAIPS.

Applications are subject to new rules unless a transition rule specifies otherwise or unless a visa has been issued a refusal letter post marked prior to implementation date has been sent to the applicant or other final decision has been communicated to the applicant.

Notwithstanding the above, administratively CIC will not revisit positive recommendation where an officer has made a written recommendation on a paper or electronic file, unless new information (e.g. newly created family member) or information related to the application of IRPA regulations (e.g. ineligibility of sponsor) is received or brought to the officer's attention that warrants review of the decision.

Transition regulations are found at Appendix A*

NEW UNDER IRPA

In the family class, IRPA creates new family members such as common-law partners and under 22 year old dependent children, introduces new sponsorship bars, introduces the concept of conjugal partner, eliminates the fiancé category and creates the Spouse or common-law partner in Canada class.

PROCEDURE

A - APPLICATION FORMS

An applicant who submitted an application before implementation date will not have completed the new application forms and therefore will not have provided all of the information that is now required under IRPA.

For operational reasons, CIC will not return all applications in progress as of implementation date. Instead, CIC will adopt a passive/reactive approach to these cases. Therefore, if there is no new information or "newly created" family member to add to the file and/or application and the officer has no specific reasons to question the information provided on the application submitted under the Immigration Regulations, 1978, processing will continue based on the information provided.

However, if an applicant wants to add a "newly created" family member, or if new information is added to the file, or if information related to the application of IRPA regulations (e.g. ineligibility of the sponsor) is brought to their attention the processing office will advise the applicant which forms need to be completed and all of the IRPA requirements will be verified, (See section C).

B - FAMILY CLASS SPONSORSHIPS

The new Act applies to all family class sponsorships on implementation date regardless of whether or not CPC-M or CPC-V has made an initial written recommendation concerning the sponsor’s ability to meet sponsorship requirements.

As such, applications for permanent residence may be refused if sponsors no longer meet the minimum necessary income test as a result of adding new family members or because it is learned they no longer meet the IRPA sponsorship requirements. This approach is supported by the IRPA regulations which state that sponsorship requirements must be met at the giving of the undertaking (R133) and still be in effect when a final decision is made (R120).

However, for operational reasons, as well as efficient processing, CIC officers in Canada and outside Canada will not review initial sponsorship recommendations made before June 28 unless new information (e.g. newly created family member) or information related to the application of IRPA regulations (e.g. ineligibility of the sponsor) is brought to their attention.

Similarly, unless new information or information related to the application of IRPA regulations is brought to their attention, officers are not required to seek additional information on sponsorship applications, received before June 28th and assessed after that date.

Therefore, officers are not required to ask sponsors for information concerning:

• Default of Court ordered support payments;
• Receipt of social assistance;
• Conviction for domestic violence;
• Revocation of Canadian citizenship proceedings, or appeal of permanent residency obligations; nor
• The names of "newly created" dependent children between 19 and 22 years of age or a common-law partner.

The same administrative transition approach will apply to an officer at a port of entry who is examining a family class holder of a permanent resident visa seeking entry. That is, the officer is not required to re-visit a decision, made before June 28, 2002, to issue a permanent resident visa. Similarly, the officer is not required to review a permanent resident visa issued under the administrative transition approach outlined above.

This approach is subject to any new information (e.g. newly created family members) or information related to the application of IRPA regulations (e.g. ineligibility of sponsor) that may come to the attention of the officer or reasons that may lead the officer to believe the applicant is inadmissible for reasons of criminality or security (e.g. notation in FOSS).

C - "NEWLY CREATED" FAMILY MEMBERS: - R352*

Although IRPA expands the definition of family members to include new family members such as common-law partners and 19 to 22 year old dependent children, these "newly created" family members do not have to be added to the application in progress. The sponsor may choose to add them or to not add them and will not be penalized for not adding them (see section H for categories other than the family class).

If a "newly created" family member is added, the sponsor may choose Option 1 or Option 2:

OPTION 1:

If the sponsor chooses to maintain the existing undertaking on behalf of family members already listed and adds "newly created" family members to the application

• The undertaking on behalf of existing family members remains valid for a period of ten years;
• A new IRPA sponsorship undertaking application on behalf of "newly created" family members must be provided by the sponsor with the applicable processing fee;
• The CPC does an assessment of all information on the IRPA sponsorship undertaking, including assessing the sponsor’s eligibility against the new sponsorship bars;
• If the sponsor is found ineligible to sponsor after adding "newly created" family members and chooses to withdraw the IRPA undertaking then only the permanent resident processing fees paid and the RPRF paid for the "newly created’ family member could be returned if processing has not begun;
• If the sponsor is found eligible to sponsor after adding "newly created" family members, the visa office or CPC will ask the principal applicant to complete a new IRPA application for permanent residence, and
• The "newly created" family member completes an IRPA schedule 1 Background/Declaration;
• The officer assesses the applications against IRPA criteria; and
• The sponsor maintains his/her place in the processing line.

OPTION 2:

If the sponsor wants to amend the duration of an undertaking for existing family members listed on an application and adds "newly created" family members

• The sponsor withdraws the existing sponsorship undertaking and the immigration application that he/she submitted prior to implementation with no refund of fees already paid;
• The sponsor submits a new IRPA sponsorship application/undertaking, new IRPA application for permanent residence and pays new fees on behalf of all family members;
• The CPC does an assessment of all information on the IRPA sponsorship undertaking, including assessing the sponsor’s eligibility against the new sponsorship bars;
• If the sponsor is found ineligible to sponsor after submitting the new IRPA sponsorship application and chooses to withdraw the undertaking then the permanent resident processing and RPRF paid for all family members could be returned if processing has not begun;
• If the sponsor is found eligible the evaluation/assessment process begins on the application for permanent residence for all family members;
• All family members are subject to IRPA regulations and
• The undertaking is subject to terms and duration under IRPA.

D - DURATION OF UNDERTAKINGS: - R351

For all sponsorship undertakings received before implementation date, including those assessed after implementation date, the duration and terms of the undertaking will continue to be valid for a period of ten years. As such, an undertaking received for a spouse, before implementation date will continue to be valid for ten years. An undertaking received for a dependent child, before implementation date will remain valid for 10 years, regardless of the age of the child when he/she becomes a permanent resident. This does not affect Quebec sponsorship undertakings for which the duration is determined by MRCI.

Any sponsorship undertaking received after implementation date, including those received on behalf of "newly created" family members will be subject to the terms and duration specified under IRPA. This may result in cases with two sponsorship undertakings in effect for members of the same family (e.g. an undertaking received before June 28th for the spouse is valid for ten years and an undertaking received after June 28^th for a 19 year old dependent child added to the same application is valid for a maximum of 6 years).

E. FIANCE(E)S: - R356*

Upon implementation of IRPA, the fiancé category will no longer exist. However, where an application for permanent residence was submitted before implementation, the application will be processed to finalization under the former Immigration Act (1976). In view of the wording in R356, CIC has also chosen to recognise, as pending or in progress, those fiancé cases where an application for permanent residence received after implementation is preceded by a sponsorship application filed prior to June 28th. If an application is approved, the terms and conditions under the 1978 Regulations will be applied. Applicants who do not meet terms and conditions are reportable and subject to enforcement action. Refused applicants will maintain their right of appeal to the IAD.

F. SPOUSE OR COMMON-LAW PARTNER IN CANADA CLASS:

This is a new class created by IRPA. Applications in this class can only be submitted after IRPA implementation. As such, there are no transition rules.

G. HUMANITARIAN AND COMPASSIONATE APPLICATIONS (received prior to June 28)

H&C applications in Canada approved in principle (AIP) prior to June 28:
CIC will not re-visit the original decision and officers will process towards landing on the basis of the original application. Officers will not examine overseas family members nor can family members be added for concurrent processing. If applicants wish to add family members at this stage, they should be informed that their family members cannot be treated as part of the current application and must be dealt with in a separate application. Alternatively, they can withdraw their application and re-apply under IRPA.

H&C applications in Canada pending (without a decision - AIP) on June 28
These applications should be assessed based on IP5 revised for IRPA. In addition, officers should note that there are no provisions to convert H&C applications into Spouse or common-law partner in Canada class applications.

H&C applications in Canada pending (without a decision - AIP) on June 28 - Spouses
Where the sponsor and all family members meet IRPA requirements and the applicant would otherwise qualify for the Spouse or common-law partner in-Canada class officers may consider this a positive factor when assessing the application. However, should applicants want to benefit from IRPA (e.g. medical exemption for a sponsor's partner), they will have to withdraw their H&C application and re-apply as a member of the Spouse or common-law partner in Canada class.

H&C applications in Canada pending (without a decision - AIP) on June 28 - Common-law partners
For applications from Common-law partners in Canada without a sponsorship where the applicant and all family members meet IRPA requirements and the applicant would otherwise qualify for the Spouse or common-law partner in Canada Class, officers may consider this as a positive factor when assessing the application. However, should applicants want to benefit from IRPA (e.g. medical exemption for a sponsor's partner), they will have to withdraw their H&C application and re-apply as a member of the Spouse or common-law partner in Canada class..

H&C applications in Canada pending (without a decision - AIP) on June 28 - family members
If H&C factors are sufficient, as per IP5 revised for IRPA, to allow processing in Canada, and applicants have listed family members outside Canada, CPC-V and/or the CIC will request an address to permit examination of these family members. At this time, CIC will inform applicants that they may request concurrent processing of family members outside Canada. However, principle applicants are not eligible for permanent residence, unless they are able to support themselves and all of their family members, including those added to the application for concurrent processing and they and all their family members meet IRPA requirements. Where the application is supported by an undertaking, the sponsor should be able and willing to add family members to the undertaking.

H&C applications at visa offices – common-law partners
For applications approved in principle (only admissibility checks remain) prior to June 28, CIC will not re-visit the original decision and officers will process on the basis of the original application.

For applications pending on June 28, it should be noted that all such applications should be treated as H&C applications based on IRPA and there are no provisions to convert H&C applications into Family Class applications.

For applications from a Common-law partner overseas without a sponsorship where the applicant would otherwise meet all IRPA requirements for the family class as a common-law or conjugal partner, officers may consider this as a positive factor when assessing the application. However, should applicants want to benefit from IRPA (e.g. medical exemption for a sponsor's partner), they will have to withdraw their H&C application and re-apply as a member of the Family class.

H. EXAMINATION OF FAMILY MEMBERS OUTSIDE CANADA LISTED ON IN CANADA APPLICATIONS - ANY CATEGORY.

CPCV or the CIC will contact applicants to request additional information (i.e. addresses) on family members outside Canada to be added to an application. This information will be sent to the appropriate visa office with a request from CPC-V or the CIC to examine family members for statutory requirements.

I. VISA OFFICE - CATEGORIES OTHER THAN FAMILY CLASS

As previously noted, common-law partners and 19 to 22 year old dependent children are "newly created" family members under IRPA. The same rules apply for these family members when processing any other type of application for entry to Canada, including: economic or refugee permanent resident visa, student, temporary skilled worker, temporary resident permit, LCP, etc.

If the application was submitted prior to implementation date, the "newly created" family member may be added to the application, but does not have to be added. If the "newly created" family member is not added to the application they cannot make the applicant inadmissible and will not be subsequently excluded from the family class (see Transition regulations - R352, 353, R354, R355).

J. MEDICALLY INADMISSIBLE SPOUSES AND DEPENDENT CHILDREN

Applications pending or in progress on implementation date may involve sponsored spouses and dependent children, including adopted and to be adopted children, that under the Immigration Regulations, 1978 would be refused if their condition might cause excessive demand on health or social services. On implementation date these applications will be subject to IRPA regulations (i.e. spouses and dependent children, including adopted and to be adopted children are no longer inadmissible for excessive demand). If no refusal letter has been sent by implementation date, these applications should be approved unless there are other grounds of inadmissibility.

R118 under IRPA requires that adoptive parents provide written confirmation that they have medical information regarding children they are sponsoring. Specifically, these sponsored children are: children legally adopted by the sponsor, children whom the sponsor intends to adopt in Canada, or the sponsor’s orphaned brother, sister, niece, nephew, grandson or granddaughter. A visa officer must receive this written confirmation before a permanent resident visa may be issued. Attached, as Appendix B is the "Medical Condition Statement" which will be included in the new standard Sponsorship Kit (IMM 5196) as of June 28th. If no refusal letter has been sent by implementation date, Visa officers must ensure that adoptive parents complete this statement. All cases in process or pending on implementation date must meet this requirement.

L. MINIMUM NECESSARY INCOME (LICO)

Applications pending or in progress on implementation date may include sponsorships involving dependent children, who are over the age of 19, who are married or who have dependent children of their own, where the sponsor would have been required to meet LICO as per the Immigration Regulations, 1978. On implementation date, these applications will be subject to IRPA regulations. LICO no longer applies to the sponsor’s own dependent child or the dependent child of the sponsor’s spouse, common-law partner or conjugal partner unless the child has a child of his/her own. If no refusal letter has been sent by implementation date, in these cases, applications where the only reason for the refusal was the sponsor's inability to meet LICO should be reviewed for possible approval.

M. TEMPORARY RESIDENT PERMITS

Persons in Canada and in possession of a valid Minister’s Permit on implementation date will be deemed to be in possession of a Temporary Resident Permit. All rules applicable to Permit holders under IRPA will apply, including those for permanent residence. Therefore applicants who fulfil the requirements of the Permit Holder’s class may apply for permanent residence.

Applications for permanent residence that are pending or in process on implementation date will be returned to the local CIC office, of the permit holder, where processing will continue. No additional fees are required for this process.

If the Minister's Permit has expired, the applicant is subject to A44. Officers may consult IP1 - Temporary Resident Permits, for factors to consider in determining whether to renew a person's status.

IRPA provisions concerning deemed rehabilitation and medical inadmissibility due to excessive demand may result in some Minister’s Permit holders no longer being inadmissible. These permit holders may no longer require a permit to overcome their inadmissibility and may regularize their status in Canada, before the expiry of their current permit, by applying for permanent or temporary resident status using applicable mechanisms available under IRPA.

N. FEES

Permanent Resident Application Processing Fee

All fees paid under the Immigration Regulations, 1978 are applied to the application still in progress under IRPA. Therefore, no additional fees should be collected for applicants who have an application in progress at implementation.

If a "newly created" family member is added to the application, then the cost recovery fee collected would be the fee under IRP Regulations.

Right of Permanent Residence Fee (RPRF -formerly ROLF)

New exceptions to the requirement to pay the Right of Permanent Residence Fee (RPRF) have been introduced under the IRPA Regulations. Dependent children of any age are not required to pay the RPRF. Any payment of "ROLF" for a dependent child where the application is still in progress or where the dependent child has not become a permanent resident as of implementation date must be repaid. A separate OM from the Cost Recovery unit will explain this process.

APPENDIX A

R317(2) - Documents issued under former Act

A document, including a visa, that is issued under the former Act and is valid and subsisting immediately prior to the coming into force of this section continues to be valid and subsisting after the coming into force of this section.

R318 - Terms and conditions

Terms and conditions imposed under the former Act become terms and conditions imposed under the Act or these regulations.

R329 - Permit holders

(2) A permit issued by the Minister under section 37 of the former Act is deemed to be a temporary resident permit referred to in section 24 of the Act.

351. (1) Application of the Act to existing undertakings

Subject to subsection (2), an undertaking referred to in section 118 of the former Act that was given before the day on which this section comes into force is governed by the Immigration and Refugee Protection Act.

351. (2) Recovery of social assistance payments

Payments that are made to or for the benefit of a person as social assistance or as financial assistance in the forms of funds from a government resettlement assistance program referred to in subparagraph 139(1)(f)(ii) as a result of the breach of an undertaking, within the meaning of subparagraph (a)(ii) or paragraph (b) of the definition "undertaking’ in subsection 2(1) of the former Regulations or of the definition "undertaking’ in subsection 1(1) of the Humanitarian Designated Classes Regulations, that was given before the day on which this section comes into force, may be recovered from the person or organization that gave the undertaking as a debt due to her majesty in right of Canada or in right of a province.

351. (3) Duration

For greater certainty, the duration of an undertaking referred to in section 118 of the former Act that was given to the Minister before the day on which this section comes into force is not affected by these Regulations.

351. (4) Duration and terms

For greater certainty, if an immigration visa was issued to a person described in section (7) of the former Regulations or section 4 of the Humanitarian Designated Classes Regulations before the day on which this section comes into force, the duration and terms of an undertaking referred to in section 118 of the former Act relating to that are not affected by these Regulations.

352 Not required to be included

A person is not required to include in an application a non-accompanying common-law partner or a non-accompanying child who is not a dependent son or a dependent daughter within the meaning of subsection 2(1) of the former regulations and is a dependent child as defined in section 2 of these Regulations if the application was made under the former Act before the day on which this section comes into force.

353. Requirements not applicable

If a person has made an application under the former Act before the day on which this section comes into force, the following provisions do not apply to the person in respect of any of their non-accompanying dependent children, referred to in section 353, or their non-accompanying common-law partner:

1. subparagraph 70(1)(e) or 72(1)(e)(i);and
2. paragraph 108(1)(a).

354. Requirements not applicable

If a person makes an application before the day on which this section comes into force, their non-accompanying dependent children, referred to in section 353, and their non-accompanying common-law partner shall not, for the purposes of that application be considered inadmissible non-accompanying family members, referred to in paragraph 42(a) of the Immigration and Refugee Protection Act, and are not subject to the requirements of paragraph 30(1)(a) or 51(b).

355. Family members not excluded from family class

If a person who made an application under the former Act before the day on which this section comes into force sponsors a non-accompanying dependent child , referred to in section 353, who makes an application as a member of the family class or the spouse or common-law partner in Canada class or sponsors a non-accompanying common-law partner who makes such an application, paragraph 117(9)(d) does not apply in respect of that dependent child or common-law partner.

356. Fiancés – Pending applications

If a person referred to in paragraph (f) of the definition "member of the family class" in subsection 2(1) of the former Regulations made an application under those Regulations for a permanent resident visa before the day on which this section comes into force, the application is governed by the former Act.

APPENDIX B

Medical Condition Statement

This refers to the sponsorship you submitted on behalf of your orphaned relative or the child you have adopted or are in the process of adopting outside Canada, or intend to adopt in Canada.

According to section 118 of the Immigration and Refugee Protection Regulations a permanent resident visa may not be issued to the child unless you, as the adoptive parent(s), provide a written statement confirming that you have obtained information about the child’s medical condition.

Given the commitment which parenting requires, it is in the child’s best interests, as well as yours, that you be well and reliably informed about your child’s health status. This may include health information provided by authorities in the child’s country or information you obtain through an independent medical examination.

Please note that the immigration medical examination completed as part of the child’s application for permanent residence in Canada is done for immigration purposes and is not confirmation of overall good health.

Once you have obtained and reviewed medical information concerning the child you are sponsoring, please complete the portion below and forward it by mail or fax to the visa office outside Canada processing the child’s application.

Immigration and Refugee Protection Regulations. I wish to _____
CONTINUE ____ABANDON the application for permanent residence made on his/her behalf.