Immigration Applications can Succeed or Fail on Legal Technicalities

US And Canada Immigration Applications can be affected by small mistakes

There are cases when the law works in your favor and cases when it does not.

In our immigration law practice, we see many immigration applications get approved or get refued based on legal technicalities. In some cases, there are immigration applications that are very strong but because of some unanticipated issue, the case is rejected. It usually does not go the other way – where the application is approved – unless an immigration lawyer is involved to “point out” where the Visa Officer may have made an error assessing the application.

Specific cases of Immigration Applications being denied because of mistakes

In one case, reported by the National Post on November 27, 2008 , a man’s Spousal Sponsorship Application was allowed to proceed even though the man was convicted of killing sister-in-law in India 11 years ago by dousing her in kerosene and setting her on fire.

According to the Federal Court of Canada, this man will be allowed to sponsor his new wife for Canada Immigration. The Federal Court’s ruling was based on a legal technicality that regulations preventing a person from sponsoring an immigrant  for criminality are based on convictions against blood relatives. This means that because this man killed his sister-in-law and not a blood relative or a”family member”, he is allowed to sponsor his new wife.

Whether or not you agree with the Federal Court’s decision, the point here is that it clearly shows that legal technicalities can make all the difference in successful immigration applications. If that man was convicted of say, killing his parents or siblings, then he would be prevented from sponsoring his new wife. But as the current law would have it, offences against in-laws are not counted.

Most would consider a sister-in-law a “family member”. However, this is not the case when it comes to the immigration legal defintion in this context. Sounds strange and contrary to common sense? Often the law is such and immigration lawyers, for better or worse, take advantage of this fact on behalf of their clients.

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Michael Niren

About Michael Niren

Michael is a graduate of Osgoode Hall Law School in Toronto. He is a member of the Law Society of Upper Canada, the Canadian Bar Association’s Citizenship and Immigration Section and the Associate Member of the American Bar Association. Read more

  • Hi John
    If you are in a conjugal relationship for one year or longer, you may be able to sponsor her without the need to live together for one year as a common law couple. Either way, you could sponsor her despite the fact that she is still married. I am not clear whether there is a misrepresentation here regarding her tourist visa. I would need more information.

  • John

    I want to sponsor my common law spouse from the Philippines to Canada and I am looking for someone to assist me with the process but before I begin I need the following question answered.

    We have been living in a conjugal relationship since August 2007. I have been to Canada three times since then.
    She is legally married in the Philippines but not legally separated or annulled. There is no divorce in the Philippines. She has been living apart from her husband for 3 years.

    In December 07 she applied for a tourist visa to Canada and was denied. On the application she checked off that she was married.
    The options were:
    Common Law
    Legally separated
    Never married

    As she is married and her interpretation of Common Law was living together continuously for over a year she checked off Married. She also put both her and her ex husband’s address under both names.

    We are now planning to stay together for 12 months uninterrupted and apply as common law spouses.

    We are concerned they will review her application for tourist visa and deny her PR application saying she lied and said she was married when she was actually living with me.

    Any ideas about this or experience?

    Need to clear this up before we go ahead


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