Who can move Canada? An overview of the new immigration law.

• Author: Chotalia, Shirish
• Position: Feature on Immigration Law

As of June 28, 2002, Canadians have been governed by new immigration laws. On that date, the Immigration and Refugee Protection Act (IRPA) and its regulations came into effect. This article will examine immigration law and attempt to summarize some of the major immigration provisions. It will try to answer the following questions: Who can enter Canada? How? Under what conditions? Who cannot enter Canada? Why not? How is the new IRPA different from the prior immigration laws? What are the major changes to the law?

Framework Legislation

The IRPA works as framework legislation. This means that the Act contains the frame or outline of the law, while the substance and details of the law are found in the regulations to the Act. Thus, to understand immigration law, a person must read both the Act and the regulations cohesively.

Temporary Entry Into Canada

A non-Canadian, known as a "foreign national" may enter Canada either for a permanent stay, or for a temporary stay.

Permanent Entry into Canada

When a person seeks to stay permanently in Canada, that person applies for landing or permanent resident status. There are several means of receiving permanent resident status:

Family Class Members:

The IRPA maintains the principle of the earlier law on family reunification. In other words, one of the goals of the IRPA is to reunite family members who are apart. However, not all family members fall within the family class. Generally, a Canadian citizen or permanent resident may sponsor his spouse, common-law partner, child, or parent to become a permanent resident of Canada. The Canadian sponsor must complete an application agreeing to support that family member for a period of time after entry into Canada. Aunts, uncles, nephews, nieces and non-dependent siblings are not family class members and cannot be sponsored under this category.

Fiance

The IRPA has abolished the prior "fiance" category. Under the old law, a Canadian was able to sponsor his fiance to enter Canada upon the condition that the couple marry within 90 days of coming to Canada.

Common-Law/Conjugal Partner

Although the fiance category was abolished, new larger and broader categories have been legislated. Under IRPA, Canadian citizens and permanent residents may sponsor not only spouses, but also common law partners and conjugal partners, regardless of sex. Thus, homosexual common law partners are also eligible for sponsorship. Under the old law, such categories did not exist. The Supreme Court Canada ruled, in a number of cases, that common law couples and homosexuals had equality rights with others. To facilitate fairness, under the old law, homosexual partners were processed under a broader humanitarian and compassionate policy. Now, immigration law is clear. Homosexual couples and common law couples have the same rights as married couples.

In order to sponsor a common law partner, couples must have co-habited together for at least one year in a conjugal relationship. The IRPA also provides for sponsoring "conjugal partners" who have been in a conjugal relationship for at least one year. While the term "conjugal" is not further defined in the Act, the immigration manuals set out the following characteristics of a "conjugal couple": mutual commitment to a shared life; exclusive relationship; sexually exclusive relationship; interdependency (physical, emotional, financial and social); permanency of relationship; public acknowledgment of relationship; partnership; joint child care; length of relationship; time expended together; reasons for lack of physical cohabitation; evidence of long distant relationship; evidence of efforts to live in the same country. Thus, a homosexual couple meeting these criteria residing apart are eligible for reunification.

Dependent Children & Adoptions:

Generally, Canadians may sponsor their children provided that they are under the age of 22 years, or if over the age of 22 years have been continuously enrolled in school on a fulltime basis and are financially dependent upon their parents. In certain cases, children with mental and physical difficulties preventing them from becoming self-sufficient may qualify them as dependent children.

In some cases, Canadians may adopt children in other countries. Once adopted, a child can qualify as a "dependent child" and as a member of the family class...