worriedmom

Hi from worried mom !!
I am new to this site- an EU Citizen.I need some solid advice.
My son has been living in Alberta C.A for the past 5 years working as a carpenter in the skilled worker class and yearly work permits,he always stayed within the terms of the visa issued .That was up to 14 March 2012 when he was issued with an exclusion order as there was some issue with his VISA administrive delays resulting in him being in Canada after his visa ran out (22 jAN 2012)He had to leave Canada and his comon law partner (Canadian )and her children on 4/4/2012 .He is now back in Europe.
This is more complicated to the fact that he had a court case pending in Alberta for common assault (his first offence) Because IMM had issued the exclusion order ,the CROWN court put a STAY on PROCEEDINGS.
my question is ,is there any point of the young couple going dow the road of Spousal Sponcership as its quite complicated?
THE SECOND QUESTION ; Will he be deemed inadmissable by IMMIGRATION if he goes back after the exclusion order expires 2013/April based on the STAY of Proceeding,or worse will he be tried in Court in Canada if he goes back.
Please help as a parent I am very distressed over this as is my son. Thank you so much

Sue

Hi worriedmom,

Welcome to BE. I can't help with your question as I am in the US, but I've taken the liberty of moving your post into a thread of it's own for you.

Hopefully someone may be along soon who can share some pointers and tips.

Best of luck with everything.

Former Lancastrian

My guess is that the crown stayed the proceedings because of the exclusion order. If he was to return after the 1 year exclusion he could be deemed inadmissible as the charge was stayed and could be reinstated.
An order preventing, either temporarily or permanently, any further action on a prosecution. Crown prosecutors have a power under the Criminal Code to temporarily stay proceedings for a period not exceeding one year, and judges can permanently stay proceedings as a remedy for a Charter breach.
I would check with a lawyer as to what may happen. Im assuming he will return after the 1 year exclusion?

christmasoompa

Hi, and welcome to BE.

I can't see how they'd qualify for common-law sponsorship if they are not currently living together and have no intention of doing so in the near future - unless your son's girlfriend is planning on moving to the UK?

But I definitely think this it outside the scope of a bunch of laymen on an internet forum, time to call an immigration lawyer or two.

Best of luck to your son.

worriedmom

Thank you both for your input.
Yes he plan is to go back and is presently busy with the paperwork,medcicals etc.It could all prove a waste of time,so will take your advise and have his parthner in ALBERTA run it past a lawyer,This is a gret site,you get proper information,TKS AGAIN

worriedmom

Thanks for your input,you are right he is not physically there right now at least not since 4/4/2012 ,he lived with his partner for 5 years prior to that.

firstchoice

If you want to PM me, I can give you the contact details for a criminal lawyer in Alberta. Perhaps he can discuss this with the Crown prosecutor. Inadmissibility for criminal reasons, in the case of an event that occurred in Canada, requires an actual conviction.

Unless the relationship has actually broken up, my opinion is that he can still be sponsored as a common-law partner. It would be good to present evidence of ongoing communication between your son and his common-law partner.

Former Lancastrian

CIC opinion
Common-law partner
You are a common-law partner—either of the opposite sex or same sex—if:

•you have been living together in a conjugal relationship for at least one year in a continuous 12-month period that was not interrupted. (You are allowed short absences for business travel or family reasons, however.)

I tend to think an exclusion order will stop them living together for the 12 months unless she goes over to the UK.

worriedmom

thank you ,the reason it was interrupted was he was issued with an exclusion order he is out of Canada now for the next 12 months but lived together for 5 years in unbroken relationship

christmasoompa

Exactly, so a year apart due to an exclusion order won't count as a 'short absence due to work or family reasons' - that means something like a 2 weeks business trip! And from CIC's point of view, I'd imagine that they'd wonder why his girlfriend didn't move to the UK if he can't live in Canada.

worriedmom

ok where did you get that information? The correct definition of a Common LAW/Conjucal relationship -Questionaire 20/21 on the Sponcered Spouse IMM 5450 is a pretty good explaination to me -but thanks

christmasoompa

IMM 5450 isn't in use anymore, are you sure you're looking at the current forms?

But in any event, the forms will only give you a rough overview of the exact definition of a common-law spouse (not conjugal, that's a different category). The full definition, as on the CIC website, is:

"You are a common-law partner—either of the opposite sex or same sex—if:

you have been living together in a conjugal relationship for at least one year in a continuous 12-month period that was not interrupted. (You are allowed short absences for business travel or family reasons, however.)"

As FL has said above, an exclusion order of a year doesn't count as a 'short absence for business travel or family reasons'.

And if you wanted to get really indepth, you can look at the CIC Operating Manual for Family Class, which states the following:

“Cohabitation” means “living together.” Two people who are cohabiting have combined their affairs and set up their household together in one dwelling. To be considered common-law partners, they must have cohabited for at least one year. This is the standard definition used across the federal government. It means continuous cohabitation for one year, not intermittent cohabitation adding up to one year. The continuous nature of the cohabitation is a universal understanding based on case law. While cohabitation means living together continuously, from time to time, one or the other partner may have left the home for work or business travel, family obligations, and so on. The separation must be temporary and short.

In any event, on a practical level, is there any point in him applying for PR when he can't even enter Canada to activate it?

worriedmom

yes the questionaire is IMM 5490 my mistake So what you are saying IS the 5 years the lived together as a COMMON LAW COUPLE stands for nothing.He would still be there only for the exclusion order. He can not return to Canada for 12 months we know that and he does not lan on doing so.Is there a rule that he cannot start the process now and get all his stuff in place . Naturally it would not be sanctioned if at all until after the exclusion order has expired.
He is now getting legal advice so lets hope he gets the right advise.!! rather confusing to say the least,
THANK YOU ONE AND ALL no more from me on the subject

Siphorous

As oompa said, hopefully the professional legal advice will be useful to him.

Two things - for what it's worth:

The 'stay on proceedings' has to be restarted within one year - or they never happened. However, the offence can be charged again as a fresh offence:

...see 'staying proceedings' and point number 10:

http://justice.alberta.ca/programs_s...oceedings.aspx

Secondly:

http://www.cic.gc.ca/english/informa...nsor/index.asp

The answer to the question of:

"Can I apply for permanent residence under the Spouse or Common-law Partner in Canada Class if I am inadmissible to Canada?"

...is interesting:

"Yes. You can apply under the public policy relating to the Spouse or Common-law Partner in Canada Class. However, your application for permanent residence may not be approved if there are reasons that prevent you from staying in Canada that are not related to lack of status. For example, you may not be allowed to stay in Canada if you do not meet medical or security requirements, or if you have been convicted of a criminal offence."

As he has not been convicted - it could result in the application being delayed whilst no doubt they try to ascertain what to do given the 'stay proceedings'.

Good luck to him.

christmasoompa

Not for nothing, no, but at the time of application he must be in the common-law relationship - and give that the separation is neither 'temporary' nor 'short', I don't see how that would stand. As I said above, if his girlfriend was moving to the UK to be with him, then I think they'd qualify as it would show they still intend to live together, but from what you've said that's not the case?

But that's my point - if he's banned from Canada, then there may be no point in applying for PR anyway, as he can't 'land' within the time limit to activate it! There's no rule that says he can't apply, but he'd have to delay it to be able to 'land', and then that's more time apart which means he'd be even less of a common-law spouse.

One option that your son and his girlfriend could think about is her flying over to the UK, them getting married, and then applying as a 'normal' spouse - so it doesn't matter if they're separated then as there is no requirement for 12 months uninterrupted cohabitation for a married couple.

I'm glad that your son is getting legal advice, I definitely think he needs it.