Can a woman who does not have status stay in Canada if her child is born here?

Just because a woman has a child born in Canada does not mean that she can stay here. If she does not have status in Canada, she has to make an application for permanent resident status, which must be approved for her to be able to stay. Having a Canadian child may help her application for permanent resident status, but it does not guarantee approval.

Note: This answer is provided by Kristin Marshall, LL.B, past Immigration Staff Lawyer for Downtown Legal Services, Toronto.

There are two types of applications for permanent resident status.

Spousal Sponsorship

This type of application is made if a woman is being sponsored by a spouse, common-law spouse or conjugal partner who is a Canadian citizen or a permanent resident.  It can be made from inside or outside Canada.

The relevant application for someone without status in Canada is called a “Spouse or Common-law Partner in Canada class”, which is more commonly referred to as an inland spousal sponsorship.  If Immigration does not have any concerns about whether the relationship is genuine (and if there are no medical issues or criminal convictions), the application will usually be approved. There is a real range in processing times, with the average being between 12 to 24 months.

In circumstances where there are no children or the relationship has existed for less than two years, however, Immigration may only grant conditional approval for permanent residence for a period of 2 years.  This allows Immigration to see whether the relationship is a ‘real” one (ie not a marriage only for the purposes of immigration) before final permanent resident status is granted.

There are rules about when an inland spousal sponsorship application can be made. For example, if Immigration has already started removal proceedings against the person (because they are aware that the person is out of status — if they were allowed to stay for a specific amount of time, as a visitor, but stayed longer — or did not leave Canada when told to), making an inland spousal sponsorship may not stop the person’s removal from Canada.

Once it is made, an application cannot be converted from an inland sponsorship to an “overseas” sponsorship (which is what it is called if it is made outside Canada). A new application would have to be made outside Canada, with a new $550 fee to be paid, so it is best to get legal advice before making an inland application.

Humanitarian and Compassionate Application (H & C)

The other type of application for permanent resident status from within Canada is called a “humanitarian and compassionate” application, commonly referred to as an H & C. This type of application is less straight-forward than a spousal sponsorship because there are many factors that Immigration can consider.

Further, an H & C application (or an application for permanent residence based on humanitarian compassionate grounds) is a request for an exception to the rule that immigrants to Canada must apply for permanent residence from outside Canada. As a result, to succeed, Immigration takes that view that it will only approve H & C applications for permanent residence within Canada in exceptional circumstances.

And, perhaps the most important point is that making an H & C application does not allow a woman without status to remain in Canada while she is waiting for a decision. Immigration may decide to remove her from Canada before her H & C is considered.

Once again, it is really important that she get legal advice when considering making an H & C application.

Having a Canadian child does not guarantee the success of an H & C application, but it may make a difference.

Citizenship and Immigration Canada has published guidelines that give officers a list of factors to consider at http://www.cic.gc.ca/english/information/applications/handc.asp? that can be helpful to review.

In general terms, immigration considers two important factors: establishment and hardship. If there are children, their best interests are considered in the context of these two factors. (Note: this is a different test than the best interests of the child test found in the Children’s Law Reform Act, although the principles are similar.)

Establishment:

The issue of establishment in Canada includes many factors, for example, how long a person has lived in Canada, how involved they are in their community, whether they are working and/or volunteering, and the extent to which they have become integrated into Canadian society.

The existence of children often helps to strengthen an applicant’s establishment in Canada.  The older the children are and the more they are integrated into the community the greater the chance of success.

For example, if the child was born in Canada, has only ever lived in Canada and is now in grade 6, the argument that the parent is established in Canada is greater than if the child is a newborn and has not really participated in society.

Proof of the child’s friendships and participation in school or extracurricular activities also helps demonstrate establishment.

Employment and volunteer activities on the part of the adult are viewed favourably, whereas reliance on social assistance is generally taken to indicate a lack of establishment.

Hardship:

The other aspect of an H & C application is the hardship that would result to the applicant (or her children) if she had to return to her country in order to apply for permanent residence.

Hardship can involve separation from the community in Canada (family/friends, school, faith community, volunteer work or employment) or past hardship that has been experienced, such as domestic violence.

It can also refer to difficulties that would be experienced in the country of origin (human rights abuses, lack of adequate medical or health care or education, or discrimination against girls/women).

In some cases, women have experienced domestic violence in their home country.  This can be relevant information for an H & C application, and in some cases, the past abuse could also form the basis of a refugee claim, because her fear of her abuser is still present, and she does not feel that her government (or the police in her country) can protect her.  Recent changes to the law have made it necessary for a woman to choose between making a refugee claim or making an application for permanent resident status on H & C grounds.  She cannot make both applications at the same time.  It is very important that a woman discuss her situation with a lawyer to get legal advice about what is best for her.

Best Interests of the Child:

Immigration must consider what is in a child’s best interests when making a decision on an H & C application that refers to a Canadian child.

Best interests takes into account both establishment and hardship, outlined above. If the child has a particular medical condition that is best treated in Canada, or would be life-threatening outside Canada, this would demonstrate hardship for the child as well as establishment, if s/he is currently receiving effective treatment in Canada.

If a child has access to a parent that s/he does not live with, separation from this person if the application is refused can also constitute hardship.

Even though Immigration must consider what is in a child’s best interests, overall, it is just one factor among many, and so simply the existence of a Canadian child who would rather stay in Canada will not always result in a successful H & C application.

If you are supporting a woman who does not have legal status in Canada but whose children do, you can assist her by providing basic legal information about her rights and obligations and can then refer her to a lawyer who does immigration law. Ideally, that lawyer will also be familiar with family law, since the two can intersect and overlap.

Depending on the woman’s situation, she may qualify for legal aid. You may also be able to assist her in obtaining initial legal advice by providing her with a 2-hour certificate or by connecting her with Duty Counsel at family court.

There may also be community resources that can also be of assistance. To access the community legal clinic system, enter the woman’s postal code in Legal Aid Ontario’s website at http://www.legalaid.on.ca/en/contact/contact.asp?type=cl. Legal clinics that do not practice family or immigration law often have referral lists of lawyers that they recommend.

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