Learning moments – Interplay of sponsorship eligibility under s.133 of IRPR, and financial admissibility under s.39 of IRPA

From: IMEDA Immigration Education Alliance

Hello, fellow practitioners! Today’s question deals with the interplay of sponsorship eligibility under s.133 of IRPR, and financial admissibility under s.39 of IRPA.

Question

I am confused about whether or not to agree to represent a young married couple for a sponsorship application. The sponsor receives Ontario Disability Support payments (ODSP) and lives with his parents who are financially comfortable. He doesn’t have any income other than that. His wife is a computer systems analyst from the United States.

I am not clear about the rules in this situation. Is there any point in accepting this case? I don’t want to take the case if there is no merit or hope of success in it.

Answer

This is an interesting scenario, and one that comes up from time to time, so it’s good to review the legislation in order to advise clients in the future.
Let’s first look at the basics.

Sponsorship eligibility is defined under s.133 of IRPR, which has as one of its criteria the following:

133 (1) A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor…
(k) is not in receipt of social assistance for a reason other than disability.

Assuming that the sponsor meets all the other criteria outlined in s.133, he’s eligible, and we see from this Regulation that his disability income does not in fact bar him from sponsoring his wife. He would be barred if his income came from, for example, general welfare payments instead of disability payments. (And keep in mind that even that criteria could potentially be overcome by requesting humanitarian and compassionate discretion, if you had a good fact scenario to support the request.)

However, this might not be the end of the story when it comes to consideration of the couple’s financial situation. Recall that all applicants for permanent residence must pass admissibility requirements. One of those requirements is financial admissibility under s.39 of IRPA which states as follows:

39 A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made.

So it is clear that even if the sponsor passes eligibility requirements and the application moves forward, financial considerations could be examined by an officer under the applicant’s admissibility assessment.

It is possible that the officer might not even raise the issue in the first place. However, should the officer believe that the applicant may be financially inadmissible, the officer is obliged to send a procedural fairness letter to confront the applicant with their concerns and provide an opportunity to respond.

Depending on the circumstances of your case, you might respond to the procedural fairness letter in two ways:

First, if you believe the applicant is able to support herself in Canada despite her sponsor’s disability, you can provide evidence concerning this. While the scenario does not give us a lot of information about the applicant, we do know that she is in the IT sector in the United States. Her English is probably fluent, and her occupation likely does not require any re-qualification here in Canada. All of this may mean that she is very employable in Canada, and especially if she has a good employment history in the US, there is a logical inference that she won’t have much trouble finding similar work in Canada. She might also have good savings and assets, which is something you should explore. The question also mentions that the sponsor’s parents are financially comfortable, so I would explore and provide evidence of their willingness to support the young couple during the applicant’s transition to Canada.

Second, if you believe the applicant is unable to support herself in Canada, you could concede that s.39 IRPA applies, but request a waiver of this inadmissibility on humanitarian and compassionate grounds. You would have to explore with the couple what grounds might exist in their scenario to support such a request. For example, maybe the couple are financially unstable right now but they have an excellent plan to get on track, like starting a business together or taking an education program that will lead to good earning potential. Or maybe the sponsor’s disability puts him in a sensitive situation where he really needs the emotional support of his wife.

So definitely this is a very viable case, depending on your underlying facts, and you can confidently accept this retainer. It’s also a situation where your skills as an advocate can make a real difference to this couple. I also applaud you for exercising professional ethics in not wanting to accept payment for a case that you believed might have been hopeless, and in seeking to increase your competence in this area through reaching out for information.