Family Class: Determining Membership in the Spouse (or Common-law Partner) in Canada Class

This section contains policy, procedures and guidance used by IRCC staff. It is posted on the department’s website as a courtesy to stakeholders.

A foreign national meets the membership requirements of the spouse or common-law partner in Canada class [R124] if all of the following apply:

• if they are the spouse or common-law partner of a sponsor (as defined in R130) and cohabit with that sponsor in Canada (Common-law partners must have cohabited for at least one year [R1(1)]
• if they have temporary resident status (this requirement may be waived under the spousal public policy)
  • Appendix A: See lack of status
• if they are the subject of a sponsorship application
• if they are not excluded from the class under R125 concerning excluded relationships

Lack of status
For the purposes of the current public policy only, persons with a “lack of status” refers to those in the following situations:

• persons who have overstayed a visa, visitor record, work permit or student permit;
• persons who have worked or studied without being authorized to do so under the Act;
• persons who have entered Canada without the required visa or other document required under the regulations;
• persons who have entered Canada without a valid passport or travel document (provided valid documents are acquired by the time CIC seeks to grant permanent residence).

On this page

• Other requirements
• Lawful temporary resident status in Canada
• Applicants who leave Canada before a final decision is made on their application for permanent residence
• Work and study permits

Other requirements

Other requirements applicable to a foreign national, who applies to remain in Canada as a member of the Spouse or Common-law Partner in Canada Class:

• a foreign national is not considered a spouse or common-law partner if the marriage or common-law partnership is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act [R4]
• a foreign national is not considered a spouse or common-law partner if a new conjugal relationship was begun after a previous marriage or common-law partnership with that person was dissolved primarily to acquire any status or privilege under IRPA [R4.1]
• a foreign national must not be the subject of enforcement proceedings or a removal order for reasons other than “lack of status” (see definition of “lack of status” under the spousal public policy). Although most persons who are under a removal order or facing enforcement proceedings for reasons other than “lack of status” are eligible for initial consideration under the public policy as they meet the criteria in R124, they cannot be granted permanent residence as they will be found inadmissible in the second stage of processing
• a foreign national becomes a permanent resident if they meet the requirements of R72
• a foreign national and their family members must meet admissibility requirements (R72), however, they are exempt from inadmissibility on health grounds due to excessive demand on health and social services
• a foreign national must have a valid passport or travel document by the time permanent residence is granted (R72)

Lawful temporary resident status in Canada

To be eligible to become members of the class, applicants in the spouse or common-law partner in Canada class must have valid temporary resident status on the date of application and on the date they receive permanent resident status.

Exemption from requirement to have temporary resident status

The spousal public policy facilitates the processing of genuine out-of-status spouses or common-law partners in the spouse or common-law partner in Canada class who meet the other eligibility requirements of the class. Applicants who are covered under the public policy should be processed according to the provisions of the spousal public policy.

Applicants who do not have temporary resident status and who are not eligible under the spousal public policy can be removed at any time. Further, the spousal policy does not change the requirement to seek necessary authorization to visit Canada or to work or study here.

If the applicant cannot be exempted from the legal temporary resident status requirement under the spousal public policy they may request an exemption from the requirement to have temporary resident status in Canada on Humanitarian and compassionate grounds.

See Humanitarian and Compassionate considerations for applicants in the spouse or common-law partner in Canada class.

What is “lack of status” under the public policy?

For the purposes of the spousal public policy, persons with a “lack of status” refers to those in the following situations:

• persons who have overstayed a visa, visitor record, work permit, study permit or temporary resident permit
• persons who have worked or studied without being authorized to do so as prescribed by the Act
• persons who have entered Canada without a visa or other document required by the Regulations
• persons who have entered Canada without a valid passport or travel document (provided valid documents are acquired by the time CIC seeks to grant permanent residence)
• persons who elude examination upon entry to Canada. In these cases, officers should assess the bona fides of the relationship. If it is deemed to be a relationship of convenience, the application should be refused. If the relationship is deemed bona fide, the application should not be refused on the grounds that the person did not present himself at the port of entry for examination upon entry.