Conjugal/spousal criminally inadmissible PR application - appeal proceedure

[tidymonkey81]

Happy New Year. This is my first post!

I'll cut to the chase. I am a 28 year old secondary school physics teacher with 4 years experience teaching in the UK. My Canadian girlfriend (in Montreal, QC) and I have been dating for 3 1/2 years and have, in the past, spent at least a year living together in London. My gf has returned to Canada (August, 2008) to continue with her studies and with the good hope of getting into a Medical college in Canada (or, if my visa/work permit app fails, the UK). We wish to live together in Canada where fees will be cheaper and as such I require a work permit to work there. I am criminally inadmissible due to a DUI, the sentence of which ended on 19th September, 2007. This is my only conviction. Thus, I can apply for rehabilitation on 19th September, 2012.

In August I travelled to Canada knowing that my inadmissibility would prevent me from getting a PR permit at that time. I hired a lawyer known to us through family who advised of a slim chance of getting a TR permit which, if given for a period greater than 6 months, could allow me to apply for a Work Permit concurrently. This had been done in the past under a particular case similar to my own. We entered the country together via the Lacolle, QC border from the States. However, as expected, the border official would not issue this TR permit. I am still considering applying for the TR permit, more officially, through the Canadian mission in London explaining our situation with the hope of getting it for more than 6 months and then going on to apply for a work permit. I am unsure how this will pan out.

I am also going to apply for a PR permit knowing that it will (eventually) get declined on inadmissibility grounds. There appears to be a route after denial of the permit whereby the applicant and sponsor can appeal the decision on compassionate grounds, and this should be done within 30 days of receiving the denial response. I am looking for any advice or experience on this matter, however I also have some particular questions.

Does the term 'compassionate' apply to myself and my gf?

Who applies? Sponsor or sponsee?

How/where is the appeal made?

There are interviews mentioned on the appeal division website. Where are these interviews conducted / who needs to be present?

I am currently not using the services of a lawyer for the sponsorship app process but would consider employing these services at the appeal stage if it might be useful. Can anyone suggest where to look?

There are other questions, but, this has been long enough already. (If it's too long I can take out the waffle and repost - please advise)

Regards,
Kevin Carter

 

[BeShoo]

It is my understanding that the humanitarian and compassionate grounds is usually granted only in cases where denying you would cause undue hardship, and usually there are children involved. I'm think that you will have to wait, because I don't see an H&C appeal succeeding for you right now.

 

[RobsLuv]

I think BeShoo is mixing up a Humanitarian and Compassionate application with "humanitarian and compassionate discretion" for allowing an appeal after a spousal PR application is refused for criminal inadmissibility. As a spouse, you don't have the ability to apply for permanent status via an H&C ap. Spouses have to use the spousal process. So you'd have to do that - be refused on grounds of criminal inadmissibility, and then your sponsor would have to go through the appeals process with hope that the appeal will be allowed on H&C grounds.

The appeal process would happen at the Immigration Appeal Division that serves the Province your wife lives in. It is her process, not yours, and she would be attending all hearings (not interviews). You may or may not be invited to participate. She has to convince them that there are compelling H&C grounds to allow you to be a permanent resident in spite of the fact that you are criminally inadmissible to Canada, and before you are eligible to apply for rehabilitated status. That's a pretty steep order. In my humble opinion, it's a long shot - and (depending on the IAD) the appeal alone can take up to a couple of years. It's also expensive as she will need a lawyer to help her with the case.

My opinion: don't waste time & money applying now for a permanent residence visa. If you can get a Temporary Resident Permit (which is what they give to people who are otherwise inadmissible to Canada when there are sufficient humanitarian and compassionate grounds to allow them to enter/stay in Canada), that will allow you to come to Canada and you can apply for a work permit in conjunction with the TRP. Problem is - even though I've had a TRP, I'm not sure how you'd normally go about getting one. I can explain more about my particular situation if you PM me. Either way, if you can't get a TRP, wait until you're eligible to apply for rehabilitated status (probably 5 years after the date on which you completed all restitution for the offence) and then, once that's secured, apply for permanent residence.

 

[BeShoo]

RobsLuv, thanks so much for the clarification. It comes down to what I was trying to say before. This case is very unlikely to succeed on an H&C appeal. ANd, I gree that the whole process would take too long and it would be a waste of time and money.

 

[Mystik1]

I think BeShoo is mixing up a Humanitarian and Compassionate application with "humanitarian and compassionate discretion" for allowing an appeal after a spousal PR application is refused for criminal inadmissibility. As a spouse, you don't have the ability to apply for permanent status via an H&C ap. Spouses have to use the spousal process. So you'd have to do that - be refused on grounds of criminal inadmissibility, and then your sponsor would have to go through the appeals process with hope that the appeal will be allowed on H&C grounds.

The appeal process would happen at the Immigration Appeal Division that serves the Province your wife lives in. It is her process, not yours, and she would be attending all hearings (not interviews). You may or may not be invited to participate. She has to convince them that there are compelling H&C grounds to allow you to be a permanent resident in spite of the fact that you are criminally inadmissible to Canada, and before you are eligible to apply for rehabilitated status. That's a pretty steep order. In my humble opinion, it's a long shot - and (depending on the IAD) the appeal alone can take up to a couple of years. It's also expensive as she will need a lawyer to help her with the case.

My opinion: don't waste time & money applying now for a permanent residence visa. If you can get a Temporary Resident Permit (which is what they give to people who are otherwise inadmissible to Canada when there are sufficient humanitarian and compassionate grounds to allow them to enter/stay in Canada), that will allow you to come to Canada and you can apply for a work permit in conjunction with the TRP. Problem is - even though I've had a TRP, I'm not sure how you'd normally go about getting one. I can explain more about my particular situation if you PM me. Either way, if you can't get a TRP, wait until you're eligible to apply for rehabilitated status (probably 5 years after the date on which you completed all restitution for the offence) and then, once that's secured, apply for permanent residence.

Can you tell me how long my case would take to be completed if my appeal is allowed on humanitarian and compassionate grounds?

 

[Naturgrl]

Can you tell me how long my case would take to be completed if my appeal is allowed on humanitarian and compassionate grounds?

Post is 14 years old.