SECTION 39 OF THE IMMIGRATION AND REFUGEE PROTECTION ACT – Financial Refusals
People often believe that Canadian immigration laws are more lax than those of our southern neighbour, the United States, but in fact they are not. People are surprised that not only do we have similar grounds of inadmissibility but that these grounds can lead to refusals.
For instance, it appears that in the United States – “Under section 212(a)(4)(A) of the Immigration and Nationality Act (INA), an alien who is considered “likely to become a public charge” is inadmissible to the United States” – (see link :What Is an Immigration Public Charge – HG.org https://www.hg.org/legal-articles/what-is-an-immigration-public-charge-40772),
In Canada, we have section 39 of the Immigration and Refugee Protection Act which states:
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.
It is a broad section, which we have seen lead to refusals in Spousal Sponsorships, which do not need to meet the Minimum Necessary Income requirements unlike sponsorships of parents and grandparents.
In Spousal Family Class sponsorships when the applications are refused the usual way to re-dress the problem is through an appeal to the Immigration Appeal Division of the Immigration and Refugee Board, if it is an overseas application. However, if it is an inland Spousal Family Class sponsorship refusal, you can seek the intervention of the Federal Court by filing an Application for Leave and Judicial Review at the Federal Court, or perhaps a Temporary Resident Permit, which as explained in an earlier blog is a tool provided in the legislation for dealing with inadmissibilities. In either overseas or inland spousal sponsorships, re-filing the sponsorship may also be a reasonable option, depending on the details of the case.
If you are thinking of sponsoring your spouse, our advice is that while you do not need to meet the MNI (minimum necessary income) requirements of the Act, you could still be excluded from being able to sponsor if you are “in receipt of social assistance for a reason other than disability”. It is therefore prudent to be cognisant of section 39 of the IPRA, and you should submit evidence of your financial good health when filing a sponsorship. Getting proper legal advice is always a good option as well.