Canada: Spike in refusals for express entry applications where spouse is shown as ‘non-accompanying'
Canada's immigration agency is increasingly rejecting 'Express Entry' applications for permanent residency, or is issuing procedural fairness letters (PFLs) in cases where applicants have declared their spouse as 'non-accompanying' often with the intent of improving their Comprehensive Ranking System (CRS) score.
In many instances, the spouse was already residing in Canada – working or studying.
It is not just those outside Canada who can apply to become permanent residents under the Express Entry route – it is also open to those already in Canada such as on temporary work visas.
Express Entry is Canada's point-based mechanism used to manage immigration applications for skilled workers who want to become permanent residents.
Based on various parameters such as age, education, French language proficiency etc, candidates are given a Comprehensive Ranking Score (CRS). Post which, they are placed in the Express Entry pool and ranked relative to each other. Periodical draws are held and those attaining the cut-off CRS score get an invite to apply for permanent residency.
When an individual applies without including his/her spouse ( shown as 'non-accompanying spouse'), the individual is assessed as a single applicant, which the point distribution system tends to favour.
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A single applicant can get up to 40 more points under the 'Core Human Capital' section because spouse-related sub-factors are not considered. Being a single applicant helps boost scores if the spouse's credentials (education, language, etc) are weak and would drag down the scores.
Kubeir Kamal, a regulated Canadian immigration consultant (RCIC) told TOI, 'This tactic of declaring a spouse as 'non-accompanying' has unfortunately become widespread, particularly among applicants who are already residing in Canada with their spouse on temporary status (eg: one is on a closed work permit and the other is on an open spousal work permit).
In such cases, Immigration Refugees and Citizenship Canada (IRCC) is rightly scrutinizing whether the spouse was ever genuinely intended to be excluded.
'
Added Manish Kapoor, a regulated Canadian immigration consultant, 'IRCC has increasingly taken the position that if an applicant's spouse is physically present in Canada, it implies an intention to permanently reside. As such, declaring the spouse as non-accompanying may be interpreted as a misrepresentation under sections 16(1) and 40(1) of the Immigration and Refugee Protection Act (IRPA), which require applicants to answer truthfully and prohibit the withholding of material facts.
'
Kamal cautioned that if both partners are living and working in Canada, declaring a spouse as 'non-accompanying' without a valid and well-documented reason such as custody arrangements, or family obligations, can be seen as a deliberate misrepresentation, which in addition to refusal of the application can lead to a five-year ban from re-applying.
'If spouse is outside Canada, you may still list them as non-accompanying if it's truthful and justifiable—for instance, owing to custody of children or job obligations of the spouse in the home country.
In this case, a strong letter of explanation and supporting evidence is required. Further, intentions must be aligned with the declaration: If you say they're non-accompanying, don't sponsor them immediately after landing!,' said Kamal.
'Historically, similar applications were approved without issue, raising concerns about consistency in decision-making in the application of policy. Many applicants argue that they have valid reasons for listing their spouses as non-accompanying and have provided clear explanations, yet refusals continue to rise.
It will be important to watch how the Federal Court interprets the concept of an 'accompanying spouse,' particularly as an increasing number of applicants seek judicial review.
The outcome of these cases may set a significant precedent for future immigration decisions,' added Kapoor..
Traditionally, India has been a top-source country for those getting invitations to apply for permanent residency under the Express Entry system.
In 2023, nearly 52,100 Indians were invited to be permanent residents (bagging 47% of the total invites). Country-specific data for 2024 is not available.
Of late, the modalities of the Express Entry mechanism have changed. All-program or general draws have become a rarity. Of late, IRCC has issued invitations to become permanent residents extensively based on category based Express Entry draws such as French‑language proficiency, Canadian Experience Class (CEC), Provincial Nominee Program (PNP), or occupational specific draws such as health‑care, education, and trades.
Further, from March 25, candidates no longer earn additional Comprehensive Ranking System (CRS) points for holding a valid job offer – this change was done to prevent fraud through illicit sales of 'Labour Market Impact Assessments'.
Immigration experts point out that there are bonafide ways to improve the CRS score such as improving language results, obtaining proficiency in French or even by exploring PNP options.
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