If my spouse is Canadian, should they be listed as accompanying or non-accompanying in my EE profile?
If you are creating your Express Entry (EE) profile and want to become a Canadian Permanent Resident, or if you have already created your EE profile and have received an Invitation to Apply (ITA) from Immigration Refugees and Citizenship Canada (IRCC), you may be wondering what to do if you are married to, or in a common law relationship with, a Canadian Citizen or a Canadian Permanent Resident.
Are you married or in a common-law relationship?
After you create your account, your EE profile will ask you if you have a spouse or a common-law partner. A spouse is someone to whom you are legally married. A common law partner is someone with whom you have resided continuously for 12 months or more in a committed marriage-like relationship.
The definition of a common-law partner is in section 1(1) of the Immigration and Refugee Protection Regulations (IRPR). If you have not yet cohabitated for 12 months continuously, then you generally would not meet the definition of having a common-law partner but please book a consultation if you are unsure whether you meet the definition. You can also check IRCC’s policy interpretation for further guidance.
Failing to properly declare a common-law partner can constitute misrepresentation and there are serious consequences because undeclared common-law partners of a Principal Applicant under an economic class cannot later ever be sponsored as members of the family class. If your spouse or common-law partner is a foreign national and you fail to disclose and have your FN spouse or common-law partner examined, then that person is considered not to be a member of your family forever under Regulation 117(9)(d) of IRPR. Again, please book a consultation to get legal advice on whether you have a spouse or common-law partner according to Canadian Immigration laws.
If you are sure that you do have a spouse or common-law partner and if you have answered to say that you do have a spouse or a common-law partner, the Express Entry system will also ask you to declare whether your spouse or common-law partner will accompany you to Canada.
If married or in a common-law relationship with a Canadian, are they accompanying?
For those of you who are married to a Canadian citizen or Permanent Resident, the question of whether your spouse should be listed as accompanying or non-accompanying can be confusing.
It helps to look at the Ministerial Instructions for Express Entry. Section 10.3 of the Immigration and Refugee Protection Act (IRPA) allows the Minister to give instructions about the Express Entry system, the criteria for eligibility, and the points awarded under EE.
The Ministerial Instructions respecting the Express Entry system, at definition 1, state:
“accompanying spouse or common-law partner”, in respect of a foreign national, means the foreign national’s spouse or common-law partner who is accompanying him or her to Canada and is not a Canadian Citizen or a permanent resident.
Therefore, if your spouse or common-law partner is a Canadian, then they are not an accompanying spouse for the purpose of your EE application.
Keep in mind that Canadians are already Canadians so they are not included as an applicant in your Express Entry profile but they do need to be properly declared. Your Canadian family members also are taken into account in terms of the settlement funds that you need to show if you are applying under the Federal Skilled Worker category.
Your Canadian spouse or common-law partner is unaccompanying
Note that your Canadian spouse or common-law partner may already be living inside-Canada and the proper answer for your EE application is that you are married or in a common-law relationship and that your Canadian partner is unaccompanying. Even if your Canadian spouse or common-law partner is not currently living inside Canada and is physically coming with you to Canada when you land, the proper answer is still that your Canadian spouse or common-law partner is unaccompanying.
IRCC uses the term “accompanying spouse or common-law partner” in a very specific way for the purpose of your EE application. The definition under the Ministerial Instructions respecting the Express Entry system is that accompanying spouses or common-law partners cannot be Canadian citizens or permanent residents.
You still must provide all the personal details of your Canadian spouse or common-law partner, their contact details, and their personal history.
What if you incorrectly said your Canadian spouse or common-law partner is accompanying you and you need to change your answer after you received an ITA?
If you completed your EE profile and managed to get a Provincial Nominee Program (PNP) nomination with 600 points and then received an ITA, you will notice when you log into your account that the field that asks if your spouse is accompanying is greyed out and seems like it cannot be changed.
If you need to correct your answer, never fear, there is a way to make a change. Once you log in to your EE main page, you can click "modify family information." The box that says “modify family information” will allow you to change your answer and indicate that your Canadian spouse or common-law partner is unaccompanying.
Please be very careful about changing your answers in your EE profile, especially if you had mistakenly relied upon your spouse or common-law partner for points for their language scores, their education, Canadian work experience, or if you mistakenly thought you could get points for your spouse’s sibling in Canada.
For example, if you had incorrectly listed your Canadian wife as accompanying in your EE profile, and you thought you could claim 15 points because your Canadian wife has a Canadian sibling who is over 18 years old and is also a Canadian citizen living in Canada, that could affect your eligibility if your Comprehensive Ranking Score (CRS) goes below what the minimum CRS was for that draw or if the change in your CRS would have made you ineligible for the PNP draw if you received a PNP nomination.
You have an obligation to tell the truth and an obligation not to misrepresent.
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About the author:
Alicia Backman-Beharry
Canadian Immigration Lawyer