Court rules wider perspectives needed to evaluate cohabitation status

Court rules wider perspectives needed to evaluate cohabitation status

The Court of Second Instance (TSI) has suggested broader considerations as it overruled the Secretary for Security’s decision nullifying a married immigrant’s visa due to the absence of cohabitation.

In announcing the verdict, the court emphasized the secretary’s judgement was insufficiently wide and he was, therefore, unable to rule that the married couple was no longer cohabiting.

A local resident, whom the court referred to as A, had been living and working in Macau, “revolving their life around Macau,” as the court put it.

A Canadian citizen, whom the court referred to as B, married A in 2016. The two decided to relocate to Macau. The next year, B obtained a retention permit to stay in Macau.

In February 2020, the couple traveled to Canada to visit B’s father, who suffered from diabetes. They decided that B would return to Macau in July for work, with A remaining in Canada to care for B’s father. In March 2021, A returned to Macau.

In November 2020 the secretary refused B’s application for an extension of the spousal visa, on the grounds that the couple no longer lived together. In response, B explained that A had remained in Canada because of the pandemic and need to care for the father-in-law. The secretary did not consider this explanation sufficient. The official did not anticipate A’s foreseeable return when the application was reviewed.

As the visa was terminated, B filed an appeal to the court, citing Civil Code Article 1534 to prove that couples living in different countries are, in fact, legally permitted, if they have no subjective intention to separate.

The court stressed the secretary did not prove the couple were in a state of legal separation when the official refused the visa application.