Non-citizens can obtain permanent residency in Canada under the family-reunification category in the Immigration and Refugee Protection Act (IRPA). Canadian citizens or permanent residents can apply to sponsor their non-citizen spouse, common law or conjugal partner, or other relatives to move to Canada under regulations. However, the regulations require spousal-sponsorship applicants to prove to visa officers that, on a balance of probabilities, their relationship is ‘genuine’ and not ‘entered into primarily to acquire any status or privilege under the Act’. The bad-faith clause, dubbed under regulations, is meant to prevent so-called marriage fraud.
The concern about the fraudulent practices is that applicants might trick vulnerable Canadians into marriage to obtain permanent residency under the family-reunification program and subsequently abandon them.
The family-reunification category codified under the IRPA is one pathway to permanent residency in Canada. As the name suggests, the family class system permits Canadian citizens or permanent residents to sponsor their non-citizen spouse, common law, or conjugal partner under the Immigration and Refugee Protection Regulations (IRPR). If a visa officer approves the sponsorship application, the non-citizen spouse obtains permanent residency.
A spousal-sponsorship application must satisfy the bad-faith clause under s. 4(1) of the IRPR. When assessing the genuineness of a marriage, the visa officer will evaluate whether a wedding took place by reviewing photographs, certificates and other documents. If the couple is common-law, the officer will review documentation proving cohabitation and, in some instances, conduct interviews and occasionally surprise home visits.
Conjugal relationships, on the other hand, are an exception that only applies when marriage or common-law partnerships are not possible. Evidence must be provided that shows significant commitment, notwithstanding that the couple did not get married and do not cohabitate. This may include insurance policies or estates showing that they have named each other as beneficiaries, documents showing that they hold joint ownership of possessions, and documents showing that they hold joint expenses or shared income. Ultimately, a Canadian visa officer exercises their discretion to approve or refuse the application.
In 2010, under the direction of the then Immigration Minister Jason Kenney, IRCC increased the number of marital, common-law, or conjugal relationships to be excluded on the grounds of bad faith. In other words, an application can be rejected if it was genuine but entered into primarily for immigration purposes or if it was deceitful but not for immigration purposes. The onus lies on the applicant to prove that the relationship was in good faith on a balance of probabilities.
But this poses a risk of a prejudicial effect on many cultures, including our own in Bangladesh, where there are practices of arranged marriages, and in many cases, families try to find a bride or groom well-established abroad. Immigration prospects are a vital factor to be considered. So, it does not make sense to target couples who marry to start a life together.
In 2011, The immigration department introduced two regulations that further tightened spousal sponsorship as a pathway to permanent immigration.
First, a five-year sponsorship restriction for sponsored spouses was introduced, beginning on the day they are granted permanent residence, to deter the “revolving door” of family status immigrants coming to Canada.
Second, the controversial conditional permanent residence (CPR) provision requires a two-year cohabitation requirement for newcomers sponsored by their spouses. However, this controversial provision was repealed after the Liberal party took over the office in 2015. The provision fuelled widespread concern as it raised vulnerabilities among victims of domestic abuse.
The spousal-sponsorship program prevents family class dependents from becoming the government’s fiscal responsibility in two ways.
First, it disincentivizes participation in the program because applicants are subject to the undertaking requirement. The undertaking ensures that the incoming person’s financial responsibility rests on the sponsor.
Under regulations, a sponsor must undertake to become financially responsible for spouses for at least three years. This means that the sponsor ensures that the family members are supported so they will not require social assistance from the government.
If social assistance payments are made, the sponsor agrees to repay the government in full. Once this undertaking is in force, the sponsor cannot revoke it for any reason, including relationship breakdown, abuse, or fraud. If sponsors are deemed to have defaulted on their undertaking, they will not be allowed to sponsor other family members until they have repaid the government.
The second way the program prevents unwanted costs on the government is by requiring sponsors who immigrated to Canada themselves to disclose any dependents in their initial immigration application.
That way, immigration officials can assess the risk of any future financial liability before even approving the primary applicant. In addition, section 117(9)(d) of the IRPR provides that the failure of a sponsor to disclose a dependent when they applied for permanent residency will result in those undisclosed dependents being excluded from the family class in the future.
The obligation to disclose begins when the application is filed and continues until permanent residence is granted.
Further, the program bars sponsorship applications from individuals ‘who are on social assistance, in default of child or spousal support, already under IRPA, or undischarged bankrupts’. Anyone who poses a financial risk to the government is thus not encouraged to apply to this program.
Marriage fraud further weakens the ability of the government to prevent the immigration of individuals presumed to pose a financial risk. In addition, sponsored spouses who escape from their partners may not have the economic and social support guaranteed by a sponsor. Thus, such spouses are viewed as more likely to amount to a long-term financial burden on the government.
References:
- Immigration and Refugee Protection Act (S.C. 2001, c. 27)
- Immigration and Refugee Protection Regulations (SOR/2002-227)