Filipiniana News – November 2012
RHYME & REASON
When people find out that I am an
immigration lawyer in Canada, one of the most frequently asked questions is
this: “what is the easiest and fastest
way to immigrate to Canada?”
The proper response to this type of
question is that there is no short and simple answer as it would greatly depend
on the specific qualifications and circumstances of the prospective
immigrant. However, a number of
prospective immigrants (or their families) have told me that they were advised
that the fastest and easiest way to immigrate to Canada is to be sponsored by a
Canadian citizen or permanent resident spouse.
They were told that they can try to look for (or even pay) a Canadian
citizen or permanent resident to marry them, submit an application for spousal
sponsorship and voila, one can obtain permanent resident status in a few or
several months. Some are also told that
they can obtain a quick divorce from the Canadian citizen or permanent resident
spouse shortly afterwards then move on with their lives.
If this scheme worked for some in
the past without getting caught, it will be much more difficult, if not
impossible, to get away with such fraudulent exercise under the present
stricter spousal sponsorship regulations.
The scheme that these clients are
describing is what Citizenship and Immigration Canada (CIC) refers to as
“marriages or relationships of convenience.”
Since cases of marriage fraud have proliferated for many years, CIC has
decided to impose stricter regulations for this class of immigration
applications, i.e. family class applications for spouses, common-law partners
and conjugal partners.
Conjunctive to Disjunctive Test for Bad
Faith Marriage
In September 2010, CIC amended
section 4 of the Immigration
and Refugee Protection Regulations (IRPR) as a way of further discouraging
so-called marriages of convenience. Prior to September 2010, the test
was whether or not the relationship is “genuine” and was “entered into
primarily” for the purpose of acquiring an immigration benefit (conjunctive
test). Under the new regulation 4 of the
IRPR, the test has become whether the relationship is “genuine” or was
“entered into primarily” to gain an immigration benefit (disjunctive
test).
What a huge difference a single word
change could make. That is, by changing
the word “and” to “or”, spousal sponsorship applications have undergone much
stricter scrutiny not only at the visa offices but also at the Immigration
Appeal Division (IAD). In the past, it
is often enough that the visa officer or IAD board member finds that the
relationship is genuine to be convinced that it was also not entered into
primarily for immigration purposes.
With the wording change, even a
genuine relationship may now result in a refused sponsorship application if
there is a finding that the parties entered into such relationship primarily to
gain an immigration benefit. As a
result, many sponsorship applications based on genuine relationships may end up
being refused if the person being sponsored has a problematic immigration
history and the sponsorship application happens to be the only option available
for the sponsored spouse to become a permanent resident and avoid separation from
the sponsoring spouse.
For more reasonable and sympathetic
visa officers and IAD board members however, there is still room to argue that
in the case of genuine relationships, gaining an immigration benefit is never
the primary purpose for submitting a sponsorship application. It is hoped therefore, that reasonable decision-makers will prevail so that this
regulatory change will not lead to more unjust refusals of the spousal
sponsorship applications of genuine spouses and partners.
Five-Year Bar
In March 2012, the
proposed amendment to regulation 130(2) of the IRPR entered into force. This change prevents anyone “who became a permanent
resident as a spouse, common-law or conjugal partner from sponsoring a
subsequent spouse, common-law or conjugal partner for a period of five years
following the date they became a permanent resident.”
Like
the previous change, the purpose behind this regulatory amendment is to
discourage sponsored spouses and
partners from entering into a relationship of convenience to circumvent
Canada’s immigration laws, separating from their sponsor then applying to
sponsor a new spouse or partner shortly afterwards.
Conditional Permanent Residence for
Sponsored Spouses
Most recently, or in late October
2012, the CIC Minister announced yet another major change to Canada’s
immigration regulations meant to discourage marriage fraud.
The new regulations provide that the
permanent resident status of those who obtained such status after being sponsored by their spouses, common-law
or conjugal partners, will be conditional on their having lived in a legitimate
relationship with their sponsoring spouses, common-law or conjugal partners for
a period of at least two years after becoming a landed immigrant. This will apply to spouses or partners in a relationship of two years or less
and who have no children in common with their sponsor at the time they submit
their sponsorship application.
Thankfully, there are exceptions to
this conditional permanent resident status requirement. The exceptions include sponsored spouses or
partners who are able to provide evidence of abuse or neglect. “Abuse” could be either of the following: “(i) physical
abuse, including assault and forcible confinement; (ii) sexual abuse, including
sexual contact without consent; (iii) psychological abuse, including threats
and intimidation, and(iv) financial abuse, including fraud and extortion.” “Neglect” on the other hand, consists of “the failure
to provide the necessaries of life, such as food, clothing, medical care or
shelter, and any other omission that results in a risk of serious harm.”
(Please
note that the above are meant for legal information purposes only and not
intended to provide specific legal advice.
It is strongly advised that you consult with a legal professional to
discuss your particular circumstances.)
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