Filipiniana News – February 2013
RHYME & REASON
A recent series of articles in the
Toronto Star dealing with experiences of victims of spousal sponsorship fraud
prompted me to revive this topic that I have discussed a few times in this
column. Sadly, these stories and even
some comments from readers reveal a continuing lack of knowledge and/or
misunderstanding of the complex and ever-changing immigration laws, including
those involving spousal sponsorships.
There are two types of spousal
sponsorship applications. The first is the outside Canada sponsorships that are
initially submitted to the Citizenship and Immigration Canada (CIC) Case
Processing Centre in Mississauga, Ontario and then forwarded to the visa office
where the applicant spouse is a resident or citizen. The second is the inland application under
the Spouse or Common-Law Partner in Canada class that is submitted to the CIC
Case Processing Centre in Vegreville, Alberta.
Depending on the sponsor and the applicant’s situation, there are pros
and cons in choosing either option which are best canvassed with an experienced
immigration advisor.
Let me also clarify that contrary to
common misconception, spouses of live-in caregivers are not “sponsored spouses”
but are concurrent applicants if they are included as accompanying dependents
in the LCP permanent residence applications.
These newspaper accounts of
sponsorship fraud actually describe a scheme that CIC has long been referring
to as “marriages or relationships of convenience.” Due to the increased incidence of these
types of fraud, CIC has imposed stricter regulations for this class of
immigration applications, i.e. family class applications for spouses,
common-law partners and conjugal partners.
As discussed in a previous column, these changes are as follows:
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 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 this single word 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
spousal sponsorship applications from 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 new CIC regulations provide that the permanent resident status of
those who were 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.
However, 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 necessities 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 information are
being provided for educational 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.
The author is a Canadian immigration
lawyer and may be reached at deanna@santoslaw.ca.
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