Skip to main content

Family Separation in the Immigration Context

Filipiniana News  -  October 2013
RHYME & REASON

Amidst the public warnings and stricter government scrutiny of this class of immigration  applications, cases of spousal sponsorship fraud still seem to abound.  I have spoken with a number of Canadian sponsors who, after learning that their foreign spouses only married them for purposes of gaining immigration status in Canada, wanted to know how they can have their sponsored spouses deported.  At this point, the sponsored spouses have already been granted permanent residence and the sponsors cannot simply revoke the three-year undertaking to support that they submitted with the sponsorship application.  As much as they would want these alleged fraudsters deported immediately, they are disappointed to learn that the legal processes which need to be undertaken before the sponsored spouse can be deported from Canada can take a long time. 

Meanwhile, there are couples in genuine, committed and loving relationships who are forced to endure prolonged family separation due to the immigration officers’ overzealous attempts at disputing the genuineness of marital/common law/conjugal relationships.  For instance, in highly-intimidating immigration interviews, visa officers rarely consider the fact that “failure” in such interviews can often be attributed to language barriers, nervousness or even cultural differences or misunderstandings.  

To avoid these unfortunate situations, it is very important first and foremost, that the prospective sponsor fully understands the implications of a spousal sponsorship undertaking aside from being  certain of the sponsored spouse’s intentions.  Unfortunately, there is no foolproof way to determine the future of any relationship and that a short-term relationship does not necessarily mean that it was not genuinely entered into at the outset.  Hence, the sponsor must be fully aware of the potential consequences if the relationship turns out to be fraudulent and/or breaks down unexpectedly within the three-year period of the sponsorship undertaking. 

Once the sponsor fully understands the nature and implications of the undertaking, the sponsorship application must not only be thorough and comprehensive, but also presented in such a way as to avoid any doubt or confusion on the part of the reviewing officer.  CIC, on the other hand, will do well to conduct further training of visa officers to facilitate a better understanding of cultural differences and personality types that will avoid a one-size-fits-all standard for determining the genuineness of married, common-law or conjugal relationships.

Separation of Live-in Caregiver Applicants and their Families


Another type of family separation which has been sadly and pervasively affecting many prospective permanent residents involve live-in caregivers and their families.  Participants of the Live-in Caregiver Program (LCP) initially enter Canada on work permits and are not allowed to bring their families at this time.  It is only after having satisfied the requirements of the LCP  (two years of full time live-in caregiving work within four years of arrival) would they qualify to apply for permanent residence for themselves and their families, which could easily take several more years to be processed.

In this type of permanent residence application, the caregiver is applying concurrently with her family members and not “sponsoring” them.  As such, they are all required to pass the medical and security clearance requirements.  Although changes to the LCP regulations removed the requirement of a second medical examination for the principal applicant caregiver, the accompanying family members would still need to undergo the medical and security checks at the permanent residence application stage.   Even if the family members are declared to be “non-accompanying dependents,” they are still required to undergo medical and security checks.  If one family member is found to be inadmissible, this would render everyone, including the principal applicant caregiver, inadmissible to Canada. 

There are all sorts of complicated scenarios that may arise from this requirement.   First and most prevalent of all, a married caregiver who has been away from her family for many years while working as an overseas worker, often ends up with a broken home – i.e. a philandering spouse and/or alienated children who refuse to finish school or become addicted to vices.   When it is time to process the family’s permanent residence applications, these family members could either refuse to undergo the required medical examinations, provide the necessary police clearances or worse, fail them for various unfortunate reasons.   For caregivers who have become estranged from their husbands, they would also need to obtain a legal separation, annulment or divorce if they want them removed from their permanent residence applications.  As these further legal processes not only take time but also drain the live-in caregiver’s extremely limited financial resources, many find themselves trapped in a situation where their permanent residence applications are long delayed or worse, denied,  for the simple reason that they and their dependents are unable to meet the additional requirements within a prescribed period of time.  

The conflict of law issues involved (e.g. the differences in Philippine and Canadian and family laws such as the lack of divorce and prohibition against collusion in annulment cases in the Philippines) could result in further complications not only in the caregivers’ permanent residence applications but also in the legal status of their marriage and family lives.  While obtaining a divorce in Canada or entering into a separation agreement with spouses may be a quick solution for some in having their permanent residence applications finalized, it is also important to be fully aware of the implications of such remedies, which could haunt the spouses even long after the permanent residence application had been granted or denied.  

The above are provided for information purposes only and not meant to be taken as legal advice.  If you have related concerns, it is highly recommended that you consult with an immigration legal professional to discuss your particular circumstances. 

***
On a personal note, I would like to send happy birthday wishes to my dearest niece Francesca (October 14) and to her mom Cora (October 31).   Take care and God bless!

The author is an immigration lawyer in the GTA and may be reached at deanna@santoslaw.ca.


Comments

Post a Comment

Popular posts from this blog

COVID-19 Updates for International Students

In the past few years, the number of international students has ballooned at a rapid pace such that they now comprise a significant portion of the temporary resident population in Canada.  In the latest report of the Minister of Immigration, Refugees and Citizenship Canada (IRCC) Marco Mendicino to Parliament, he stated that as of December 31, 2018, there were more than 721,000 international study permit holders in Canada, or more than double the number of permanent residents (321,035) admitted that year. Easing Work Restrictions At this time of COVID-19 pandemic therefore, it comes as no surprise that international students are among those hardest hit by the ongoing lockdowns and their economic consequences. Since international student fees are often double or triple the domestic tuition fee rates, one can only imagine the enormous investment that these international students have made to finance their studies and living expenses in Canada.   Hence, it is a great help th
Post a Comment
Read more

Some Tips to Avoid CIC's 'High Error Rate'

Filipiniana News – January 2015 RHYME & REASON Earlier this month, an article came out in the Toronto Star reporting the existence of a "high error rate" in the processing of immigration applications.  The article by Toronto Star reporter Nicholas Keung on 5 January 2015 states in part: The human errors — staff failing to use correct form letters, address missing documents and provide accurate timelines, among other shortcomings — could not only cost individual applicants a chance to live and work in Canada but affect the "efficiency of the system" and create unnecessary backlogs. "An important area of concerns resides with the letters. The number of request letters not sent, sent incomplete or unclear at initial stage and later on create a negative impact on both clients and the Case Processing Centre (in Vegreville, Alta.)," said an evaluation of operations at Vegreville. It was one of three internal reports obtained under an access to
Post a Comment
Read more

Temporary Residents and the Removal Process

Filipiniana News   -   October 2016 Rhyme and Reason Temporary Residents and the Removal Process Legal temporary residents in Canada   consist of those who have valid status as students, workers or visitors.   Due to the ever changing state of Canada’s immigration laws and regulations, they are often the most negatively affected to the point of losing their status due to plain ignorance, misinformation or even carelessness.   Those who may have lost their status are understandably fearful of being removed anytime soon and thrown on the next flight back to their home country.   However, misconceptions about the removal process abound and are misleading even temporary residents who may still have valid status in Canada.   For instance, there are those who are   here as visitors, workers or students whose initial permits may have expired but whose extension applications are still pending, who fear that they may just be picked up by the authorities and detained since
Post a Comment
Read more