Stumbling Blocks to Family Reunification

Filipiniana News  -  May 2016

RHYME & REASON

Stumbling Blocks to Family Reunification

One of the main objectives of Canada's immigration system is family reunification.  Hence,  priority is given to family class sponsorships and the automatic inclusion of spouses and dependent children in most permanent residence applications.  Sadly however, this objective is often thwarted by human weaknesses or bureaucratic limitations.

For example, despite government warnings and stricter scrutiny of spousal sponsorship applications, sponsorship fraud still persist.  I have met with some 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.  Sadly, sponsors realize too late that if the sponsored spouses have already been granted permanent residence, the sponsors cannot simply revoke the multi-year undertaking that they signed as part of 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 quite 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’ sometimes 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 sponsors fully understand the implications of a spousal sponsorship undertaking aside from being  certain of the sponsored spouses’ intentions.  Unfortunately, there is no foolproof way to determine the future of any relationship.   Nor is it necessarily the case that a  short relationship  was not genuine when it started.  Hence, sponsors 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/IRCC, 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 assessing the genuineness of marital, common-law or conjugal relationships.

Live-in Caregiver Applicants and their Families

Lengthy delays in achieving family reunification is an almost universal complaint among live-in caregivers and their families.  As is well-known, participants of the Live-in Caregiver Program (LCP) initially enter Canada on wor permits and are not allowed to bring their families at the outset.  It is only after having satisfied the requirements of the LCP  (i.e. two years of full time live-in caregiving work within four years of arrival) will 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.  This is so even if the family members are declared to be “non-accompanying dependents.”   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 and/or unjust scenarios that may arise from this ground of inadmissibility (arising from the inadmissibility of a family member).   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 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 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 appear to 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 legal remedies.  These implications could haunt the spouses even long after the permanent residence application had been granted or denied.  

These are just some examples of situations when serious family reunification issues may be at stake in an immigration context.  None of the above is meant as legal advice.  If you find yourself in a similar situation, it will be best to discuss your specific concerns with an experienced legal professional to avoid facing possibly bigger and more complex problems in the future.  

The author is a Canadian immigration lawyer and may be reached at deanna@santoslaw.ca.