Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations

Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

There has been developing jurisprudence on the disjunctive nature of IRPR r. 4(1), including a recent Federal Court certified question on whether IRPR 4(1)(a) is ultra vires the Immigration and Refugee Protection Act (“IRPA“), which provides that:

The objectives of this Act with respect to immigration are to see that families are reunited in Canada.

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Financial Requirements to Sponsor Family Members

People wishing to sponsor family members to immigrate to Canada generally have to meet numerous requirements.  These include, but are not limited to:

  • Not be subject to a removal order;
  • Not be detained in any penitentiary, jail, reformatory, or prison;
  • Not be in default in respect of any previous undertaking;
  • Not be an undischarged bankrupt;
  • Not be in receipt of social assistance other than for a disability; and
  • Meet the minimum necessary income requirements.

The Minimum Income Requirement

The financial requirement for sponsors is necessary to ensure that sponsors can support their sponsorees for the duration of their sponsorship undertaking.  People sponsoring spouses, common-law partners, conjugal partners, or dependent children are exempted from this requirement.

For all other family sponsorship applications, the sponsor’s income must meet the minimum necessary income requirement as identified annually by Statistics Canada in Low Income Cut Off levels (“LICO”).  The sponsor must meet the cut-off to support all members of a sponsor’s own family, the sponsored person, and the sponsored person’s family members.  This includes non-accompanying family members.

The current LICO rates for 2011 outside of Quebec are:

Size of Family Unit LICO
1 person (sponsor) $22,229
2 people $27,674
3 people $34,022
4 people $41,307
5 people $46,850
6 people $52,838
7 people $58,827
Each additional person $5,989

Excluded from these amounts include, amongst other things, any amounts paid to the sponsor under the Employment Insurance Act, other than special benefits.

The spouse or common-law partner of a sponsor may co-sign an undertaking to help meet income requirements by pooling resources.  Other family members may not co-sign.  A co-signer must meet the same requirements and are subject to the same bars as the sponsor.  They assume the same obligations as the sponsor and become jointly and severally or solidary liable if there is default.

Pursuant to OB 324, and resulting from the Federal Court’s decision in Dokaj v. Canada, where a family member is added to the sponsor’s family during the processing of a sponsorship application, then the changes to both the size of the family unit and the family’s income must be considered where the additional family member is a spouse, common-law partner, or conjugal partner who becomes a co-signer.

Changes in Circumstances

It is extremely important to note that rule 133(1) of the Immigration and Refugee Protection Regulations requires that a sponsor has to be in compliance with the income requirements from the day on which the application is submitted until the day on which a decision is made on the application.

Accordingly, a co-signer may not be added to the sponsorship application if the sponsorship was already assessed and at that assessment, the sponsor failed to meet the sponsorship requirements.

Summary of When a Co-Signer can be Added to an Existing Sponsorship Application

The following is from OB 324, and offers a useful summary for when co-signers can be added to existing sponsorship application.  It also demonstrates how rule 133(1) of the Regulations are interpreted.

  1. In all cases, the sponsor must have met all sponsorship eligibility requirements at the initial sponsorship assessment.
  2. In all cases, a co-signer may not be added after a negative (Not Met) recommendation has been rendered on the initial assessment.
  3. In all cases, a co-signer may not be added after a negative (Not Met) recommendation has been rendered on a reassessment.
  4. CPC-M will add a co-signer after the initial assessment, even if the sponsor did not choose to include the co-signer at initial filing of the sponsorship application, as long as the sponsor met the original financial assessment and all other eligibility requirements on his own.
  5. If the sponsor is given the opportunity to add a co-signer following a change in circumstances and chooses not to do so and a negative recommendation is rendered, on a reassessment, the sponsor cannot then request to add a co-signer.
  6. Although the facts in the Dokaj case were specific to the sponsorship of parents, the re-interpretation of the regulations, allowing the addition of the co-signer after filing, will apply to all family class categories where the financial test is applicable.

 


The Atlantic Immigration Pilot Program

In March 2017 the Government of Canada created several programs to encourage immigration to Eastern Canada through the Atlantic Immigration Pilot Program (the “AIPP“).

The AIPP consists of the following three immigration programs.

  • Atlantic High-skilled Program (“AHSP“)
  • Atlantic Intermediate-skilled Program (“AISP“)
  • Atlantic International Graduate Program (“AIGP“)

In 2017 a maximum of 2,000 applications will be accepted, unless Immigration, Refugees and Citizenship Canada (“IRCC“) decides to increase the cap.  Within the 2,000 cap, a maximum of 646 applications will be processed for people destined for New Brunswick, 792 applications applications will be submitted for people intending to live in Nova Scotia, 442 applications for Newfoundland and Labrador, and 120 applications for Prince Edward Island will be accepted for processing.

The main attractiveness of the program compared to federal immigration programs appears to be lower language requirements and the ability of people working in National Occupational Classification (“NOC“) C to participate.

Provincial Endorsements

In each of the programs listed above, applicants must receive provincial endorsement.

Provinces can only endorse individuals in support of applications for permanent residence made through the paper-based (non-Express Entry) process.Atlantic High-skilled Program.

The PEI designation process is described in detail here.

The Newfoundland designation process is described in detail here.

The New Brunswick designation process is described in detail here.

The Nova Scotia designation process is described in detail here.

Atlantic High-skilled Program

The AHSP is for foreign nationals who intend to reside in an Atlantic province who have the ability to become economically established in that province.

A person is eligible for the AHSP if at the time of their application for permanent residence:

  • they show that they have Canadian Language Benchmark 4 or higher in each of the four language skill areas (listening, reading, speaking and writing);
  • they hold either a Canadian educational credential or both a foreign diploma, certificate or credential and an equivalency assessment confirming the equivalency;
  • they have, in the preceding three years, accumulated at least one year of full-time work experience, or the equivalent in part-time work, in an occupation listed in Skill Type 0 Management Occupations or Skill Level A or B of the NOC matrix;
  • they have received from a recognized employer — that is, an employer that is designated by an Atlantic province in accordance with an immigration agreement to make employment offers — an offer of employment that (a) they are able to perform and likely to accept and carry out, (b) they meet the relevant employment requirements of the occupation as set out in the National Occupational Classification except for certification requirements in the case of regulated occupations and (c) (i) the offered employment is full-time, non-seasonal work having a duration of at least one year, and (ii) in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the NOC matrix;
  • they have been endorsed by an Atlantic province in accordance with an immigration agreement and they intend to reside in that province; and
  • in the case of a foreign national who is not already working in Canada, they have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to one eighth of the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published by Statistics Canada under the Statistics Act for urban areas of residence of 500,000 persons or more, as the minimum amount of before-tax annual income necessary to support the foreign national and their family members, whether they are accompanying the foreign national or not.

If the foreign national is in Canada at the time of their application for permanent residence, they must have temporary resident status.

In order for the visa to be issued the offer of employment described above must still be valid or the foreign national must be occupying employment that meets same that is to last for a period of at least one year beginning on the day on which the permanent resident visa is issued.

As well, the endorsement referred to above must have been issued within the preceding six months and must not have been revoked by the issuing province.

Any periods of self-employment will not be included when calculating the period of qualifying work experience.

Work experience acquired during a period of study is allowed, as long as the work hours did not exceed what they were authorized to do.

Atlantic Intermediate-skilled Program

The AISP is for foreign nationals who intend to reside in an Atlantic province who have the ability to become economically established in that province.

A person is eligible for the AISP if at the time of their application for permanent residence:

  • they show that they have Canadian Language Benchmark 4 or higher in each of the four language skill areas (listening, reading, speaking and writing);
  • they hold either a Canadian educational credential or both a foreign diploma, certificate or credential and an equivalency assessment confirming the equivalency;
  • they have, in the preceding three years, accumulated at least one year of full-time work experience, or the equivalent in part-time work, in an occupation listed in Skill Type C of the National Occupational Classification matrix;
  • they have received from a recognized employer — that is, an employer that is designated by an Atlantic province in accordance with an immigration agreement to make employment offers — an offer of employment that (a) they are able to perform and likely to accept and carry out, (b) they meet the relevant employment requirements of the occupation as set out in the NOC except for certification requirements in the case of regulated occupations and (c) (i) the offered employment is full-time, non-seasonal work having a duration of at least one year, and (ii) in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A, B or C of the NOC matrix;
  • they have been endorsed by an Atlantic province in accordance with an immigration agreement and they intend to reside in that province; and
  • in the case of a foreign national who is not already working in Canada, they have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to one eighth of the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published by Statistics Canada under the Statistics Act for urban areas of residence of 500,000 persons or more, as the minimum amount of before-tax annual income necessary to support the foreign national and their family members, whether they are accompanying the foreign national or not.

If the foreign national is in Canada at the time of their application for permanent residence, they must have temporary resident status.

In order for the visa to be issued the offer of employment described above must still be valid or the foreign national must be occupying employment that meets same that is to last for a period of at least one year beginning on the day on which the permanent resident visa is issued.

As well, the endorsement referred to above must have been issued within the preceding six months and must not have been revoked by the issuing province.

Any periods of self-employment will not be included when calculating the period of qualifying work experience.

Work experience acquired during a period of study is allowed, as long as the work hours did not exceed what they were authorized to do.

Atlantic International Graduate Program

The AISP is for foreign nationals who intend to reside in an Atlantic province who have the ability to become economically established in that province.

A person is eligible for the AISP if at the time of their application for permanent residence:

  • they show that they have Canadian Language Benchmark 4 or higher in each of the four language skill areas (listening, reading, speaking and writing);
  • they have in the preceding 12 months obtained, as a full-time student, a post-secondary Canadian educational credential that is from an eligible two-year program offered;
    • Acadia University;
    • Atlantic School of Theology;
    • Cape Breton University;
    • Collège communautaire du Nouveau-Brunswick;
    • Collège de l’Île;
    • College of the North Atlantic;
    • Dalhousie University;
    • Holland College;
    • Maritime College of Forest Technology;
    • Memorial University of Newfoundland;
    • Mount Allison University;
    • Mount Saint Vincent University;
    • New Brunswick College of Craft and Design;
    • New Brunswick Community College;
    • Nova Scotia College of Art and Design;
    • Nova Scotia Community College;
    • Saint Francis Xavier University;
    • Saint Mary’s University;
    • Saint Thomas University;
    • University of King’s College;
    • University of New Brunswick;
    • Unversite de Moncton;
    • University of Prince Edward Island; or
    • Universite of Sainte-Anne;
  • they had been physically present in the Atlantic province where the institution that granted the Canadian credential is located for at least 16 months during the 24 months preceding the day on which that credential was granted, had temporary resident status for the entire period during which they were obtaining it and had authorization for any work or study they engaged in during that entire period;
  • they have received from a recognized employer — that is, an employer that is designated by an Atlantic province in accordance with an immigration agreement to make employment offers — an offer of employment that (a) they are able to perform and likely to accept and carry out, (b) they meet the relevant employment requirements of the occupation as set out in the NOC except for certification requirements in the case of regulated occupations and (c) (i) the offered employment is full-time, non-seasonal work having a duration of at least one year, and (ii) in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A, B or C of the NOC matrix;
  • they have been endorsed by an Atlantic province in accordance with an immigration agreement and they intend to reside in that province; and
  • in the case of a foreign national who is not already working in Canada, they have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to one eighth of the amount identified, in the most recent edition of the publication concerning low income cut-offs that is published by Statistics Canada under the Statistics Act for urban areas of residence of 500,000 persons or more, as the minimum amount of before-tax annual income necessary to support the foreign national and their family members, whether they are accompanying the foreign national or not.

Only certain educational credentials are eligible for the AIGP. An educational credential is not eligible if the credentials were obtained in a study or training program where:

  • the study of English or French as a second language was at least half of the program;
  • distance learning was at least half of the program; or
  • where a scholarship or fellowship stipulated that the recipient return to their home country to apply the knowledge and skills gained.

If the foreign national is in Canada at the time of their application for permanent residence, they must have temporary resident status.

In order for the visa to be issued the offer of employment described above must still be valid or the foreign national must be occupying employment that meets same that is to last for a period of at least one year beginning on the day on which the permanent resident visa is issued.

As well, the endorsement referred to above must have been issued within the preceding six months and must not have been revoked by the issuing province.

New LMIA Exemption

Foreign nationals who receive a job offer from an employer and a Referral Letter issued by one of the Atlantic Provinces may be eligible to apply for a one-year Labour Market Impact Assessment (LMIA)-exempt employer-specific work .

To be eligible for a temporary work permit, foreign nationals will need

  • a valid job offer
  • a referral letter from a province, and
  • a commitment to apply for permanent residence within 90 days of submitting the temporary work permit application.

Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.
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Ezokola and the Test For Complicity

In 2013, the Supreme Court of Canada in Ezokola v. Canada (Citizenship and Immigration) created a new test for determining complicity in Article 1F(a) exclusion cases.

Article 1F(a) of the 1951 Refugee Convention provides that:

The provisions of this Convention shall not apply to any person with respect to whom there  are serious reasons for considering that:

(a)  He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;

The issue that Ezokola addressed is how broad Article 1F(a) is.  It if it interpreted too narrowly, then Canada risks creating safe havens for perpetrators of international crimes.  If it is read too broadly, then the humanitarian aims of the 1951 Refugee Convention would be imperilled.

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Substituted Evaluations for Federal Skilled Worker Applicants [Updated]

There is a myth amongst potential Federal Skilled Worker Program applicants that their application is guaranteed if they can get 67 points. This is not true for several reasons, including the possible use of substituted evaluations.
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