Spousal Sponsorship and Social Assistance

Photo by George Vnoucek

The Toronto Star had an editorial yesterday deploring the case of an individual who was ruled inadmissible to sponsor his wife.  The reason?  The man received a $413 cheque from the City of Toronto which was issued to 900 people who were displaced by a high-rise fire in 2008.

Section 133 of the Immigration and Refugee Protection Regulations (the “Regulations“) prohibits an individual from sponsoring someone if that person is in receipt of social assistance for a reason other than a disability. Social assistance is defined as any benefit in the form of money, goods or services provided to or on behalf of a person by a province under a program of social assistance, including a program of social assistance designated by a province to provide for basic requirements including food, shelter, clothing, fuel, utilities, household supplies, personal requirements and health care not provided by public health care, including dental care and eye care.

Other things that can disqualify an otherwise eligible sponsor from sponsoring someone include:

  • The sponsor being subject to a removal order;
  • The sponsor being detained in any penitentiary, jail, reformatory, or prison;
  • The sponsor have previously been convicted of a specified offence (such as a sexual offense);
  • The sponsor being in default of spousal or child support payments;
  • The sponsor being in default of a debt owed under the IRPA;
  • The sponsor being an undischarged bankrupt;
  • The sponsor being in receipt of social assistance other than for reasons of a disability; and
  • The sponsor being in default of a of a previous sponsorship undertaking.

If you are considering sponsoring someone and you have concerns about any of these criteria, you should talk with a lawyer to determine your eligibility, and, if you are not eligible, what other options are available to bring your family member in.


Spousal Sponsor is Pregnant with Someone Else’s Child

On May 27th the Federal Court (the “Court“) released its decision in Chen v. Canada (Public Safety and Emergency Preparedness), (2010 FC 584) (“Chen“)The decision involves a unique situation of someone who was sponsored by a wife who was pregnant with her lover’s baby.

Mr. C, a Chinese citizen, married Ms. Z, a Canadian Resident. She then sponsored him for permanent residence.  While Mr. C was awaiting his papers, a friend told him that his wife had been seen “in the company” of another man in Toronto.

When Mr. C arrived in Canada, he found his wife pregnant with another man’s child.  According to Justice Harrington,

He was willing to forgive, and asked her to get an abortion. She refused. On many occasions she made sexual overtures to him but he was both unwilling and unable to perform. She taunted his lack of manhood. (Paragraph 5)

As one would expect, the marriage shortly dissolved thereafter.

After the divorce, Mr. C married an old flame in China. He then attempted to sponsor her.  Unfortunately for him, Canadian immigration authorities not only disallowed this second application, but also declared him inadmissible to Canada for misrepresentation in the first application. Essentially, the Canada Border Services Agency (“CBSA“) alleged that Mr. C’s first marriage to Ms. Z was not genuine, that Mr. C lied to enter Canada, and that his permanent residency should be revoked.  Specifically, the CBSA was suspicious because Mr. C did not have a wedding reception upon arriving in Canada, he did not confront his wife about the rumours before he left China, and he did not return to China once his marriage to Ms. Z dissolved.

The Court, however, noted that in determining whether a marriage is genuine for the purposes of immigration, one has to consider whether the marriage was genuine in the first place, and whether it was still genuine when the Applicant arrives at a Canadian port of entry.

Regarding Mr. C’s failure to disclose to the interviewing officer the possibility of Ms. Z having an affair, the Court noted that at the time of the interview Ms. Z having an affair was only a rumor, and that the duty of candour did not oblige Mr. C to share mere worries.

Regarding Mr. C’s failure to go back to China after the dissolution of his marriage, Justice Harrington noted that:

As to not immediately returning to China when the marriage broke down, he said that as a cuckold he would be the laughing stock of his village. There was no evidence to contradict that statement.

Chen might not set any broad new legal precedents.  However, it is a good illustration of the parameters of the duty of candour that all applicants face in their applications to enter and/or immigrate to Canada.


Spousal Sponsorship Timeline

Canada’s spousal and common-law partner sponsorship programs have undergone significant changes in the past several years.  In a recent backgrounder to a press release, Citizenship and Immigration Canada published the timeline below.  The timeline is something that all practitioners should consider showing to clients who are interested in submitting a spousal or common-law partnership application.

In brief, all people considering the spousal or common-law partnership program should be aware of some conditions, undertakings, and restrictions which will apply to them after their application is approved.

In brief:

Year 0 – Applicant immigrates to Canada and becomes a permanent resident of Canada.  If the applicant was married or in a common-law partnership with the Canadian sponsor for less than two years prior to the couple submitting their sponsorship application (and they do not have children in common together) then the immigrant is a “conditional permanent resident” who has to stay married and live with the sponsor for a period of two years after the immigrant becomes a permanent resident.

Year 2 – The condition of staying married and living together with the sponsor is removed for conditional permanent residents.

Year 3 – The sponsor’s sponsorship undertaking ends.  The sponsor will no longer be liable to a level of government for any social assistance that the immigrant receives.  If the sponsor and immigrant have divorced or separated, the sponsor can now sponsor someone new.

Year 5 – If the immigrant and the sponsor have divorced or separated, the immigrant is now able to sponsor a new spouse or common-law partner.

So yeah, much thanks to CIC for this helpful chart.

 


Immigration Appeal Division Must Address Bona Fides Before H&C

The Federal Court has confirmed that s. 65 of the Immigration and Refugee Protection Act requires that the Immigration Appeal Division determine whether an applicant is a member of the Family Class before considering humanitarian & compassionate considerations (“H&Cs“).

Accordingly, people appearing before the Immigration Appeal Division in a Family Class appeal should be prepared to prove that the applicant is a member of the family class before arguing H&Cs.  This is the case even if the visa officer did not make a determination, or made a negative determination, regarding membership in the Family Class.

For example, if a visa officer rejects a spousal-sponsorship application on the basis of criminality, then at the Immigration Appeal Division the appellant must be prepared to demonstrate bona fides of the relationship prior to analyzing the inadmissibility, and any H&Cs to overcome it.

 


Significant Changes Coming to the Spousal-Sponsorship Program

Fresh off his efforts to crack down on crooked consultants, and having just introduced legislation to deter “bogus refugees,” Jason Kenney, the Minister of Citizenship and Immigration, is now focusing his scopes on deterring sham marriages.  He has made (or is in the process of making) two significant changes to Canada’s spousal-sponsorship program.  While both of his reforms will have its critics, the changes are likely to have the overwhelming support of the Canadian public, and continue the Conservative government’s trend of harmonizingCanada’s immigration system with other Western democracies.

The first change is a five-year sponsorship bar for recently sponsored spouses.  A previously-sponsored spouse will now be barred from sponsoring a new spouse or partner for the first five years that the previously sponsored spouse is a permanent resident.  The government’s objective is to prevent an individual who has been sponsored from divorcing the sponsor and shortly thereafter getting married and sponsoring someone else.

This change took affect on March 2, 2012.  If you were in the process of preparing a spousal-sponsorship application, and this change applies to you, then I’m sorry toinform you that there was no grace period. You will (likely) have to wait until you have been in Canadafor five-years before you can sponsor your spouse.

The second change is the introduction of conditional residency for certain spouses.  Spouses or common-law or conjugal partners who are in a relationship of two years or less with their sponsor will soon be subject to a period of conditional permanent residence.  The condition would require the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a period of two years following the acquisition of permanent residence status.  If this condition is not met, then the permanent resident and his/her dependents will lose their status inCanada, and be subject to removal proceedings.

There are two exceptions to the conditional permanent residency rule.  The first is if the sponsor and the sponsored spouse have a child together.   The second is if the sponsored spouse can demonstrate that he/she suffered abuse or neglect.  Abuse can be physical (assault and forcible confinement), sexual (sexual assault), psychological (threats and intimidation), and financial (fraud and extortion).   Neglect consists of the sponsor’s failure to provide the necessaries of life.

Implementing conditional permanent residency is expected to be an expensive endeavor.  Indeed, the government anticipates that the quantitative costs will exceed the benefits.  The Conservatives believe that it will cost $11-million to implement conditional permanent residency during its first ten years.  The costs include investigating cases of alleged fraud, taking enforcement action against those found to be non-complaint with the condition, and increased admissibility hearings and appeals.

The Conservative believe that the benefit will be $5.5-million during the same period.  The savings are expected to come from a reduction in spousal-sponsorship applications.

An additional benefit will hopefully be that Citizenship and Immigration Canada will be less scrutinizing of spousal-sponsorship applications.  In 2010, 46,300 couples submitted spousal-sponsorship applications.  Sixteen percent of applications were refused, primarily because the couples did not satisfy CIC that their relationships were genuine.  While some of the 84% of couples that were approved were likely sham marriages that slipped through the cracks, it is probable that an even greater number of genuine marriages were rejected.

The Immigration Appeal Division meanwhile recently released statistics showing that as of September 30, 2011, 6,399 spousal-sponsorship appeals were underway acrossCanada.  Each of these appeals takes up a serious amount of time and resources.

Presumably, once conditional permanent residency is in place Citizenship and Immigration Canada will be able to reduce the scrutiny that it apples to spousal-sponsorship applications.  For example, one would hope that an officer who has concerns about the genuineness of a relationship but is unsure will ultimately approve the application knowing that the principal applicant will have to cohabit in a conjugal relationship with the sponsor for two years or face removal.  Such a shift in mentality could greatly reduce processing times, save money, and decrease the burden on applicants.

Of course, whether or not there is actually a decrease in the burden on applicants will depend on how the government implements conditional permanent residency.  The proposed regulatory change is unclear as to whether immigrants have to be proactive in getting the condition removed, or whether the passage of time makes it automatic.  I shudder to think that all couples encompassed by the rule will have to submit new applications establishing the continuing genuineness of their relationship

Because of that is the case, then conditional permanent residency will be a far more expensive endeavor than the government is predicting.


Court Discusses Parameters of Spouse or Common-Law in Canada Class

Canadians wanting to sponsor foreign nationals have to decide whether they want to apply as a member of the Family Class or as a member of the Spouse or Common-Law Partner in Canada Class.

To be a member of the Spouse or Common-Law Partner in Canada Class, applicants must:

  1. be the spouse or common-law partner of a sponsor and cohabit with that sponsor in Canada;
  2. have a temporary resident status in Canada; and
  3. be the subject of a sponsorship application.

Said v. Canada (Citizenship and Immigration), 2011 FC 1245 recently confirmed an important point for people considering applying under this class.

You have to be cohabiting.  If there is no cohabitation then there is no possible sponsorship.  There is no requirement for immigration officers to consider whether a marriage is genuine if the couple are not cohabiting.