New Rules for Determining Fake Marriages

In a reminder that the law pertaining to immigration can change at any time without notice, Citizenship and Immigration Canada has released OB 238, announcing that amendments to section 4 of the Immigration and Refugee Protection Regulations (the “Regulations“) are now in effect.  They apply to applications which have not been submitted, as well as to those which have been submitted but for which no final decision has been rendered.

Section 4 of the Regulations regulate when a marriage will be considered a “bad faith” relationship, also known as a “marriage of convenience”. If a relationship is deemed to be “bad faith” then it will not be recognized under the family class. In other words, if your marriage is found to be a bad faith marriage, then you cannot sponsor your wife/husband to immigrate to Canada.

Section 4 of the Regulations previously read:

For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.

In other words, for a visa officer to determine that a relationship was a “bad faith” relationship, officers had to determine that:

  • the relationship was not genuine; and
  • that it was entered into primarily for the purpose of immigrating.

The amended IRPR r 4 will read as follows:

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.

4. (2) A foreign national shall not be considered an adopted child of a person if the adoption

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

(b) did not create a genuine parent-child relationship.

4. (3) Subsection (2) does not apply to adoptions referred to in paragraph 117(1)(g) and subsections 117(2) and (4).

Under the amendments, the big change is the replacement of the word “and” with “or”.  In other words, for a visa officer to determine that a relationship is a “bad faith” relationship, they have to show that:

  • the relationship was not genuine; or
  • that it was entered into primarily for the purpose of immigrating.

Adoption

It should be noted that the new rules governing adoption under s. 4 apply to the assessment of adoptions which do not conform to the intercountry adoption process.

Subsection R117(2) of the Regulations, which deals with the sponsorship of adopted children by citizens or permanent residents of Canada, has also been amended to provide that adoptions must not be entered into primarily for the purpose of immigration.  This amendment resolves previous ambiguities and inconsistencies contained within the regulations. Rule 117(2) now provides that:

R117(2) A foreign national who is the adopted child of a sponsor and whose adoption took place when the child was under the age of 18 shall not be considered a member of the family class by virtue of the adoption unless

(a) the adoption was in the best interests of the child within the meaning of the Hague Convention on Adoption; and
(b) the adoption was not entered into primarily for the purpose of acquiring any status or privilege under the Act.

Current Appeals

In what will surely frustrate immigration consultants and practitioners, the IAD will base decisions on current appeals according to the amendments, and not the law that previously existed.

Implications

The amended section 4 will make it all the more important that applicants under the spousal-sponsorship program submit applications that are as strong as possible.  As a practitioner, some of the most depressing phone calls I receive are from spouses whose spousal-sponsorship application have been denied on the basis that Citizenship and Immigration Canada does not believe that their relationships are genuine.  These rejections, and the appeals that follow, could have been avoided had a proper application been submitted.


2 thoughts on “New Rules for Determining Fake Marriages

  1. mine was a Fraud marriage !I already made an appeal to the Court in Portugal to declare it as such !I will charge the Canadian well known criminal of Windsor /Ontario with conspiracy to murder me and also for a forged adoption of my kid!That has cost me a long lasting nightmare since I was forced to remain in Canada just because he adopted the kid and was fighting for her in Court!He did this often and often in the past only the Immigration did not check or did not have the proper elements to do it , this huge fraud /crime!

    MZR

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