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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One-Sided Marriages

The Federal Court has released a decision which seems to suggest that immigration officers can analyse whether a marriage is “one-sided” for the purpose of determining whether a marriage is not genuine or whether it was entered into for immigration purposes.  Although Dalumay v. Canada, 2012 FC 1179 is not particularly ground-breaking, it contains some useful paragraphs reminding individuals what immigration officers are analysing when they process sponsorship applications.

Regulation 4 of Canada’s Immigration and Refugee Protection Regulations provides that a relationship will be considered bad faith (and a sponsorship application will be rejected) if the relationship was entered into primarily for the purposes of acquiring any status or privilege under the Act or is not genuine.  As previously noted on this blog, Regulation 4 was amended in 2010, with the word “or” replacing “and” before the phrase “is not genuine.”

In Keo v. Canada (Citizenship and Immigration Canada), 2011 FC 1456, the Federal Court described the implication of the 2010 change as being that:

The amendment made to section 4 of the Regulations is not cosmetic in nature; the use of the word “or” in the English version and of the words “selon le cas” in the French version are very clear: if either of the two elements (genuineness of marriage and intention of the parties) is not met, the exclusion set out in the new subsection 4(1) of the Regulations applies.

[…]

A marriage might have been entered into in accordance with all of the statutory formalities, but, nonetheless, the visa officer or the panel may refuse to recognize [it] if they find that the marriage did not occur in “good faith”, even if the expression “non-genuine marriage” is not used in their reasons for decision… In fact, what the immigration laws do not recognize are situations where the two spouses are complicit to duplicity (a non-genuine marriage) and/or where the intention of the spouses or of one of the spouses is primarily to acquire a status or privilege (even if the other partner may benefit from it). In other jurisdictions, these unions are sometimes described as “sham” or “white” marriages, whereas in Canada, the manual.. uses the expression “marriage of convenience”.

Consequently, whether this is a conventional marriage, an arranged marriage or another type of conjugal relationship, it is essential to find in the couple’s relationship a mutual commitment to living together to the exclusion of any other conjugal relationship. The spouses’ physical, emotional, financial and social interdependence goes hand in hand with this because, after all, in all cultures and traditions, over and above any religious undertakings, in terms of its civil effects, marriage is, above all, an indeterminate contract requiring that spouses help each other and contribute towards the expenses of the marriage in proportion to their respective means, which certainly includes the activities of each spouse, or even both together, in the home.

Furthermore, in M v H, [1999] 2 SCR 3, at paragraph 59, the Supreme Court of Canada […] spoke of a conjugal relationship based on generally accepted characteristics: shared shelter, sexual and personal behaviour, services, social activities, economic support, children and the societal perception of the couple. However, these elements may be present in varying degrees and not all are necessary for the relationship to be found conjugal. The same type of criteria can be found in the manual.

[…]

There is no single method of analysis. For example, money transfers, the combining of financial resources, the existence of joint accounts and the purchase of property in the name of both spouses are certainly indicative of financial support or interdependence. Something else that can be verified is how the spouses behave towards one another and towards the authorities in their respective countries. Do they have children? Do they support each other during illnesses? Do they give each other gifts? Do they travel together? Do they live under the same roof when they are in the foreign spouse’s country of origin? In what way and how often do they communicate when they are separated?

In Dalumay, the Court added that:

In the matter at bar, the Immigration Appeal Division did not explicitly take issue with the evidence of the genuineness of the marriage, but concluded that for both spouses (although to a greater extent for the applicant’s husband) the marriage was primarily entered into for the purpose of acquiring status or privilege under the Act. In other words, the IAD viewed the marriage (or the relationship) as being one-sided. The applicant subscribed to an insurance policy in which she designated her husband as the beneficiary, she visited her husband several times in Mexico and paid for all of her expenses, she paid for a trip with her husband and his son, she sends him money on a monthly basis, she pays his bills, etc.

 

 

The applicant submits that the evidence supporting the IAD’s negative conclusion did not meet the required evidentiary test of balance of probabilities. Even if the credible evidence of the genuineness of her marriage (demonstrating positive features of a couple, as the applicant puts it) was not fully weighed in the assessment, the IAD’s decision turned on the failure of the applicant’s husband to provide sufficient evidence that he entered into the relationship with an intention to found, raise, and support a family with the applicant.

The above passages are all useful reminders in what it is that officers are looking for when they process sponsorship applications.  Accordingly, people preparing such applications should take care to show that they are demonstrating that:

  • the couple are committed to each other emotionally, financially, and physically (although in practice not too much detail is provided on this last one);
  • the couple are exclusive;
  • the relationship evolved in a natural fashion ie: immigration wasn’t a concern or an issue;
  • that both individuals in the relationship feel the same; and
  • that the relationship is known to others.

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.