Regulation 5 of the Immigration and Refugee Protection Regulations states that a a foreign national shall not be considered the spouse of a person if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the person was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law. There are similar provisions excluding such individuals from the Family Class and the Spouse or Common-Law Partner in Canada Class.
The Immigration, Refugees and Citizenship Canada (“IRCC”) Guidelines state that:
Proxy, telephone, fax, Internet or similar forms of marriage where one or both parties are not physically present are excluded relationships in all temporary and permanent immigration programs.
Proxy marriage is defined as a marriage in which one or both of the participants are not physically present, but they are represented by another person who attends the solemnization. A telephone, fax or Internet marriage is a marriage in which one or both of the participants are not physically present at the same location, but participate in the solemnization of the marriage by telephone, fax, Internet or other means (e.g. Skype or FaceTime). It is possible that someone other than the persons getting married participates on their behalf as well as over the telephone, by fax, Internet or other means.
Applications received by IRCC before June 11, 2015, from persons married by proxy, telephone, fax or Internet are not subject to this exclusion.
To be considered physically present at a marriage ceremony, both parties (e.g. sponsor and spouse or principal applicant and accompanying spouse) must have participated in a wedding ceremony in person.
» Read more about: Proxy Marriages »
Read more ›It is generally well known that Canadian citizens or permanent residents wishing to sponsor their spouses or common-law partners from abroad can typically do so. As well, most people know that Canadians who live with their spouses or common-law partners who are inside Canada as legal visitors, workers or students can sponsor them as well. What is less known is that they can also sponsor those who are in Canada without status.
Requirements
Canada since 2005 has had a public policy in which Immigration, Refugees and Citizenship Canada will process permanent residence applications from the spouses and common-law partners of Canadian citizens and permanent residents in Canada who do not have legal immigration status. The objective of the policy is to facilitate family reunification and facilitate processing in cases where families are already residing together in Canada. It is to prevent the hardship caused by family separation.
Lack of legal immigration status includes people who overstayed visas or permits, people who worked or studied without authorization from the government to do so, people who entered in Canada without required visas and people who entered Canada without valid passports. The most typical situation involves people who travelled to Canada, became romantically involved with a Canadian, and then forgot that they needed to leave Canada by the end of their authorized stay. It also frequently occurs where people did try to extend their status in Canada, but their applications were returned due to incomplete forms or incorrect fee payments.
The public policy does not extend to those who were previously deported and returned to Canada without authorization, those who entered Canada with fraudulent or improperly obtained passports or visas and those who are facing deportation for reasons such as misrepresentation or criminality.
Process
People submitting sponsorship applications under the public policy need to meet all other immigration requirements,
» Read more about: Sponsoring Someone Who is Out of Status in Canada »
Read more ›Regulation 4 of Canada’s Immigration and Refugee Protection Regulations state that 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.
A Hasty Marriage
In Nadasapillai v Canada (Citizenship and Immigration), 2015 FC 72, Justice Diner held that the fact that a marriage was entered into after a short courtship is not determinative of a mala fide marriage. He stated:
The Panel criticized the haste based on Ms. Raman’s troubled past relationship and marriage, and the fact that Ms. Raman was 38 years of age at the time, i.e., getting on in age for a single mother. There are two reasons that this is a weak conclusion.
First, one can easily understand why Ms. Raman was ready for the companionship that she clearly explained she had longed for: older couples can be quick in deciding to get married (although haste is certainly not the exclusive domain of any particular age). Older people are often ready to move more quickly into a lifelong commitment, as they know what they want. As Ms. Raman stated in her testimony, “I am getting older. I am very old now and I don’t know how long I’ll be able to live. … I found him a good person. So I took two or three days… to think about it and then decide it.”
Second, if the basis of finding haste was one steeped in a certain culture, it is unfair. In the context of the Refugee Protection Division,
» Read more about: Assessing the Genuineness and Primary Purpose of a Marriage »
Read more ›The following is an article that I wrote for Policy Options.
On February 14, 2018, Ahmed Hussen, Minister of Immigration, Refugees and Citizenship Canada (IRCC), announced that the processing time for spousal sponsorship applications had been reduced from 26 months to 12 months in 80 percent of cases. The Minister attributed the reduction to a “Family Class Tiger Team” that had redesigned application packages and introduced workflow efficiencies.
What the Minister didn’t mention was that IRCC achieved its reduction in processing at least in part because it has established an unbelievably strict triage system for marriage-based immigration applications. As reported in several media outlets at the end of January 2018, this intake-management system has in many instances left Canadian families in limbo, caused people who were legally in Canada to lose their status and impeded the ability of the foreign-national spouses of Canadian citizens to work.
On the same day that the Minister made his announcement, IRCC issued an Operational Bulletin stating that effective March 15, 2018, IRCC would return as incomplete applications that do not include a detailed form listing personal and address history, and police certificates from countries where applicants have lived. These forms and police certificates were previously required but not subject to the triage system.
This triage system makes it difficult to accurately compare application processing times and, more importantly, it creates unnecessary and unwarranted hardship for Canadians seeking to reunite with their families.
The drive for faster processing times
It is true that under the former Conservative government, processing times for spousal and common-law sponsorship applications were generally slower than they currently are. These slower processing times were in large part due to lower quotas that the Conservatives had for family reunification.
» Read more about: Make Spousal Sponsorships Work to Reunite Families »
Read more ›
It is generally well known that Canadian citizens and permanent residents can sponsor their spouses, common-law partners, children, parents and/or grand-parents to immigrate to Canada.
What is less well-known is that in certain circumstances it is also possible for a Canadian citizen or permanent resident to sponsor an extended family member to immigrate.
The “Lonely Canadian” Category
Under a program that is generally referred to as the “Lonely Canadian Program” or the “Other Relative Program” a Canadian citizen or permanent resident can sponsor one adult son or daughter, brother, sister, uncle, aunt, niece or nephew to immigrate to Canada. If that extended family member is married or has children, the person being sponsored can bring their immediate family with them to Canada. As well, the person being sponsored has to be related to the sponsor by blood.
In order to sponsor such a relative, however, the Canadian or permanent resident must show that they do not have a spouse, common-law partner, child, parent or grandparent or child who is either a Canadian citizen or a permanent resident, or who is a foreigner that can be sponsored. For example, if a Canadian citizen is married they cannot sponsor their uncle to immigrate. The program is designed to favour persons who do not have relations in Canada and have no possibility to sponsor immediate family.
The normal rules of sponsorship apply, and the Canadian sponsor would need to enter into an undertaking with the Government of Canada wherein they would commit to being financially responsible for their relative for a period of 10 years after they immigrate.
Ability to Sponsor a Parent
One issue that frequently arises in the Lonely Canadian Program is whether a Canadian can sponsor an extended relative to immigrate to Canada if that Canadian has a living parent or grandparent but is likely unable to sponsor them.
» Read more about: Sponsoring an Extended Family Member to Immigrate »
Read more ›(The following is an article that I wrote for Policy Options.)
On April 13, 2017, the Trudeau government fulfilled a campaign promise from the 2015 federal election by eliminating the status of conditional permanent residency from Canada’s family reunification immigration programs. From 2012 to 2017, under rules implemented by the previous Harper government, immigrants who were married or in a common-law relationship with a Canadian citizen or permanent resident for less than three years before being sponsored by their partner for permanent residency would become conditional permanent residents. The “condition” was that if they separated from their partner within two years of immigrating, they could lose their status and be removed from Canada.
The Trudeau government’s decision to end conditional permanent residency was treated with jubilation by most Canadian immigration lawyers and observers; many stakeholders remarked how callous and draconian the Conservatives were to have introduced such a measure in the first place. Indeed, the Liberal government stated when it repealed conditional permanent residency that it was taking this action to uphold its commitment to family reunification, support gender equality and combat gender violence. The implication, of course, was that the Conservatives did not care about any of these things.
Although I supported the repeal of conditional permanent residency, I believe that some of the criticism of the previous government has been unfair. Now that the dust has more or less settled, I hope to offer a more balanced summary of why the Conservatives introduced conditional permanent residency, why its repeal was a good thing and why those who are concerned about marriage fraud should have confidence in Canada’s immigration system.
Why conditional permanent residency was introduced
When the Conservatives introduced conditional permanent residency in 2012,
» Read more about: Addressing Concerns About Marriage Fraud »
Read more ›Canadian immigration legislation provides that a Canadian citizen or permanent resident may sponsor their spouse, common-law partner, child, parents or grand-parents to immigrate to Canada. It also provides that in certain circumstances a Canadian may sponsor another relative.
Section 117(1)(h) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that:
A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is
a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father
(i) who is a Canadian citizen, Indian or permanent resident, or
(ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor.
The following are key things to know about sponsoring relatives other than spouses, common-law partners, children, parents or grand-parents.
1. The Canadian sponsor must not have a spouse, common-law partner, child, parent or grand-parent that is either a Canadian citizen or one that they can sponsor.
Indeed, when assessing such applications, Immigration, Refugees and Citizenship Canada (“IRCC”) will often ask applicants to provide detailed family trees listing all family members and to provide evidence as to whether a person’s parents and grandparents are deceased.
2. It does not matter if the Canadian sponsor is not close to, or estranged from, his or her parents.
» Read more about: Sponsoring Relatives other than Spouses, Parents, and Children »
Read more ›One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process. The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process. This is not true. However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below.
Inside-Canada Process
Outside-Canada Process
The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit.
The spouse/common-law partner must reside together in Canada.
The spouse/common-law partner do not have to reside together in Canada. As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership.
The applicant must live with the spouse/common-law partner inside Canada during the duration of processing.
The applicant can live with the spouse/common-law partner inside Canada during the duration of processing, but does not have to.
The immigration paperwork is sent to a processing center inside Canada, and remains in Canada.
The immigration paperwork is sent to a processing center inside Canada, and it then may be transferred to a visa post outside of Canada.
If the applicant has valid temporary resident status in Canada, and submits an application to extend that status inside Canada with the permanent residence application, then the applicant will have implied status during the processing of the permanent residence application, » Read more about: The Inside Canada vs. Outside Canada Sponsorship Process »
Read more ›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.
The primary purpose test and the genuineness test are determined with respect to different time-frames. As the Federal Court noted in Idrizi v. Canada (Citizenship and Immigration), 2019 FC 1187 The relevant time for the primary purpose test is in the past (i.e. the time of the marriage); the relevant time for the genuineness test is the present (i.e. the time of the decision). Evidence that a marriage is not genuine can support the inference that it was entered into primarily for an immigration purpose. The converse is also true. these determinations can be exceedingly difficult. Officers must “proceed cautiously and carefully, ever aware of the need to facilitate family reunification, while at the same time safeguarding the integrity of the immigration process” (at 1944). There will rarely be direct evidence of an improper purpose. Instead, normally “intent must be inferred from the conduct of the parties and the particular circumstances of the case” (ibid). As a result, even though it is no longer sufficient for spouses simply to establish that they are in a genuine marriage (because the decision-maker can disqualify the marriage solely because it was entered into primarily for an immigration purpose), evidence concerning the genuineness of the marriage can still have a bearing on whether an adverse conclusion about the parties’ intentions when they got married should be drawn
There are several other principles about assessing whether a marriage is that are important to understand.
Read more ›(Note from Steven: I met John at the Canadian Bar Association British Columbia branch annual conference in San Francisco. He is currently involved in some fascinating litigation representing an individual who sponsored a spouse only to watch her immediately divorce him after she immigrated. She also left him on the hook for tens of thousands of dollars in social assistance payments. I invited John to some write articles for this blog, and here is the third of what will hopefully be many into this issue.)
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The issue of resolving a fraudulent marriage tied to an immigration application is completely separate from the need to get divorced. Fraudulent marriage is not grounds for a divorce and it is not necessary to prove that marriage was fraudulent in order to get a divorce. The issue of the fraudulent marriage can only be dealt with in civil court, not family, court as explained in an earlier post.
Generally speaking, it is understood that the sponsored spouse may receive social assistance or they may receive maintenance (i.e. spousal support), but they cannot receive both. Where the divorce order or separation agreement explicitly states that maintenance is not to be provided or has been provided in a lump sum payment, it can be argued that the sponsoring spouse should not be responsible for social assistance debt despite the undertaking.
It would be prudent for family law lawyers who represent a sponsoring spouse in a family matter to inquire about whether the sponsored spouse has received social assistance and determine for how long the sponsoring spouse is obligated by the undertaking to provide the necessities of life. Ideally, the divorce order should explicitly forbid the sponsored spouse from applying for social assistance during the term of the undertaking.
» Read more about: Guest Post: Safeguarding a Divorce Order Against Social Assistance Debt »
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