Last updated on September 21st, 2020
Last Updated on September 21, 2020 by Steven Meurrens
Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by r. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”). Regulation 4(1) provides 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.
Despite the importance of applicants demonstrating that their relationship is genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the “Act”) there are no set criteria which determine whether an application is bona-fide. As the Federal Court noted in Koffi v. Canada (Citizenship and Immigration), 2014 FC 7 (citations removed)
It is well established in the case law of this Court that there is no specific criterion, or even a set of criteria, to determine whether a marriage is genuine pursuant to section 4 of the Immigration and Refugee Protection Regulations. It is exclusively up to the visa officer to determine the relative weight to grant each of the factors, based on the facts, to ensure the inherent logic of the applicant’s story according to the particular clues, or references made by the applicant himself, meaning the encyclopedia of references, a dictionary of terms, a picture gallery of the applicant’s file in addition to an assessment to determine whether the facts on file taken together create harmony or discord.
Factors for Determining Genuineness
Notwithstanding the fact that there is no set criteria for IRPR r. 4(1) analysis, numerous Immigration Appeal Division (“IAD”) decisions have noted that a non-exhausted list of factors includes:
- the compatibility of the spouses;
- the development of the relationship;
- communication between the appellant and the applicant;
- financial support;
- the spouses’ knowledge of each other;
- visits by the appellant to see the applicant;
- the presence of the applicant’s family in Canada;
- the applicant’s previous attempts to land in Canada;
- previous marriages; and
- the cultural context.
These factors are based on the Supreme Court of Canada decision in M. v. H, where the Supreme Court of Canada stated that a list of factors which can determine whether a relationship meets the requirements of being a conjugal one include:
- shared shelter (e.g. sleeping arrangements)
- sexual and personal behaviour (e.g. fidelity, commitment, feelings towards each other)
- services (e.g. conduct and habit with respect to the sharing of household chores)
- social activities (e.g. their attitude and conduct as a couple in the community and with their families)
- economic support (e.g. financial arrangements, ownership of property)
- children (e.g. attitude and conduct concerning children)
- societal perception of the two as a couple
These factors may exist in varying degrees and not all are necessary for the relationship to be considered conjugal. Couples are not required to fit precisely the traditional marital model to demonstrate that the relationship is ‘conjugal.’
Importantly, and as the Federal Court noted in A.P. v. Canada (Citizenship and Immigration), 2020 FC 906, there was no question in the Court’s mind in M v H that, after many years together, an opposite‑sex couple could be in a conjugal relationship even though they have neither children nor sexual relations. This applies to heterosexual, homosexual and mixed orientation couples. As well, individuals who have different sexual orientations can still have a conjugal relationship.
Burden of Proof
While the burden of proof is on an applicant to establish that a relationship is bona-fide, officers should not presume at the outset that a relationship is mala-fide. As well, while visa officers are entitled to consider and weigh numerous factors when assessing a sponsorship application, the jurisprudence is also clear that officers must be alert to an applicant’s unique circumstances, including cultural customs, dating habits, and financial circumstances.
For example, as the Federal Court noted in Lhundup v. Canada (Immigration, Refugees, and Citizenship), 2017 FC 224, it would be unreasonable for an immigration officer to unduly focus on the difference in age between a married couple.
Immigration, Refugees and Citizenship Canada has produced training materials to officers on how to spot non-genuine relationships. Thankfully, most officers show much more common sense in assessing these applications than what their training materials suggests should be how they assess applications.
Spotting Fake Marriages
The training presentations for processing marriages involving Indian and Afghani citizens are also available here.