Last Updated on November 2, 2016 by Steven Meurrens
On October 29, 2016, the Government of Canada announced that it would be abolishing the conditional permanent residency regime currently in place in the Family Class and the Spouse or Common-Law Partner in Canada Class.
Since October, 2012, conditional permanent residency has applied to individuals who are the spouse, common-law, or conjugal partner of their sponsor for two years or less when they submit their sponsorship applications and who do not have children in common with their sponsor when they submit the sponsorship applications. Conditional permanent residents are required to cohabit in a conjugal relationship with their sponsors for a continuous period of two years after the day on which they become permanent residents. If Immigration, Refugees and Citizenship Canada (“IRCC“) determines that conditional permanent residents have breached the condition, then IRCC will declare them inadmissible to Canada, and removal proceedings will be initiated. An exception to this is where there is abuse. Conditional permanent residents are able to appeal such decisions to the Immigration Appeal Division, which can consider humanitarian & compassionate considerations.
From 2013-2015, 58 218 spouses and partners along with their children were admitted to Canada as conditional permanent residents. This represented approximately 42% of admissions of spouses, partners, and their children within Canada’s family reunification programs. During this time, 307 conditional permanent residents requested an exception to the requirement to cohabit with their sponsor due to abuse or neglect. Approximately 80% of these requests were approved.
In my experience, the Canada Border Services Agency was very flexible in its application of the abuse exception, and was very reluctant to dismiss someone’s claim that they had suffered abuse.
In the Gazette, the Government of Canada has now announced that after four years it is unclear whether or not conditional permanent residence has had its intended impact of deterring non-genuine sponsorship applications, and that there has not been any conclusive trends in a reduction of marriages of convenience. The Government of Canada did determine, however, that data for the same period indicated that a number of sponsored spouses likely suffered abuse and neglect before they were granted an exception to the cohabitation requirement.
As the Government of Canada further notes in the Gazette:
It is important to acknowledge that, in repealing conditional permanent residence, it is possible that some foreign nationals who may be currently deterred from misleading Canadians into fraudulent marriages would attempt to use the family reunification program to seek entry to Canada with non-genuine intentions. It is possible that some of these applications may be approved, which could lead to significant emotional stress and potential financial liability for affected sponsors.
However, the proposed repeal of conditional permanent residence recognizes that the majority of relationships are genuine, and the majority of applications are made in good faith. Eliminating conditional permanent residence would facilitate family reunification, remove the potential increased vulnerability faced by abused and neglected spouses and partners, and support the Government’s commitment to combatting gender-based violence.
It is also important to note that the Liberals appear to be retaining two of the other changes that the previous Conservative Government of Canada made to address marriage fraud. First, applicants in Canada’s family reunification programs must continue to demonstrate that their marriage is both genuine and was not entered into primarily for the purpose of immigration, whereas previously they only had to demonstrate either factor. Second, the five-year bar on sponsorship which requires that sponsored spouses or partners must wait five years from the day they are granted permanent resident status in Canada before they themselves are eligible to sponsor a new spouse or partner remains in place.
In short, while the Liberals are getting rid of the Conservative change that was the most difficult to administer (because of the complexity involving allegations of abuse) and the most controversial (because why should a genuine marriage breakdown that could subjectively not be foreseen at the time of marriage lead to deportation), it cannot be said that the Liberals are going soft on marriage fraud, or that they are completely setting aside the Conservative reforms.