Last updated on October 20th, 2020
Last Updated on October 20, 2020 by Steven Meurrens
While the assessment of the bona fides of a marriage has long been a requirement in Canada’s family reunification programs, it has traditionally not been a significant factor in temporary residence applications. This has recently changed, especially for those submitting applications to Canadian visa posts in India, and at the start of 2020 there were numerous Federal Court of Canada decisions involving refusals of open spousal work permit applications because of concerns over the genuineness of marriages. Many applicants were also barred from entering Canada for five years due to misrepresentation.
Eligibility for Open Spousal Work Permits
According to the Temporary Foreign Worker Guidelines, a dependent spouse or common-law partner is eligible to apply for an open work permit if the principal applicant:
- holds a work permit that is valid for a period of at least 6 months, or, if working in a work permit exempt position presents evidence that they will be working for a minimum of 6 months;
- is employed in an occupation that falls within National Occupational Classification (NOC) skill type 0 (management occupations) or skill level A or B; and
- physically resides or plans to physically reside in Canada while working.
The principal foreign worker may be employed part-time for the spouse or common-law partner to qualify. Although there is not a standard minimum of hours required, officers have to be satisfied the foreign worker’s employment will be sufficient to financially support themselves and their family members while they are in Canada.
As discussed below, the increase in misrepresentation findings in open spousal work permit applications has been a deliberate Immigration, Refugees and Citizenship Canada (“IRCC”) policy choice. Canadian visa officials are explicitly trying to “send a message” to communities in India where they believe that marriages of convenience are increasingly occurring. Federal Court jurisprudence on the procedural fairness required in such cases is still developing, and it remains to be seen whether the courts are going to impose greater procedural fairness requirements than what is generally expected in temporary residence applications.
In order to understand the e-mails and internal public policies obtained through Access to Information Act requests below, it is important to understand that there are two types of open-spousal work permits. The first is for the spouses or common-law partners of skilled workers, which fall under Labour Market Impact Assessment (“LMIA”) exemption classification C-41. The second is for spouses or common-law partners of full-time international students in Canada, or LMIA exemption classification C-42. Other acronyms to be aware of include R4, which is the Canadian immigration regulation that prohibits marriages of convenience (or MOCs) from Canadian immigration programs, and A40, which is the Canadian immigration legislative provision which bans people who have committed misrepresentation from immigrating to Canada for five years.
The Uptake in Misrepresentation Findings Is a Deliberate IRCC Deterrance Policy
The increase in refusals and misrepresentation findings at Canadian visa posts in open spousal work permit applications has been a deliberate policy decision. On September 1, 2018 the First Secretary (Migration) at the High Commission of Canada in New Delhi e-mailed the Immigration Program Manager to express concerns about an increase in open spousal work permit applications and refusals at the visa office, and suggested that the visa office should start making misrepresentation findings to deter repeat applicants.
The Immigration Program Manager responded “on first blush, I think what you are suggesting may be worth pursuing.”
The First Secretary subsequently sent a heavily redacted e-mail saying “Hello team, I spoke to Ravi who indicated that he supports the application of A40 in R4 refusals of C42 cases. 🙂 Moving forward, [redacted]. The process for now will be as follows [redacted]. I have included all SWU staff in this email so they know the process as all will have to play a part eventually. Please let me know if you have questions or concerns. As this is a new process for us, we will continue to tweak the procedures above and try to find efficiencies.”
Another internal IRCC e-mail confirms that the purpose of the new approach was to “push the application” of misrepresetation to deter possibly fraudulent applications.
As of 2019, the New Delhi – Temporary Foreign Workers – Procedures manual states that “to disrupt intake of fraudulent applications, and to send a message to the communities here, all cases where there is a finding of a non-genuine relationship – i.e. R4 – will be referred for misrepresentation under A40.”
The Issue of Fraud
The Access to Information Act results reveal justifications for why there are concerns that marriages of convenience are becomming an increasing problem in the open spousal work permit program.
For example, there are in India marriage advertisements openly stating that part of the requirements for prospective spouses are high IELTS score and that dowries will include the paying of educational expenses in Canada.
Several IRCC e-mails echo annectodal concerns about marriages of convenience in the Indian student stream.
On January 30, 2019 a Report from Delhi was published to IRCC’s International Network. It noted that:
- In 2018, the New Delhi visa office received 15,743 work permit applications, an increase of 71% compared to 2017.
- In 2018 open spousal work permit applications comprised 52.4% of open spousal work permit applications, compared to 33% in 2016.
- That from 2016 to 2018, the percentage of work permit applications at the New Delhi visa office that required an interview increased from 1.38% to 9.07%.
- By the end of 2018, roughly 25% of open spousal work permit applications were resulting in an interview, usually to resolve concerns about marriage fraud.
- In 2018 there was a seven-fold imbalance in the gender of open-spousal work permit applicants, with nearly seven times more men submitting such work permits than women. In other words, 88% of applicants were male. This is much different from 2016, when the gender imbalance was around three times.
- The gender imbalance is not reflective of study permit applicants, as in 2018 61.8% of study permit applicants were male.
- A misrepresentation finding was made in 12.55% of interviews, or 1.26% of total cases.
The full report can be found here.India Report
As noted towards the end of the report, refusing applications due to concerns about the genuineness of the marriage can be time consuming because of the need for procedural fairness, especially where there is a misrepresentation finding. Our office has successfully judicially reviewed refused open spousal work permit applications on procedural fairness grounds, especially when IRCC checklists do not require that applicants prove the bonafides of their marriage in their work permit applications, and it was interesting to read internal IRCC e-mails acknowleding this issue.
The jurisprudence on open spousal work permits refusals is relatively recent, and thus far has been quiet strict. In Maan v. Canada (Citizenship and Immigration), 2020 FC 118, for example, the facts were:
Mr. Bhupinder Singh Maan (the “Applicant”) is a 25-year-old national of India. The Applicant is recently married to Ms. Pawanpreet Kaur, a 23-year old national of India, who is currently in Canada on a study permit.
The Applicant and Ms. Kaur are both residents of Punjab. Through family connections, they were set up to be in an arranged marriage. The families met on January 31, 2018, which was around the same time that Ms. Kaur submitted her application for a study permit in Canada. Ms. Kaur had drafted her application on January 29, 2018, and submitted it to her immigration consultant, who filed it on January 31, 2018. The arranged marriage proceeded quickly after the families met, as the Applicant was the eldest of two sons and his family was keen on an early marriage for their son. On February 1, 2018, a small engagement ceremony was held. The marriage took place on February 4, 2018, with religious ceremonies and a large gathering of friends and family. After the wedding, the couple visited various relatives. Ms. Kaur states in her affidavit that she was with the Applicant’s family for over two months prior to her departure to Canada.
Ms. Kaur received her visa on March 15, 2018. She left for Canada on April 13, 2018. Ms. Kaur alleges that upon landing, she informed the immigration officer at the airport about her change in marital status.
On or about June 29, 2018, the Applicant submitted his work permit application as an accompanying spouse to the Canadian Visa Officer in New Delhi, India. The Applicant was invited for an interview, and on November 15, 2018, the interview was conducted in New Delhi.
The pre-interview entries on the Global Case Management System (“GCMS”) indicate that Ms. Kaur had been single when she applied for her student permit, and married shortly before her visa was issued. Ms. Kaur arrived in Canada soon after the wedding, but did not inform the visa office or the immigration officer at the port of entry that her marital status had changed.
During the interview, the Officer noted several concerns regarding the bona fides of the marriage between the Applicant and Ms. Kaur, such as the incompatibility of education; the hastily finalized marriage; the inability of the Applicant to explain how the wedding could have been arranged in 3-4 days; the Applicant’s lack of knowledge on the fact that Ms. Kaur had been planning to go to Canada; the fact that the photographs did not show the stated attendance of 250-300 guests at the wedding; the Applicant’s lack of holiday with Ms. Kaur and the Applicant’s inability to provide an explanation when questioned; the Applicant’s lack of knowledge of Ms. Kaur; and the limited evidence of contact between the Applicant and Ms. Kaur.
The visa officer refused the application, and Mr. Maan was banned from Canada for five years.
In upholding the decision, Justice Ahmed stated:
The GCMS interview notes indicate that the Applicant could not provide answers or explanations on several of the seemingly straightforward questions, such as how it was possible to arrange a wedding in 3-4 days, and why the Applicant and Ms. Kaur did not go on holiday together after the wedding. Although I would have been prepared to accept that some of the concerns noted by the Officer could be explained by the fact that this was an arranged marriage, the onus was nevertheless on the Applicant to provide sufficient information to address the concerns of the Officer on the genuineness of the marriage. However, a review of the record reveals that the Applicant simply failed to provide sufficient explanations or evidence to alleviate the Officer’s concerns. Certainly, the Applicant could have better explained some of the questions during the interview as he is attempting to do through the affidavit on this application, but the record shows that he did not. Based on the Applicant’s lack of explanation or knowledge on aspects including his spouse’s intention to go abroad, details on why the marriage was prepared hastily, how it was prepared so quickly, or why they did not go on holiday, the Officer reasonably concluded that the marriage was not genuine, and that the Applicant was thus inadmissible for misrepresentation.
In Bains v. Canada (Citizenship and Immigration), 2020 FC 57, Justice Boswell affirmed that becauuse open spousal work permit applications are work permit applications, that procedural fairness is on the low end of the spectrum. However, pursuant to Madam Justice Fuhrer’s decision in Likhi v. Canada (Citizenship and Immigration), 2020 FC 171, a higher degree of procedural fairness is owed where there is a finding of misrepresentation, and applicants need to be aware of the case that they need to meet. There, Madam Justice Fuhrer found that an interview request which simply stated “bring all required documentation … to [your] interview” without an explanation of what the purpose of the interview was was insufficient. The decision was especially unreasonable as it the interviewing officer apparently refused to look at any photos on Mr. Bains’ cell phone which showed that his relationship was genueine.
As noted above, our firm has been retained to file several judicial review applications involving the refusal of open spousal work permit applications. It is clear that IRCC is not treating such applications the same way that it treats applications by permanent residents or Canadian citizens to sponsor their spouses for immigration. In the latter, applications are rarely refused due to concerns about the bona fides of a marriage without an interview, and the refusal reasons are lengthy. In the work permit context, the refusal reasons are often as short as a normal temporary resident visa refusal. This is despite the fact such a refusal can have long lasting consequences of the ability of a couple to re-unify, as a negative genuinness finding will taint a future Family Class application, and a misrepresentation finding will preclude one. Hopefully the jurisprudence will start reflecting this reality.