Determining Whether a Marriage Is Genuine

15th May 2015 Comments Off on Determining Whether a Marriage Is Genuine

Last updated on September 21st, 2020

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.

 » Read more about: Determining Whether a Marriage Is Genuine  »

Read more ›

Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations

7th Jul 2013 Comments Off on Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations

Last updated on September 20th, 2019

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 about: Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations  »

Read more ›

One-Sided Marriages

26th Oct 2012 Comments Off on 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”,

 » Read more about: One-Sided Marriages  »

Read more ›