Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by s. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”), which 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.

Notwithstanding the fact that there is no set criteria for IRPR r.

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

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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.

There are several 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  »

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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  »

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