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.

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