Canada fights hard against fraudulent relationships: two years since new sponsorship regulations

as published in in November, 2014

Beware “fraudulent” relationships: the newest immigration regulations regarding relationship fraud are about to be tested.  Over the past four years, the federal government has been modifying immigration rules to crack down on fraudulent marriage, common law and conjugal relationships.  Regulations were passed in August 2012 that required the spouse or partner and their sponsor remain in a relationship for two years following the landing in Canada of the spouse or partner.  For many, those two years are now up and it’s expected that the new rules are about to be tested.

The new regulations apply to spouses or common or conjugal partners in a relationship of two years or less who have no children in common with their sponsor at the time that they submit their sponsorship application.

Officers can refuse

Assessment of a relationship between the sponsor and the sponsored spouse, common law or conjugal partner begins from the time of the filing of the original sponsorship be it in Canada or abroad.  Visa officers and immigration officers can now refuse the sponsored application for permanent residence of a spouse, common-law partner or conjugal partner if they believe that the relationship is not genuine or that the relationship is primarily for the purpose of acquiring any status or privilege in Canada.

Other steps have been taken by the Government of Canada to discourage fraudulent relationships.  For example,  sponsors who were originally sponsored themselves to come to Canada as a spouse, common-law partner or conjugal partner face a five-year waiting period before they can attempt to sponsor another spouse or partner after the breakdown of the relationship with their original sponsor.

Sponsor is financially responsible

Further, even after the breakdown of a relationship, the sponsor remains financially responsible for the sponsored spouse or partner until the end of the three-year undertaking period.  If the sponsored spouse or partner goes on social assistance the sponsor will be responsible to repay the amount to the provincial authorities.

Who can be a sponsor?

The definition of a sponsor means that they must be at least 18 years of age, be residing in Canada if they are a permanent resident, and have filed a sponsorship application for a member of the family class (such as a spouse or partner of the sponsor).  If the sponsor is a Canadian citizen they do not have to be residing in Canada, but must return to Canada with the sponsored spouse or partner once the immigrant visa is issued.  The foreign national who is being sponsored must also be a member of the family class

With respect to the imposition of a condition of landing on the sponsored spouse or partner, the new regulations require that the sponsored spouse or partner must live in an exclusive conjugal relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The term “conjugal relationship” is not defined but is generally interpreted to mean a relationship where individuals are interdependent — financially, socially, emotionally and physically — where they share household and related responsibilities, and where they have made a serious commitment to one another.

Removal in case of a breakup

If the relationship between the spouse or partner with his or her sponsor breaks down, the permanent resident status in Canada of the sponsored spouse or partner may be revoked.  However, if the couple remains together for two years from the time of landing, the condition ends.

The new provisions include exceptions for sponsored spouses or partners where the sponsor dies during the two-year period, or where the sponsored spouses or partners suffer abuse or neglect at the hands of their sponsor or his or her family members.  Abuse would include such things as physical, sexual, psychological or financial abuse, as well as serious neglect (failure to provide the necessaries of life, such as food, clothing, medical care or shelter, and any other omission that result in a risk of serious harm).

Proof of compliance

A Canadian immigration officer can demand proof of compliance based on a tip or evidence they might receive.  They can also do random checks. If the immigration officer has a concern about the genuineness of the relationship, permanent resident status can be revoked.Parties who face removal proceedings do have the ability to challenge the removal first before the Immigration Division and they also can appeal to the Immigration Appeal Division of the Immigration and Refugee Board from any removal order issued against them.  Alleged fraudulent relationship cases form the largest caseload of the Immigration Appeal Division.

Two years are up!

It has been more than two years since the new regulations came into force.  Therefore, where relationships have broken down, enforcement action can be taken.  The alleged breach of condition will in some cases result in the issuance of removal orders against sponsorees and stiff penalties for sponsors if they were parties to fraud.

It is common that a sponsored spouse or partner may bring with them one or more family members.  The immigration fate of these accompanying dependents is tied to that of the sponsoree.  For example, these family members could also be removed if the sponsored spouse or partner were removed.  Likewise, family members would qualify to remain if the sponsored spouse or partner successfully established that an exception on account of death of the sponsor or abuse by him or her or their family members applied to them.

It is unclear if the regulations imposing a condition on landing will reduce or increase the workload of the Immigration Appeal Division.  However, one thing is for certain: government officers have another effective tool at their disposal to assist them in cracking down on fraudulent relationships in our immigration process.

Andrew Z. Wlodyka is a partner of Direction Legal LLP in Vancouver.  He specializes in immigration law.