ARCHIVED — Vol. 150, No. 44 — October 29, 2016

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Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

There is a condition applicable to certain permanent residents that requires a sponsored spouse or partner to cohabit with their sponsor for two years following their arrival in Canada to maintain their permanent resident status. If the couple does not cohabit for the required two years, only the sponsored spouse or partner is at risk of losing their permanent resident status, regardless of the reason the cohabitation ceased. This creates an imbalance between the sponsor and their spouse or partner, which can make the sponsored spouse or partner more vulnerable.

A sponsored spouse or partner can be vulnerable for many reasons, including age, gender, official language proficiency, isolation, and financial dependence on their sponsor. The two-year cohabitation requirement can compound these vulnerabilities, and spouses and partners who are victims of abuse or neglect are most at risk in these situations. While the conditional permanent residence provisions contain an exception to the cohabitation requirement in cases of abuse or neglect, there is a risk that sponsored spouses and partners could remain in abusive relationships. This could be due to a lack of knowledge about the exception, the perceived challenge of applying for and receiving an exception, or the fear of losing their immigration status.

Background

One of the three pillars of the Immigration Protection and Refugee Act is family reunification. To be eligible for sponsorship through the family reunification program, foreign national spouses or partners must be in a genuine relationship with their Canadian citizen or permanent resident sponsor. Spousal immigration can be open to misuse when a foreign national enters into a relationship with a Canadian citizen or permanent resident primarily to obtain immigration status in Canada.

Conditional permanent residence

On October 25, 2012, a period of conditional permanent residence was added to the Immigration and Refugee Protection Regulations to deter fraudulent applications and to help identify fraudulent relationships in the family reunification program. Conditional permanent residence requires a sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a continuous period of two years after obtaining permanent resident status if, at the time of their application, they have been in the relationship for two years or less and have no children in common. In cases where the sponsor and their spouse or partner do not cohabit for two years, the spouse or partner can have their permanent resident status revoked and be removed from Canada. In the first three years following the introduction of conditional permanent residence (2013, 2014 and 2015), 58 218 spouses and partners along with their children were admitted to Canada as conditional permanent residents. This represents approximately 42% of admissions of spouses, partners, and their children within the family reunification program.

A sponsored spouse or partner can request an exception to the two-year cohabitation requirement if (i) their sponsor dies, or (ii) if they, their child, or a family member who is habitually residing in their household is subject to abuse or neglect by the sponsor (or by a relative of the sponsor). In these cases, the sponsored spouse or partner may request an exception to the condition by contacting Immigration, Refugees and Citizenship Canada (also referred to as “the Department” in this document). If the request for exception is granted, the condition ceases to apply and the spouse or partner’s permanent resident status is no longer subject to the condition.

In the first three years following the introduction of conditional permanent residence (2013, 2014 and 2015), 307 spouses and partners requested an exception to the requirement to cohabit with their sponsor due to abuse or neglect. A majority (75%) of these requests were from women. Out of the 260 cases for which a decision had been made on the request for the exception, 79% were approved.

Other program integrity measures

There are a number of other legislative and regulatory provisions and tools in place to support program integrity objectives and to identify non-genuine relationships within the family reunification program. The Department’s first line of defence against marriage fraud is visa officers. Officers assess all applications, and must be satisfied that a relationship is bona fide before granting the sponsored spouse or partner their permanent resident status. An officer will refuse the application if it is determined that the relationship is not genuine or was entered into primarily for the purpose of acquiring permanent residence in Canada.

There is also a five-year bar on sponsorship to deter people from using a marriage of convenience to come to Canada. Sponsored spouses or partners must wait five years from the day they are granted permanent resident status in Canada before they themselves are eligible to sponsor a new spouse or partner. In addition, Immigration, Refugees and Citizenship Canada conducts quality assurance exercises to verify and assess the consistency of decisions made by immigration officers. It also works closely with Public Safety Canada and its portfolio agencies to inform the refinement of risk indicators and anti-fraud initiatives.

In a small number of cases, marriage fraud may not be detected at the time of processing. In cases where it is subsequently proven that the spouse or partner misrepresented or withheld relevant facts at the time of their application, they could lose their permanent resident status and be removed from Canada on the basis of misrepresentation.

Objectives

The objective of the proposed repeal of the conditional permanent residence regulatory provisions is to eliminate the requirement for spouses or partners to cohabit with their sponsor for two years. This would help to ensure that sponsored spouses and partners are not placed at an increased risk of vulnerability. It would also support the Government’s commitment to family reunification and its emphasis on gender equality and combatting gender-based violence.

Description

Division 8 of Part 5 of the Immigration and Refugee Protection Regulations — which requires two years of cohabitation as a condition of permanent residence for sponsored spouses and partners who, at the time of their application, have been in the relationship for two years or less and have no children in common — would be repealed in its entirety.

The Immigration and Refugee Protection Regulations would also be amended by adding the definition of “abuse,” currently found in paragraph 72.1(7)(a), to follow after section 196.1. The definition of abuse is used in Part 11 — Workers. 

The proposed regulatory amendments would come into force upon registration.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments, as there are no changes in administrative costs to business.

Small business lens

The small business lens does not apply to this proposal, as there are no costs to small business.

Consultation

The Department’s plan to make changes to conditional permanent residence for sponsored spouses and partners was published on the Immigration, Refugees and Citizenship Canada Web site as part of its Forward Regulatory Plan. It specified that “the public will have the opportunity to comment on the proposed text of the regulations when they are prepublished in the Canada Gazette, Part I, anticipated in fall 2016.”

The Department advised the provinces and territories of proposed changes to permanent residence for spouses and partners during a teleconference in May 2016.

Rationale

When conditional permanent residence was introduced, it was intended to deter fraudulent spouses from applying and entering Canada with non-genuine intentions. The Department is not able to conclude, based on the available data, whether or not conditional permanent residence has had its intended impact of deterring non-genuine sponsorship applications, as it is not possible to measure directly the number of deterred applications. Furthermore, a review of application approval and refusal rates has not identified any conclusive trends. Data for the same period indicates that a number of sponsored spouses likely suffered abuse and neglect before they were granted an exception to the cohabitation requirement.

On balance, the program integrity benefits of conditional permanent residence have not been shown to outweigh the risks to vulnerable sponsored spouses and partners subject to the two-year cohabitation requirement.

It is important to acknowledge that, in repealing conditional permanent residence, it is possible that some foreign nationals who may be currently deterred from misleading Canadians into fraudulent marriages would attempt to use the family reunification program to seek entry to Canada with non-genuine intentions. It is possible that some of these applications may be approved, which could lead to significant emotional stress and potential financial liability for affected sponsors.

However, the proposed repeal of conditional permanent residence recognizes that the majority of relationships are genuine, and the majority of applications are made in good faith. Eliminating conditional permanent residence would facilitate family reunification, remove the potential increased vulnerability faced by abused and neglected spouses and partners, and support the Government’s commitment to combatting gender-based violence.

Implementation, enforcement and service standards

Upon repeal, these provisions of the Regulations would no longer apply to sponsored spouses and partners or to their accompanying family members. The repeal would apply to those who have a sponsorship application in process and those currently subject to the condition.

If approved, the regulatory repeal is anticipated to come into force in spring 2017. As the repeal would eliminate a regulatory requirement, program delivery instructions would be issued to inform staff and the requirement would no longer be enforced. It is not expected that the repeal would affect application processing times. The Department would continue to monitor application approval rates in the spouses, partners, and children reunification program and work with Public Safety Canada to identify emerging fraud trends.

Contact

David Cashaback
Director
Social Immigration Policy and Programs
Immigration, Refugees and Citizenship Canada
Email: IRCC.ConditionalPermanentRes-ResPermanenteConditionnelle.IRCC@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 5(1), paragraphs 14(2)(d) and 26(d) and section 32 (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to David Cashaback, Director, Social Immigration Policy and Programs, Immigration Branch, Immigration, Refugees and Citizenship Canada (email: IRCC.ConditionalPermanentRes-ResPermanenteConditionnelle.IRCC@cic.gc.ca).

Ottawa, October 20, 2016

Jurica Čapkun
Assistant Clerk of the Privy Council

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 Division 8 of Part 5 of the Immigration and Refugee Protection Regulations (see footnote 1) is repealed.

2 The Regulations are amended by adding the following after section 196.1:

Abuse

196.2 For the purpose of this Part, abuse consists of any of the following:

  • (a) physical abuse, including assault and forcible confinement;
  • (b) sexual abuse, including sexual contact without consent;
  • (c) psychological abuse, including threats and intimidation; and
  • (d) financial abuse, including fraud and extortion.

3 Subparagraph 209.2(1)(a)(iv) of the Regulations is replaced by the following:

  • (iv) the employer must make reasonable efforts to provide a workplace that is free of abuse; and

4 Subparagraph 209.3(1)(a)(v) of the Regulations is replaced by the following:

  • (v) the employer must make reasonable efforts to provide a workplace that is free of abuse;

5 Subsection 209.96(4) of the Regulations is replaced by the following:

Separate violation — abuse

(4) A failure to comply — that is not justified under subsection 209.2(3) or 209.3(3) — with the condition set out in item 17 of Table 1 of Schedule 2 with respect to any one of the elements set out in paragraphs 196.2(a) to (d) constitutes a separate violation.

6 The portion of item 17 of Table 1 of Schedule 2 to the Regulations in column 2 is replaced by the following:

Item

Column 2

Short-form Description

17

Make reasonable efforts to provide a workplace that is free of abuse

Transitional Provisions

7 (1) For greater certainty, the conditions set out in Division 8 of Part 5 of the Immigration and Refugee Protection Regulations as that Division read immediately before the date of the coming into force of these Regulations do not apply to sponsorship applications that are pending on that date.

(2) Any condition imposed on a person under Division 8 of Part 5 of the Immigration and Refugee Protection Regulations as that Division read immediately before the date of the coming into force of these Regulations is removed.

Coming into Force

8 These Regulations come into force on the day on which they are registered.

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