ARCHIVED — Vol. 146, No. 23 — November 7, 2012

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Registration

SOR/2012-227 October 25, 2012

IMMIGRATION AND REFUGEE PROTECTION ACT

Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2012-1390 October 25, 2012

Whereas, pursuant to subsection 5(2) (see footnote a) of the Immigration and Refugee Protection Act (see footnote b), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 32 of the Immigration and Refugee Protection Act (see footnote c), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENT

1. The Immigration and Refugee Protection Regulations (see footnote 1) are amended by adding the following after section 72:

DIVISION 8

CONDITION APPLICABLE TO CERTAIN PERMANENT RESIDENTS

Condition

72.1 (1) Subject to subsections (5) and (6), a permanent resident described in subsection (2) is subject to the condition that they must cohabit in a conjugal relationship with their sponsor for a continuous period of two years after the day on which they became a permanent resident.

Permanent resident subject to condition

(2) For the purpose of subsection (1) and subject to subsection (3), the permanent resident is a person who was a foreign national who

  • (a) became a permanent resident after making an application for permanent residence as a member of the family class, or an application as a member of the spouse or common-law partner in Canada class to remain in Canada as a permanent resident, as applicable;

  • (b) at the time the sponsor filed a sponsorship application with respect to the person under paragraph 130(1)(c) had been the spouse, common-law partner or conjugal partner of the sponsor, as applicable, for a period of two years or less; and

  • (c) had no child in respect of whom both they and the sponsor were the parents at the time the sponsor filed a sponsorship application with respect to the person under paragraph 130(1)(c).

Exclusion

(3) An application referred to in paragraph (2)(a) does not include one that was received before the day on which this section comes into force.

Evidence of compliance

(4) A permanent resident referred to in subsection (1) must provide evidence of their compliance with the condition set out in that subsection to an officer if

  • (a) the officer requests such evidence because they have reason to believe that the permanent resident is not complying or has not complied with the condition; or

  • (b) the officer requests such evidence as part of a random assessment of the overall level of compliance with that condition by the permanent residents who are or were subject to it.

Exception — sponsor’s death

(5) The condition set out in subsection (1) ceases to apply in respect of a permanent resident referred to in that subsection if the sponsor dies during the two-year period referred to in that subsection, the permanent resident provides evidence to that effect to an officer and the officer determines, based on evidence provided by the permanent resident or on any other relevant evidence, that the permanent resident had continued to cohabit in a conjugal relationship with the sponsor until the sponsor’s death.

Exception — abuse or neglect

(6) The condition set out in subsection (1) also ceases to apply in respect of a permanent resident referred to in that subsection if an officer determines, based on evidence provided by the permanent resident or on any other relevant evidence, that

  • (a) the permanent resident
    • (i) is not able to meet that condition throughout the two-year period referred to in that subsection because the permanent resident or a child of the permanent resident or the sponsor, or a person who is related to the permanent resident or the sponsor and who is habitually residing in their household, is subjected by the sponsor to any abuse or neglect referred to in subsection (7) during that period, and

    • (ii) continued to cohabit in a conjugal relationship with the sponsor during that period until the cohabitation ceased as a result of the abuse or neglect; or
  • (b) the permanent resident
    • (i) is not able to meet that condition throughout the two-year period referred to in subsection (1) because the sponsor has failed to protect the permanent resident or a child of the permanent resident or the sponsor, or a person who is related to the permanent resident or the sponsor and who is habitually residing in their household, from any abuse or neglect referred to in subsection (7) during that period by another person who is related to the sponsor, whether that person is residing in the household or not, and

    • (ii) continued to cohabit in a conjugal relationship with the sponsor during that period until the cohabitation ceased as a result of the abuse or neglect.

Abuse and neglect

(7) For the purpose of subsection (6),

  • (a) abuse consists of any of the following:
    • (i) physical abuse, including assault and forcible confinement,

    • (ii) sexual abuse, including sexual contact without consent,

    • (iii) psychological abuse, including threats and intimidation, and

    • (iv) financial abuse, including fraud and extortion; and
  • (b) neglect consists of the failure to provide the necessaries of life, such as food, clothing, medical care or shelter, and any other omission that results in a risk of serious harm.

Related person

(8) For the purposes of subsections (6) and (7), a person is related to the permanent resident or the sponsor if they are related to them by birth, adoption, marriage, common-law partnership or conjugal partnership.

Condition — accompanying family members

72.2 (1) Subject to subsection (2), a permanent resident who became a permanent resident as an accompanying family member of a permanent resident referred to in subsection 72.1(1) is subject to the condition that the permanent resident in respect of whom they were an accompanying family member meets the condition set out in subsection 72.1(1).

Exception — accompanying family members

(2) Subsection (1) does not apply in respect of a permanent resident who became a permanent resident as an accompanying family member of a permanent resident referred to in subsection 72.1(1) if the permanent resident in respect of whom they were an accompanying family member is one to whom an exception referred to in subsection 72.1(5) or (6) applies.

Condition — sponsored person and their accompanying family members

72.3 (1) Subject to subsection (2), a permanent resident who became a permanent resident after being sponsored, either during or after the period referred to in subsection 72.1(1), by a sponsor who is a permanent resident referred to in that subsection, is subject to the condition that the sponsoring permanent resident meets the condition set out in subsection 72.1(1).

Exception — sponsored person and their accompanying family members

(2) Subsection (1) does not apply in respect of a permanent resident who became a permanent resident after being sponsored by a permanent resident referred to in subsection 72.1(1), if the sponsoring permanent resident is one in respect of whom an exception referred to in subsection 72.1(5) or (6) applies.

Clarification

72.4 For greater certainty, for the purposes of subsection 27(2) of the Act, a determination as to whether the permanent resident has failed to comply with the condition set out in subsection 72.1(1) may be made during or after the two-year period referred to in subsection 72.1(1).

COMING INTO FORCE

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

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: The spousal sponsorship process is open to abuse when individuals enter into relationships of convenience in order to facilitate entry into Canada. While firm figures on the extent of relationships of convenience are not available, out of 46 300 immigration applications for spouses and partners processed in 2010, approximately 16% were refused. It is estimated that most of these cases were refused on the basis of a fraudulent relationship. Other countries, such as Australia, the United States and the United Kingdom, employ a form of conditional status period as a deterrent to those who would commit marriage fraud. The lack of a comparable conditional status measure to deter marriage fraud makes Canada vulnerable to this type of unlawful activity.

Description: Citizenship and Immigration Canada (CIC) has introduced amendments to the Immigration and Refugee Protection Regulations (the Regulations) which specify that spouses or common-law or conjugal partners who are in a relationship of two years or less with their sponsor and have no children in common with their sponsor at the time of sponsorship application are subject to a period of conditional permanent residence. The condition requires the sponsored spouse or partner to cohabit in a conjugal relationship with their sponsor for a period of two years following receipt of their permanent resident status. The sponsored spouse or partner may have accompanying family members or may, after their arrival in Canada, sponsor members of the family class (and their accompanying family members). The permanent resident status of these accompanying family members and sponsored members of the family class is contingent upon their sponsor meeting the condition. Apart from the requirement that the sponsored spouse or partner satisfy the condition, conditional permanent residence does not differ from permanent residence in any other way. Permanent residence could be revoked (leading to initiation of removal action) if the condition is not met during the two-year conditional period.

Given concerns about the vulnerability of spouses and partners who are in abusive relationships, the condition ceases to apply in instances where there is evidence of their abuse or neglect by the sponsor, or of a failure by the sponsor to protect them from abuse or neglect by another person related to the sponsor (whether that person is residing in the household or not) during the conditional period. Evidence that the sponsored spouse or partner was cohabiting in a conjugal relationship with their sponsor until the cohabitation ceased as a result of the abuse or neglect is also required. The exception applies to cases where the abuse or neglect occurred during the conditional period and was directed towards the sponsored spouse or partner, a child of either the sponsor or the sponsored spouse or partner, or a person related to either the sponsor or the sponsored spouse or partner who was habitually residing in their household.

The condition also ceases to apply where there is evidence that the sponsor has died while the sponsored person was still subject to the condition and that the sponsored spouse or partner had cohabited in a conjugal relationship with the sponsor up until the time of the sponsor’s death.

Cost-benefit statement: It is estimated that the new Regulations will result in an overall monetized net cost due to the resources required to introduce the conditional measure, investigate cases of alleged fraud and take enforcement action against those found not to be in compliance with the condition, as well as resources associated with the expected increase in admissibility hearings and appeals. The total cost for the analysis period (2012–2021) to implement a conditional perma-nent residence measure is estimated to be approximately $11 million. The total corresponding estimated benefit is $5.6 million, due largely to a reduction in fraudulent spousal and partner applications. By comparing the quantitative costs and benefits of both scenarios, it is estimated that these amendments will generate a monetized cost in the range of $5.3 million over the analysis period. While the cost-benefit analysis reflects a net monetized cost, this cost should be weighed against qualitative benefits expected to result from this measure, such as strengthening the overall integrity of Canada’s immigration program through long-term improvements in identifying and deterring marriage fraud. Although the majority of costs associated with developing and introducing the conditional measure will be absorbed by the Government of Canada, it is recognized that there will be some costs to the sponsored spouses or partners in obtaining and providing evidence in instances of abuse or neglect.

Business and consumer impacts: The conditional permanent residence measure is not anticipated to have business and consumer impacts.

Domestic and international coordination and cooperation: Australia, the United States and the United Kingdom employ conditional measures for sponsored spouses and partners. While the details of each regime vary, they all have the same objective of deterring marriages of convenience and strengthening the overall integrity of the immigration programs. It is expected that introducing a conditional permanent residence measure of two years as a deterrent to marriage fraud will result in Canada no longer being regarded as a “soft target” by those who might otherwise consider using a marriage of convenience to circumvent Canada’s immigration laws, and provide another means for enforcement action in instances of marriage fraud.

Issue

One of the objectives of the Immigration and Refugee Protection Act (the Act) is to facilitate family reunification. The Act enables Canadian citizens or permanent residents to sponsor spouses and partners, children, parents and other prescribed family members.

Unlike the economic program, the family reunification program has no labour market-related requirements such as education, work experience or proficiency in one of Canada’s official languages. Sponsorship requires an undertaking of financial responsibility. Applications to sponsor a spouse or a partner are not assessed against the minimum income requirements applicable in other family class categories and receive priority processing.

While the majority of spouses and partners sponsored for immigration are in legitimate relationships, the spousal sponsorship process is open to abuse when individuals enter into relationships of convenience in order to facilitate their entry into Canada. In some cases, both parties may be aware that the relationship is for immigration purposes. In other cases, one party believes the relationship to be legitimate, while the other intends to leave the relationship shortly after receipt of permanent resident status. Where the sponsor is unknowingly a victim of marriage fraud, such a realization can often cause considerable pain and stress.

Firm figures on the extent of relationships of convenience are not available. What is known is that about 46 300 immigration applications for spouses and partners were processed in 2010 (39 800 from abroad and 6 500 from within Canada). Of these, about 16% (8% of inland applications and 17% of overseas applications) were refused. It is estimated that most of these cases were refused on the basis of a fraudulent relationship. Others were refused on the basis of criminality, security, medical issues and sponsor ineligibility.

What other countries are doing

Other countries, such as Australia and the United States, employ a form of conditional status period of about two years as a deterrent to those who would commit marriage fraud. The United Kingdom extended this period from two to five years on July 9, 2012. In all three countries, the condition requires that the sponsored spouse or partner remain in a legitimate relationship with their sponsor for the duration of the conditional period.

In Australia, conditional status is imposed on spouses in relationships of less than three years (or two years for couples with children of their relationship). In the United States, it is imposed on spouses in a relationship irrespective of whether there are children of the relationship. Until recently the United Kingdom imposed conditional status on spouses in relationships of less than four years. However, since July 9, 2012, conditional status has applied to all spouses and partners in the United Kingdom. Sponsored spouses under a conditional measure in Australia and the United Kingdom are granted temporary status; in the United States, they are granted conditional permanent residence, but must apply to have this condition removed and to retain their status as permanent residents. Prior to the implementation of the regulatory amendments related to conditional permanent residence, Canada did not have a comparable measure to deter marriage fraud.

Objectives

The primary purpose of the conditional measure is to serve as a deterrent to marriages of convenience, thereby strengthening the overall integrity of Canada’s immigration program, while maintaining the spirit of family reunification by continuing to facilitate the reunification of legitimate spouses and partners. The measure also brings Canada’s policies more closely in line with those of other countries, such as the United States, the United Kingdom and Australia. By strengthening Canada’s capacity to deter marriages of convenience, it is expected that Canada will no longer be regarded as a “soft target” by those who might consider using a marriage of convenience to circumvent Canadian immigration laws. Finally, the conditional measure provides another means for enforcement action in instances of marriage fraud, including the issuance of a removal order to the fraudulent spouse or partner on the basis of non-compliance with the condition, which may in turn lead to their removal from Canada.

Description

The amendments to the Regulations specify that, under the family class or the spouse and common-law partner in Canada class, a spouse, common-law partner or conjugal partner who is in a relationship of two years or less with their sponsor and has no children in common with their sponsor at the time of the sponsorship application is subject to a two-year period of conditional permanent residence. The condition requires that the sponsored spouse or partner cohabit in a conjugal relationship with their sponsor for a period of two years following receipt of their permanent resident status in Canada.

The sponsored spouse or partner may have accompanying family members or may, after their arrival in Canada, in turn sponsor members of the family class (and their accompanying family members). In such instances, the permanent resident status of those accompanying family members and sponsored members of the family class is contingent upon their sponsor meeting the condition. Apart from the requirement to satisfy this condition, conditional permanent residence does not differ from permanent residence.

Permanent residence could be revoked (leading to initiation of removal action) if the condition of cohabiting in a conjugal relationship is not met by the sponsored spouse or partner during the two-year conditional period, whether confirmed during that period or at a later time. As is currently the case, a number of factors are considered in the assessment of the legitimacy of the “conjugal relationship,” whether the sponsored person has been sponsored as a spouse, common-law partner or conjugal partner of the sponsor. The sponsored spouse or partner is required to provide evidence of their compliance with the condition if it is requested by an officer because they have reason to believe that the sponsored spouse or partner is not complying or has not complied with the condition, or if the officer requests such evidence as part of a random assessment of the overall level of compliance with the condition.

There are two exceptions to the proposed conditional measure:

(a) Abuse or neglect

Given concerns about the vulnerability of spouses and partners in abusive relationships, the condition ceases to apply in instances where there is evidence of abuse (i.e. physical, sexual, psychological, or financial) or neglect (failure to provide the necessities of life) by the sponsor, or a failure by the sponsor to protect from abuse or neglect, during the conditional period, by another person related to the sponsor, whether that person is residing in the household or not. Evidence that the sponsored spouse or partner was cohabiting in a conjugal relationship with their sponsor until the cohabitation ceased as a result of the abuse or neglect will also be required.

The exception applies in cases where the abuse or neglect occurred during the conditional period and was directed towards the sponsored spouse or partner, a child of either the sponsor or the sponsored spouse or partner, or a person related to either the sponsor or the sponsored spouse or partner who was habitually residing in their household.

The condition ceases to apply where an officer determines, based on evidence, that (1) such abuse or neglect, or failure by the sponsor to protect from abuse or neglect, has occurred during the conditional period; and (2) the sponsored spouse or partner cohabited in a conjugal relationship with the sponsor until the cohabitation ceased as a result of abuse or neglect. Guidelines to assist officers in processing cases involving claims of abuse or neglect, and in handling sensitive information related to them, have been developed through consultations with various groups, including non-governmental organizations with expertise in domestic violence and law enforcement agencies, and are available at the following Web page: www.cic.gc.ca.

After the prepublication of the proposed amendments, a change was made to the interpretation of the term “related person” referred to in the abuse and neglect exceptions. The term “by blood” was replaced with “by birth” in order to include persons born through assisted human reproduction technologies. The change was made to ensure federal laws accurately reflect Canadian domestic law and, in the context of the conditional measure, to avoid situations where individuals who are related to one another under Canadian law would not be recognized as such for the purposes of the family violence exception.

(b) Death of a sponsor

The condition also ceases to apply where there is evidence that the sponsor has died while the sponsored spouse or partner was still subject to the condition, and that the sponsored spouse or partner had cohabited in a conjugal relationship with the sponsor up until the time of the sponsor’s death.

Amending provision

There was uncertainty as to whether the proposed regulatory amendments, as published in Part Ⅰ of the Canada Gazette on March 10, 2012, could be interpreted as applying to those whose applications are received before those amendments come into effect, but are still pending a decision at that time. To create certainty, a provision has been added to the regulatory amendments that clarifies that the conditional measure will only apply to applications received on or after the day that the amendments come into force.

Regulatory and non-regulatory options considered

There have been a number of other regulatory and non-regulatory measures adopted to address marriages of convenience. On September 30, 2010, Citizenship and Immigration Canada (CIC) amended section 4 of the Immigration and Refugee Protection Regulations to clarify the test used to determine whether or not a family relationship was entered into in “bad faith.” This clarification is intended to protect the integrity of the immigration system and enable a more consistent assessment and identification of relationships of convenience by ensuring that a finding of “bad faith” can be made if a relationship was entered into primarily for the purpose of acquiring any status or privilege under the Act, or if it is not genuine. Assessing the bona fides of a relationship prior to granting immigration status continues to be the most important and effective way to deter marriage fraud.

Through a separate regulatory proposal, CIC introduced a measure to bar an individual who became a permanent resident as a spouse, common-law or conjugal partner from sponsoring a subsequent spouse, common-law or conjugal partner for a period of five years following the date they became a permanent resident. The primary intent of this regulatory amendment is to deter sponsored spouses and partners from using a relationship of convenience as a means of circumventing Canada’s immigration laws by abandoning their sponsor soon after arriving in the country and then seeking to sponsor a new spouse or partner. The regulatory amendment for this measure came into force on March 2, 2012.

Operationally, and particularly at some overseas missions known to have a high incidence of marriage fraud, CIC relies on interviews of spouses and partners who are being sponsored to identify and deter fraudulent marriage applications. While the use of interviews requires resources, such interviews have proven effective in identifying and deterring marriages of convenience.

An anti-fraud media campaign that included informational materials on marriage fraud on CIC’s Web page, Web page advertisements and a short video posted to social media sites on marriage fraud was launched in the spring of 2011. The campaign ran again in the spring of 2012. Further immigration anti-fraud public messaging — including a marriage fraud component — is planned for 2013.

While these new and ongoing measures contribute to deterring marriage fraud at the onset of the sponsorship process, i.e. prior to permanent residence being granted, they are of little help in identifying and enforcing removals on fraudsters who manage to make their way to Canada. The conditional permanent residence measure provides the Government with an additional enforcement tool against marriage fraud.

Benefits and costs

A cost-benefit analysis of the conditional permanent residence measure has been completed and is available upon request. The cost-benefit analysis assumes a baseline scenario whereby newly sponsored spouses, common-law and conjugal partners are not subject to a conditional measure. The baseline was then compared with the conditional permanent residence framework. Based on this comparison, it is estimated that the regulatory change is expected to generate an overall monetized net cost due to the resources required to introduce the conditional measure, investigate cases of alleged fraud and take enforcement action against those found to be non-compliant with the condition, as well as resources associated with the expected increase in admissibility hearings and appeals. The total estimated cost for the analysis period (2012–2021) to implement a conditional permanent residence measure is projected to be approximately $11 million. Following the publication of the proposed amendments in the Canada Gazette, Part Ⅰ, on March 10, 2012, it was discovered that a miscalculation had occurred, which resulted in the slight under-evaluation of overall estimated benefits. Accordingly, with that miscalculation corrected, the total corresponding estimated benefit has been increased from the original estimate of $5.5 million to $5.6 million. By comparing the quantitative costs and revised benefits of both scenarios, it is estimated that the amendments will generate a monetized cost in the range of $5.3 million over the analysis period, rather than the previous estimate of $5.5 million. However, as previously noted, there are non-monetized benefits that will result from the amendments, such as

  • improving the integrity of Canada’s immigration program by reducing fraudulent activity in the program;
  • strengthening government capacity to detect relationships of convenience and remove those who use marriage fraud to circumvent Canadian immigration laws;
  • reducing the vulnerability of Canadians who may be subject to fraudulent intentions by foreign nationals as a result of current immigration policies; and
  • helping potential sponsors avoid the pain and stress associated with being a victim of marriage fraud.

Cost-Benefit Analysis Results and Summary Table

Costs, benefits and distribution

Base Year 2012

Year Five 2017

Final Year 2021

Total

Annual Average

A. Quantified impacts in millions of present value dollars (in 2012 dollars)

Benefits

Stakeholders

 

 

 

 

 

Processing benefit of deterred fraudulent spouses and partners.

Government of Canada

0.0

0.6

0.3

5.5

0.6

Reduced financial liability for sponsors by deterring fraudulent spouses and partners.

Canadian sponsors

0.00

0.02

0.0

0.14

0.01

Total benefits

 

0.00

0.6

0.3

5.6

0.6

Costs

Stakeholders

 

 

 

 

 

Administrative costs: includes transition costs (updating forms, communications, training, etc.), corporate service advisory costs, and call centre costs due to an anticipated increase in call volumes.

CIC / Government of Canada

0.6

0.2

0.07

1.7

0.2

Processing and enforcement costs: includes costs associated with increases in Level 1 (desk) and Level 2 (field) investigations, increases in hearings with respect to removal orders before the Immigration Division (ID) and Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), removals and detention, and verification costs for claims of abuse or neglect.

CIC, CBSA(see footnote 2), IRB

0.0

1.2

0.9

8.6

0.9

Costs to provide evidence for exceptions.

Conditional permanent residents

0.00

0.07

0.06

0.7

0.07

Total costs

 

0.6

1.5

1.0

11.0

1.1

Net benefits (NPV)

–5.3

–0.5

B. Qualitative impacts

Benefits

Description of cost or benefit

Strengthening the tools available to detect relationships of convenience and to take enforcement action.

It is anticipated that the conditional measure will provide a tool for enforcement action and contribute over time to the Government of Canada’s understanding of marriage fraud through improved tracking and identification of marriage fraud cases.

Improved integrity associated with reducing fraudulent activity in Canada’s immigration program.

It is anticipated that the introduction of a conditional measure will be a benefit to sponsors, sponsors’ family members, and Canadian society by serving as a deterrent to marriages of convenience, thus strengthening the overall integrity of Canada’s immigration program.

Helping potential sponsors avoid the pain and stress associated with being a victim of marriage fraud. This measure reduces vulnerability of Canadians who may be subject to marriage fraud.

It is anticipated that deterring fraudulent spouses and partners through the use of a conditional measure will reduce the vulnerability of Canadians to this form of fraud, as well as all the pain and stress such fraud could cause potential sponsors.

Costs

Description of cost or benefit

Concerns of increased vulnerability to domestic violence.

There are concerns that the conditional status measure could increase the vulnerability of sponsored spouses and partners to domestic violence, as applicants may mistakenly believe that they must remain in an abusive relationship in order to maintain their permanent resident status. To mitigate these concerns, the condition will cease to apply where there is evidence of abuse or neglect by the sponsor, or a failure by the sponsor to protect from abuse or neglect.

Guidelines to assist officers in processing cases involving claims of abuse or neglect, and in handling sensitive information related to them, have been developed through consultations with various groups, including non-governmental organizations with expertise in domestic violence.

Other recourse costs.

In instances where a marriage of convenience is determined to have occurred, the Immigration and Refugee Board’s Immigration Division (ID) may hold an admissibility hearing and decide whether to issue a removal order. Removal orders can be appealed to the Immigration Appeal Division (IAD). Where the IAD upholds the ID’s decision to issue a removal order, removal action may be initiated. In such circumstances, the person affected may pursue other avenues to remain in Canada. Costs associated with this activity were not quantified due to lack of reliable data.

Death of sponsor exception.

The condition will also cease to apply where there is evidence that the sponsor has died while the sponsored person is still subject to the condition, and that the sponsored spouse or partner had cohabited in a conjugal relationship with the sponsor up until the time of the sponsor’s death.

Given the small number of cases where this exception is anticipated to apply, as well as the minor costs that such exceptions will imply, with respect to the gathering of evidence by the sponsored spouse or partner, these costs are examined qualitatively for the purposes of the cost-benefit analysis.


Rationale

As described above, regulatory and non-regulatory initiatives have been undertaken by CIC to curb marriage fraud. While they are consistent with the Government’s 2011 commitment in the Speech from the Throne to protect the integrity of Canada’s immigration system through, among other initiatives, the introduction of various measures to address marriage fraud, they are not sufficient. Under the existing regulations, limited tools are available to efficiently identify and enforce removals as a result of marriage fraud once sponsored spouses and partners have been granted permanent residence in Canada. It is believed that the number of marriages of convenience in Canada would continue to present a problem, undermining the integrity of the immigration system and, in some instances, victimizing Canadian sponsors and their families if the status quo is maintained. The conditional permanent residence measure will not only act as an additional deterrent to marriage fraud, but will also provide the Government with an additional enforcement tool against this type of fraud.

Although these regulatory amendments have a net monetized cost, the non-monetized benefits will outweigh the costs. In conjunction with non-regulatory anti-fraud measures, the regulatory changes enhance the integrity of Canada’s spousal sponsorship immigration program.

The Department of Citizenship and Immigration recognized the concerns related to the vulnerability of spouses and partners who are in abusive relationships and paid particular attention to the development of the exception to the condition for spouses and partners in such situations expressly to prevent putting these individuals at further risk.

Consultation

The Minister of Citizenship and Immigration held a series of town hall meetings in the fall of 2010 to gather the public’s views on relationships of convenience and ideas on how to address them. During these sessions, the Minister heard from many sponsors who had been misled by a foreign national who left them soon after receiving their Canadian permanent resident status.

The Department of Citizenship and Immigration also held online consultations in the fall of 2010 to gather the public’s views on marriages of convenience. The consultations generated approximately 2 400 responses from the general public and 90 from individuals who self-identified as representatives of stakeholder organizations. Overall, three quarters (77%) of respondents indicated that they considered relationships of convenience to be a “serious” or “very serious” threat to the integrity of Canada’s immigration system. The consultations revealed strong support for measures to address marriages of convenience. The results also indicated strong support for the introduction of a form of conditional status period, with more than two thirds of respondents in favour of such a measure.

A Notice of Intent outlining the proposed conditional permanent residence measure was published in the Canada Gazette, Part Ⅰ, on March 26, 2011, followed by a 30-day comment period. Eighty-four responses, mostly from social service providers (e.g. immigrant settlement organizations and shelter workers) and immigration experts (e.g. lawyers and academics), were received by CIC. The majority of these respondents expressed concern that a conditional measure could increase the vulnerability of sponsored spouses and partners to domestic violence.

The Department of Citizenship and Immigration also consulted the provinces and territories on the proposal to introduce a conditional measure. While there was agreement that further action should be taken to address marriages of convenience, concerns were expressed that the proposed conditional period would increase the vulnerability of sponsored spouses and partners to domestic violence.

The Department of Citizenship and Immigration consulted other federal departments throughout the development of this regulatory package, including the Canada Border Services Agency (CBSA), as the Agency shares some of the responsibilities under the Act, Status of Women Canada and the Royal Canadian Mounted Police. Other countries where a similar conditional measure exists were consulted as well.

Prepublication comments

Following the prepublication of amendments in the Canada Gazette, Part Ⅰ, on March 10, 2012, a total of 35 comments were received. Of these, 7 were supportive of the Government’s regulatory proposal, 13 were opposed, and 15 either were neutral or did not refer to the prepublished Regulations.

The majority of the comments were from the general public; however, a number of submissions were also provided by stakeholders and professionals working in a field related to the Regulations. Stakeholders who provided comments included the Canadian Bar Association (CBA), the Canadian Council for Refugees (CCR), the Ethiopian Society of Winnipeg, LEGIT-Vancouver, the Metropolitan Action Committee on Violence Against Women and Children (METRAC), the Metro Toronto Chinese & Southeast Asian Legal Clinic, the Ontario Association of Interval and Transition Houses (OAITH), and the Ontario Council of Agencies Serving Immigrants (OCASI).

Of the seven supportive comments received, all of which were from the public, two simply indicated their support for the proposed Regulations, and five indicated their support and provided additional recommendations, such as increasing the duration of the conditional period.

Issues presented in the 13 opposing submissions somewhat varied. However, a number of concerns were consistently raised by stakeholders. Major concerns raised were as follows:

  • Questioning the necessity and effectiveness of the measure;
  • Lack of evidence to support that marriages of convenience are a problem;
  • Lack of conclusive evidence of effectiveness from other countries with conditional measures;
  • The vulnerability of sponsored spouses and children;
  • Considerations related to the best interest of the child;
  • Increase of power in the hands of the sponsor; and
  • Unfairness of the conditional measure towards women and same-sex couples.

With respect to the other 15 submissions, most were from victims of marriage fraud seeking assistance or from persons wishing to disclose information regarding a marriage of convenience. A number of submissions, from both the public and professionals working in a field related to the Regulations, inquired or raised concerns about having the measure apply to applications already in the queue. A few submissions raised concerns regarding existing CIC processes or requested other types of clarifications regarding the proposed Regulations.

Following the review and analysis of comments received, it was determined that the proposed Regulations are necessary to efficiently deter and take action against marriage fraud. Concerns raised following the April 2012 prepublication mirror those signalled in response to the March 2011 Notice of Intent and most have already been addressed either in the Regulations or corresponding guidelines. For these reasons, no further amendments, other than the added transitional provision and the change to the definition of “related persons,” have been made to the Regulations.

Implementation, enforcement and service standards

Guidelines to assist officers in processing cases involving claims of abuse or neglect, and in handling sensitive information related to them, have been developed through consultations with various groups, including non-governmental organizations with expertise in domestic violence, and law enforcement agencies, and are available at the following Web page: www.cic.gc.ca.

As a result of the introduction of conditional permanent residence, additional investigations (e.g. checks of internal records systems, background checks, research and phone calls made to a sponsor or conditional permanent resident and interviews) may be undertaken in cases where there is reason to believe that the condition is not being met or has not been met. CIC will also perform random assessments of the overall level of compliance with the condition on an ongoing basis. These could lead to an annual increase in inadmissibility reports from the CBSA and CIC on the basis of non-compliance with the condition. These inadmissibility reports could in turn lead to the issuance of removal orders by the Immigration Division of the Immigration and Refugee Board.

Citizenship and Immigration Canada will monitor the effectiveness of the conditional permanent residence measure once it comes into force in order to assess its impact in the Canadian context.

Contact

Caroline Riverin Beaulieu
Deputy Director
Social Policy and Programs
Immigration Branch
Citizenship and Immigration Canada
Telephone: 613-954-3483
Fax: 613-941-9014
Email: Caroline.RiverinBeaulieu@cic.gc.ca

Footnote a
S.C. 2008, c. 3, s. 2

Footnote b
S.C. 2001, c. 27

Footnote c
S.C. 2001, c. 27

Footnote 1
SOR/2002-227

Footnote 2
CBSA: Canada Border Services Agency