Vol. 151, No. 9 — May 3, 2017
SOR/2017-56 April 13, 2017
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Immigration and Refugee Protection Regulations
P.C. 2017-379 April 13, 2017
Whereas, pursuant to subsection 5(2) (see footnote a) and section 32 (see footnote b) of the Immigration and Refugee Protection Act (see footnote c), the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations to be laid before each House of Parliament, substantially in the annexed form;
His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1), paragraphs 14(2)(d) and 26(d) and section 32 (see footnote d) of the Immigration and Refugee Protection Act (see footnote e), makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Regulations Amending the Immigration and Refugee Protection Regulations
1 Division 8 of Part 5 of the Immigration and Refugee Protection Regulations (see footnote 1) is repealed.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:
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:
Make reasonable efforts to provide a workplace that is free of abuse
7 (1) The conditions set out in Division 8 of Part 5 of the Immigration and Refugee Protection Regulations as that Division read immediately before 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 coming into force of these Regulations, or before that date, is removed.
Coming into Force
8 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.)
There was a condition applicable to certain permanent residents that required a sponsored spouse or partner to cohabit with their sponsor for two years following the day on which they became a permanent resident. If the couple did not cohabit for the required two years, the sponsored spouse or partner could have lost their permanent resident status. This created an imbalance between the sponsor and their spouse or partner, which could have made the sponsored spouse or partner more vulnerable.
A sponsored spouse or partner can potentially be vulnerable for many reasons, including age, gender, official language proficiency, isolation, and financial dependence on their sponsor. The two-year cohabitation requirement compounded these vulnerabilities, and spouses and partners who were victims of abuse or neglect were most at risk in these situations. While the conditional permanent residence provisions contained an exception to the cohabitation requirement in cases of abuse or neglect, there was a risk that sponsored spouses and partners could have remained in abusive relationships. This could have been 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.
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 required 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 were in a relationship for two years or less and had no children in common. In cases where the sponsor and their spouse or partner did not cohabit for two years, the spouse or partner could have had their permanent resident status revoked and be removed from Canada. As an update to data provided in the prepublication of this regulatory change, since the introduction of conditional permanent residence, approximately 94 400 spouses and partners along with their children were admitted to Canada as conditional permanent residents. This represents approximately 52% of admissions of spouses, partners, and their children within the family reunification program. The conditional permanent residence provided that a sponsored spouse or partner could have requested an exception to the two-year cohabitation requirement if (i) their sponsor died; or (ii) if they, their child, or a family member who was habitually residing in their household was subjected to abuse or neglect by the sponsor (or by a relative of the sponsor). In these cases, the sponsored spouse or partner could have requested 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 was granted, the condition ceased to apply and the spouse or partner’s permanent resident status was no longer subject to the condition. A sponsored spouse or partner could have requested an exception after having left an abusive relationship.
As an additional statistical update, between January 1, 2013, and September 30, 2016, 597 spouses and partners requested an exception to the requirement to cohabit with their sponsor due to abuse or neglect. A majority (70%) of these requests were from women. Out of the 528 cases for which a decision had been made on the request for the exception, 78% 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 immigration 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, the Department 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.
The objective of the 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 will help ensure that sponsored spouses and partners are not potentially placed at an increased risk of vulnerability. It will also support the Government’s commitment to family reunification and its emphasis on gender equality and combatting gender-based violence.
Division 8 of Part 5 of the Immigration and Refugee Protection Regulations — which required two years of cohabitation as a condition of permanent residence for sponsored spouses and partners who, at the time of their application, had been in the relationship for two years or less and have no children in common — was repealed in its entirety upon registration of the amendments.
The Immigration and Refugee Protection Regulations were also 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 “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.
The Department’s proposal to repeal conditional permanent residence for sponsored spouses and partners was prepublished in the Canada Gazette, Part I, on October 29, 2016, followed by a 30-day comment period. During this period, comments from 29 individuals and organizations were received.
The Department advised the provinces and territories of the proposed changes and did not receive any comments or concerns from these stakeholders.
Among comments received from individual members of the public, support was mixed, with an equal proportion of those in favour of the proposal as those who opposed it. Those who were in favour were of the view that repealing conditional permanent residence will result in a positive change for vulnerable spouses experiencing abuse or neglect. Those who were against the repeal expressed concern that, without conditional permanent residence, Canadians will be at a higher risk of marriage fraud from foreign nationals seeking to marry a Canadian citizen or a permanent resident for the sole purpose of gaining entry to Canada.
The vast majority of organizational stakeholders, many of whom provide support services to newcomers to Canada, expressed strong support for the repeal as an important measure to protect vulnerable newcomers and to address gender-based violence. Within this stakeholder group, some respondents encouraged the Government to examine additional ways in which to help protect vulnerable individuals within Canada’s immigration system.
A number of stakeholders expressed their desire to see the regulatory amendment come into force as soon as possible, and underlined the importance of communicating the repeal to affected individuals. The Department has worked to implement this change efficiently within the established regulatory process and is undertaking extensive stakeholder outreach to ensure that affected individuals are aware of the repeal.
Additional stakeholders expressed their views on conditional permanent residence as witnesses before the Standing Committee for Citizenship and Immigration, during the Committee’s recent study of family reunification. These stakeholders included representatives from immigrant-serving organizations, Canada’s legal community, and academia. Within this group of stakeholders, a strong majority were in favour of this regulatory change.
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.
On balance, the Department maintains that the program integrity benefits of conditional permanent residence have not been shown to outweigh the potential 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. The Department notes that these cases are taken seriously. Any cases of misrepresentation that are currently under investigation or subject to a hearing or removal order will continue to proceed following the repeal of conditional permanent residence. Any future cases involving suspected misrepresentation will also continue to be subject to investigation following the repeal.
However, the repeal of conditional permanent residence is being made in recognition that the majority of relationships are genuine, and the majority of applications are made in good faith. Eliminating conditional permanent residence will 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
As of registration, these provisions of the Regulations are no longer applicable to sponsored spouses and partners or to their accompanying family members. The repeal applies to those who have a sponsorship application in process and those currently subject to the condition.
As the repeal eliminates a regulatory requirement, program delivery instructions will be issued to inform staff that the requirement is no longer to be enforced. It is not expected that the repeal will affect application processing times. The Department continues to monitor application approval rates in the spouses, partners, and children reunification program, safeguard against potential fraudulent applications, and work with Public Safety Canada to identify emerging fraud trends.
Social Immigration Policy and Programs
Immigration, Refugees and Citizenship Canada