Discussion of Recent Regulatory Changes Implemented by the Government of Canada to Combat Relationship Fraud

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1 IMMIGRATION ISSUES 2014 UPDATE PAPER 3.2 Discussion of Recent Regulatory Changes Implemented by the Government of Canada to Combat Relationship Fraud These materials were prepared by Andrew Z. Wlodyka of Direction Legal LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, December Andrew Z. Wlodyka

2 3.2.1 DISCUSSION OF RECENT REGULATORY CHANGES IMPLEMENTED BY THE GOVERNMENT OF CANADA TO COMBAT RELATIONSHIP FRAUD I. Introduction... 1 II. Comprehensive Strategy to Combat Relationship Fraud... 2 A. Amendment to the bona fides Provision under the Regulations... 2 B. Five Year Sponsorship Bar... 3 C. Assessment of Whether an Applicant is a Member of the Family Class... 4 D. Conditions Imposed on Landing... 4 E. Operational Instructions... 6 III. Implementation... 7 A. Imposition of the Condition... 7 B. Compliance with the Condition... 8 C. Where There is Evidence of Non-compliance with the Condition... 9 D. Requests for Exception under Section 72.1(5) or (6) of the IRPR IV. Enforcement A. Sponsorship Undertakings B. Citizenship Applications V. Final Comments VI. Appendix Government of Canada: Selected News Releases I. Introduction The purpose of this article is to review recent regulatory changes introduced by the Government of Canada to combat the alleged use of relationship fraud by unscrupulous individuals who take advantage of Canadians and permanent residents of Canada in order to obtain permanent resident status in Canada. Citizenship, Immigration and Multiculturalism Minister Jason Kenney stated on October 26, 2012: There are countless cases of marriage fraud across the country. I have consulted widely with Canadians, and especially with victims of marriage fraud, who have told me clearly that we must take action to stop this abuse of our immigration system. Sometimes the sponsor in Canada is being duped and sometimes it s a commercial transaction. Implementing a two-year conditional permanent residence period will help deter marriage fraud, prevent the callous victimization of innocent Canadians and help us put an end to these scams. 1 1 The Jig Is UP on Marriage Fraud, Canada News, October 26, 2012.

3 3.2.2 The new regulations apply to spouses or partners in a relationship of two years or less who have no children in common with their sponsor at the time they submit their sponsorship application. II. Comprehensive Strategy to Combat Relationship Fraud These changes are part of a comprehensive strategy by the Government of Canada to address relationship fraud. The strategy begins with the assessment of the genuineness of the relationship between the sponsor and the foreign national or whether the relationship was entered into by the foreign national primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the IRPA ). A. Amendment to the bona fides Provision under the Regulations The first step in the strategy was the change in the definition of a bad faith relationship as set out in s. 4 of the Immigration and Refugee Protection Regulations (the IRPR ). The regulatory provision was amended on September 30, Under the former provision there were two elements. First, the relationship in question not be genuine; and second, that the relationship was entered into primarily for the purpose of acquiring any status or privilege under the IRPA. The Visa officer had to be satisfied that both elements existed in order to refuse the sponsored application for permanent residence of a spouse, common-law partner, conjugal partner or adopted child. 2 Under the amended s. 4 of the IRPR each of the two bad faith tests stand on their own. It is, therefore, possible for the Visa officer to refuse the sponsored application for permanent residence of a spouse, common-law partner and conjugal partner even where the relationship is established to be genuine. 3 The provision also separates the requirement related to spouses, common-law partners and conjugal partners (s. 4(1)) from that related to adopted children (s. 4(2)). 4 In addition, s. 117(2) of the IRPR was also amended to permit the assessment of the bona fides of an 2 Section 4 of the IRPR prior to the amendment stated: 4. For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act. 3 See Son Huynh v. Canada (Minister of Citizenship and Immigration), 2013 FC 748 and Depinder Kaur Gill v. Canada (Minister of Citizenship and Immigration), 2012 FC Section 4 of the IRPR states: (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. (2) A foreign national shall not be considered an adopted child of a person if the adoption (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or (b) did not create a genuine parent-child relationship.

4 3.2.3 adoption. 5 The net result of the amendments to s. 4 and s. 117(2) of the IRPR make it easier for the Visa officer to refuse a sponsored application for permanent residence of a spouse, common-law partner, conjugal partner or adopted child because of a lack of bona fides. 6 B. Five Year Sponsorship Bar Given the Government of Canada s concern that relationship sponsorship is open to abuse when individuals enter into non-bona fide marriage, common-law partnership or conjugal partnership in order to obtain status in Canada, the second prong of the strategy to combat the alleged abuse was implemented on March 2, 2012 in the form of an amendment to s. 130 of the IRPR to provide for a five year waiting period before a sponsored spouse or partner could sponsor a spouse or partner after the breakdown of the relationship with their original sponsor. 7 The Government of Canada is well aware that the sponsor who sponsors their spouse or partner as a Canadian permanent resident is required to provide an undertaking of financial responsibility for a spouse or partner for three years. If the relationship breaks down, the sponsor remains financially responsible until the end of the three-year undertaking period, irrespective of the causes of the breakdown. As well, a sponsor may not sponsor a subsequent spouse or partner for the duration of the undertaking. To create a disincentive for a sponsored spouse or partner to use a relationship of convenience as a means of circumventing Canada s immigration laws, abandoning their sponsor soon after becoming a permanent resident and then seeking to sponsor a spouse or partner while leaving the original sponsor with the responsibility to fulfil their three year undertaking, the duration of the sponsorship bar has been set at five years. 8 5 Section 117(2) of the IRPR states: (2) A foreign national who is the adopted child of a sponsor and whose adoption took place when the child was under the age of 18 shall not be considered a member of the family class by virtue of the adoption unless (a) The adoption was in the best interests of the child within the meaning of the Hague Convention on Adoption; and (b) The adoption was not entered into primarily for the purpose of acquiring any status or privilege under the Act. 6 For a detailed discussion regarding the purpose of the amendments to s. 4 and 117(2) of the IRPR see Operational Bulletin Section 130(3) of the IRPR states: (3) A sponsor who became a permanent resident after being sponsored as a spouse, common-law partner or conjugal partner under subsection 13(1) of the Act may not sponsor a foreign national referred to in subsection (1) as a spouse, common-law partner or conjugal partner, unless the sponsor (a) (b) has been a permanent resident for a period of at least five years immediately preceding the day on which a sponsorship application referred to in paragraph 130(1)(c) is filed by the sponsor in respect of the foreign national; or has become a Canadian citizen during the period of five years immediately preceding the day referred to in paragraph (a) and has been a permanent resident from at least the beginning of that period until the day on which the sponsor became a Canadian citizen. 8 For further discussion regarding the amendment to s. 130 of the IRPR, please see Operational Bulletin 386.

5 3.2.4 C. Assessment of Whether an Applicant is a Member of the Family Class A third element that must be assessed in the overall strategy to address the question of fraudulent relationships came about as a result of a decision of the Federal Court of Canada in Hagos. 9 In that decision, the Immigration Appeal Division ( IAD ) had decided to allow an appeal on humanitarian and compassionate grounds under s. 67(1)(c) of the IRPA without deciding first whether the sponsor s spouse is a member of the family class. In order for the IAD to assume jurisdiction it is required to be satisfied that two requirements under s. 65 of the IRPA have been met, namely that the sponsor satisfied the definition of a sponsor under the IRPR and also that the foreign national that was being sponsored is a member of the family class. The IAD had determined that the sponsor was a sponsor as defined in the IRPR but had not made any express finding on whether the foreign national is a member of the family class before allowing the sponsor s appeal on humanitarian and compassionate grounds. The court held that by failing to make such a determination the IAD had erred in law. It was necessary for the IAD to specifically address whether the relationship between the respondent and his spouse was genuine. As a result of this decision, the Minister of Citizenship and Immigration issued Operational Bulletin 396 that instructed Visa officers that in all family class sponsorship cases, the Visa officer was required to assess whether the foreign national is a member of the family class. The effect of the instruction is that the IAD is precluded from the exercise of special relief on humanitarian and compassionate grounds in any appeal to the IAD if there was a determination by the Visa officer that the foreign national is not a member of the family class under s. 117 of the IRPR. D. Conditions Imposed on Landing The final step taken by the Government of Canada to address fraudulent relationships is the introduction of s of the IRPR. The effect of s. 72.1(1) of the IRPR is that the spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. 10 The permanent resident who is subject to the above provision is defined in s. 72.1(2). 11 The permanent resident is a foreign national who became a permanent resident after making a sponsored application for permanent residence as 9 The Minister of Public Safety and Emergency Preparedness v. Gebrezgabher Hagos (FC Imm ), Heneghan, April 20, Section 72.1(1) of the IRPR states: (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. 11 Section 72.1(2) of the IRPR states: (2) For the purpose of subsection (1) and subject to (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, commonlaw 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 of the person under paragraph 130(1)(c).

6 3.2.5 a member of the family, 12 or an application as a member of the spouse or common-law partner in Canada Class to remain in Canada as a permanent resident. 13 If the spouse or partner of a sponsor leaves the relationship, their permanent residence status in Canada may be revoked. In every other respect conditional permanent residence does not differ from ordinary permanent residence. If the permanent resident remains in the relationship with the sponsor for two years, 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. 14 Abuse and neglect is defined in s. 72.1(7) as follows: 12 Section 117(1)(a) of the IRPA states: (1) A foreign national is a member of the family class if, with respect to the sponsor, the foreign national is (a) the sponsor s spouse, common-law partner or conjugal partner; 13 Section 124 of the IRPR states: A foreign is a member of the spouse or common-law partner in Canada class if they (a) are the spouse or common-law partner of a spouse or and cohabit with the sponsor in Canada; (b) have temporary resident status in Canada; and (c) is the subject of a sponsorship application. 14 Sections 72.1(5) and (6) of the IRPR state: (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 section 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. (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 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 the 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.

7 3.2.6 (7) For the purpose of section (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 result in a risk of serious harm. E. Operational Instructions The Modified Operational Bulletin 480 was published in June 2014 and provides a detailed synopsis of the different roles within Citizenship and Immigration Canada and the Canada Border Services Agency in implementing the changes brought on by the new regulatory regime to address relationship fraud. The specific roles of the Call Centre Agents, the CBSA Border Line Watch Officer, the CIC officer, the Citizenship Officer and the CBSA Border Services Agency are set out in the Operational Bulletin 480. The Call Centre Agent s main role is to provide information to those using the service to explain the conditions attached to the landing of the person concerned, how to request an exception to the condition of landing, what information is required and whom to contact. Where the sponsored person raises an allegation of abuse by the sponsor or persons connected to the sponsor, then the information is provided to the local CIC office to permit contact with the person concerned in a safe and confidential manner. 15 The key role for the CBSA Border Watch line Officer is to receive and analyze any tips received and direct it for further investigation as appropriate. 16 The CIC Officer has the key investigative role in making a determination whether a person concerned is in breach of the condition of landing or whether an exception should be granted from the need to comply with the condition of landing that the person concerned live in a conjugal relationship with his or her spouse or partner in Canada for two years. 17 The CBSA Border Watch line number is The Citizenship officer is required to check with the local CIC/CBSA office when he or she becomes aware that an applicant for citizenship had a condition imposed on landing under s of the IRPR to see whether there has been enforcement action taken because of a breach of the condition of landing. If the CIC/CBSA office indicates that no enforcement action has been taken then processing of the application for citizenship can continue. 18 It is the CBSA officer that is responsible for taking enforcement action in the case of noncompliance. When the sponsored spouse or partner seeks to enter Canada and a condition is imposed on his permanent residence under s of the IRPR, it is the role of the CBSA port of entry officer to make sure that the sponsored person and accompanying family members are aware that they are subject to the condition upon being allowed entry to Canada as permanent residents. 15 Operational Bulletin 480 as Modified at section Operational Bulletin 480 at section Operational Bulletin 480 at section Operational Bulletin 480 at section 1.4.

8 3.2.7 Inland enforcement CBSA officers are required to investigate potential breaches of the condition where cases are referred to them by CIC officers or whether they become aware of such cases through tips. They are required to inform CIC on any decision to either take or not take enforcement action. Inland Enforcement officers may also refer matters for criminal investigation to the Criminal Investigations Division in the case of organized fraud or misrepresentation. 19 It is the responsibility of Hearings officers of the CBSA to bring cases to the Immigration Division where there is an allegation of a breach of the condition of landing and also appear before the Immigration Appeal Division in the case of an appeal by the person concerned or the Minister of Citizenship and Immigration where an Immigration Division Member dismisses an allegation of alleged breach of the condition of landing. 20 III. Implementation As indicated above, the implementation of s of the IRPR is part of the overall strategy by CIC to make sure that the foreign nationals who are sponsored as spouses or partners are not permitted entry into Canada if their relationships are not genuine or entered primarily for the purpose of obtaining status or privilege under the IRPA. Imposition of the condition on the sponsored foreign national that they 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 gives CIC the ability to monitor such relationships. Under s. 72.1(4) of the IRPR, the CIC officer has the authority to request evidence of compliance if he or she has reason to believe that the spouse or partner is not complying or has not complied with the condition. 21 These cases will be investigated as any other possible relationship of convenience. Furthermore, evidence of compliance can be requested as part of a random assessment of the overall level of compliance with the condition by the permanent residents who are or were subject to it. 22 A. Imposition of the Condition If the CIC officer either in Canada or abroad approves the permanent residence application and the person has been the spouse, common-law or conjugal partner of the sponsor for two years or less and they do not have children in common at the time of the sponsorship application, the permanent resident is subject to the condition after the day on which they became a permanent resident. 23 The CIC officer will either: 19 Operational Bulletin 480 at section Operational Bulletin 480 at section (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 request 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. 22 Operational Bulletin 480 at section Operational Bulletin 480 at section 2.3.

9 (a) (b) Issue the Confirmation of Permanent Residence ( COPR ) with a condition. The officer must select Yes on the Conditional field of the principal applicant s eligibility assessment record. Issue a letter to notify applicant of the condition. The Officer must print the letter for each person subject to the condition including dependants. If the sponsor and the spouse or partner have lived in a conjugal relationship for more than two years or have children in common, there is no condition imposed on landing. B. Compliance with the Condition Under s of the IRPR, a permanent resident who is sponsored as a member of the family class or as a member of the spouse or common-law partner in Canada Class, 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. The term continuous is not defined in the IRPR. Existing guidelines do not require strict compliance where temporary or short separations occur. 24 The term conjugal relationship is also not defined in the IRPR. However, CIC has interpreted it 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. 25 Section 72.1(4) of the IRPR provides the authority for the CIC officer to demand proof of compliance from the sponsored spouse or partner where the officer has reason to suspect non- 24 OP 2, s which states: While cohabitation means living together continuously, from time to time, one or the other partner may have left the home for work or business travel, family obligations, and so on. The separation must be temporary and short. 25 See Operational Bulletin 480 Appendix A Definitions and also OP 2, s where the key elements are: (a) Mutual commitment to a shared life to the exclusion of all other conjugal relationships; (b) Interdependent physically, emotionally, financially, socially. See also M. v. H., [1999] 2 S.C.R. 3 where the Supreme Court of Canada adopted the following definition of conjugal relationship as follows: Shared shelter: whether the partners live together in the same home as a couple; Sexual and personal behaviour: whether the partners relationship is exclusive, committed, and evidenced by emotional, intellectual, and physical interaction; Services: whether household and other family-type responsibilities are shared, and whether there is evidence of mutual assistance, especially in time of need; Social activities: whether the partners share time together or participate in leisure activities together, and whether they have relationships or interaction with each other's respective families; Economic support: whether the partners are financially interdependent or dependent, and whether they have, to some extent, joined their financial affairs or arranged them to reflect their ongoing relationship; Children: the partners attitude and conduct towards children; Societal perception of the couple: whether the partners are treated or perceived by the community as a couple;

10 3.2.9 compliance with the condition based on a tip or evidence in the possession of the officer. The demand of evidence of compliance can also be made as a part of a random check initiated by the CIC officer. 26 Where there is no evidence to suggest non-compliance with the condition, it ends two years after the day on which the sponsored person becomes a permanent resident. GCMS will automatically remove the tracking of the condition once the conditional period ends, except for cases under investigation. 27 C. Where There is Evidence of Non-compliance with the Condition If the sponsored spouse or partner does not meet the condition of cohabiting in a conjugal relationship with the sponsor during the two-year conditional period and they are not eligible for an exception to the application of the condition, their permanent resident status could be revoked. An inadmissibility (44) report may be written on the basis of non-compliance with s. 41(a) of the IRPA 28 and as per s. 72.1(1) of the IRPR, as the condition imposed would not have been met. This report could be referred to the Immigration Division (the ID ) of the Immigration and Refugee Board (the IRB ) for a hearing and subsequent issuance of a removal order, if applicable. The particular removal order to be issued by the ID if the allegation of breach of condition is well founded is an exclusion order. 29 Under s. 63(3) of the IRPA, the person concerned has a right of appeal to the Immigration Appeal Division (the IAD ). The IAD can allow the appeal in law or fact or mixed law and fact, because there was a breach of natural justice or on humanitarian and compassionate grounds taking into account the best interest of any child directly affected by the decision. 30 It can also stay the execution of the removal order under s. 68(1) of the IRPA. In an appeal on humanitarian and compassionate grounds, the IAD will consider the appeal based on the Ribic principles. 31 These factors include: the seriousness of the breach of condition leading to the removal order, the length of time spent in Canada and the degree to which the appellant is established here, the family in Canada and the dislocation to the family that removal would cause, the support available to the appellant not only within the family but also within the community and the degree of hardship that would be caused to the appellant by his or her return to their country of nationality. If the appeal fails, the removal order can be enforced and the permanent residence status of the person concerned is revoked. 26 See Operational Bulletin 480 section See Operational Bulletin 480 section Section 41. A person is inadmissible for failing to comply with this Act (a) In the case of a foreign national, through an act or omission which contravenes, directly or indirectly, a provision of this Act: 29 Section 229(1). For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is (n) an exclusion order, if they are inadmissible under paragraph 41(a) of the Act for any other failure to comply with the Act, unless subsection (2) or (3) applies. 30 See s. 67(1) of the IRPA. 31 Ribic v. Canada (Minister of Citizenship and Immigration), [1985] I.A.B.D. No. 4 (QL).

11 D. Requests for Exception under Section 72.1(5) or (6) of the IRPR In order to take advantage of the exception set out s. 72.1(5) and (6) of the IRPA, the sponsored spouse or partner may contact the CIC Call Centre or the local CIC office where a request has been made for evidence of compliance with the condition under s. 72.1(1) of the IRPR. In the case of death of the sponsor, the CIC Call Centre will normally advise the sponsored spouse or partner to submit proof of the death of the sponsor such as the death certificate or affirmation or confirmation from the funeral home to the responsible local CIC office. Upon receipt of proof of death of the sponsor the condition ceases to apply to the sponsored spouse or partner. In the case of abuse or neglect as defined in s. 72.1(7) of the IRPR, the CIC officer is required to make a determination that the sponsored spouse or partner is or was unable to meet the condition because: (a) The sponsored person, a child of the sponsored person and/or of the sponsor, or a person who is related to the sponsored person or the sponsor and who is habitually residing in their household, were subjected by the sponsor to any abuse or neglect referred to in s. 72.1(7) of the IRPR; or (b) The sponsor has failed to provide protection from abuse or neglect by another person who is related to the sponsor, whether that person is residing in the household or not; and (c) The sponsored spouse or partner has cohabited in a conjugal relationship with the sponsor until the cohabitation ceased as a result of the abuse or neglect. 32 The abuse or neglect can take many forms. It may include physical abuse, including assault and forcible confinement; sexual abuse, including sexual contact without consent; psychological abuse, including threats and intimidation; or financial abuse, including fraud and extortion; and neglect consisting of the failure to provide the necessaries of life, such as food, clothing, medical care, shelter, and any other omission that results in a risk of serious harm. Coercion into forced marriage when one or both people do not consent to the marriage could be used as an indicia that abuse may be present but the presence of abuse during the two year period would need to be shown in any given case according to the definition of s. 72.1(7) of the IRPR for the exception to apply. 33 In order for an exception to apply, the sponsored spouse or partner must request an exception after they ceased to cohabit with their sponsor. 34 The sponsored spouse or partner cannot request an exception while still residing with the sponsor. The list of potential victims of abuse or neglect is quite long and may include persons other than the sponsored spouse or partner. 35 The critical aspect of obtaining an exception is the necessity of producing cogent and credible evidence to establish that the abuse or neglect was the cause of the breakdown of the relationship. Clearly medical evidence of physical evidence of abuse or neglect is relevant. Similarly, statements from friends, relatives and other witnesses who have seen the abuse or the effects of the abuse should be obtained. Proof that police have been called to the residence of the sponsored person would also be helpful. The abusers could be others than the sponsor. They could include other 32 See Operation Bulletin 480 at section See Operational Bulletin 480 at section and Appendix C for examples of abuse and Appendix D for examples of Neglect Considerations. 34 See Operational Bulletin 480 at section See Operational Bulletin 480 at section

12 family members in the extended family of the sponsor. 36 The evidence must be sufficient to convince the CIC officer responsible for the file that the sponsored spouse or partner continued to cohabit in a conjugal relationship with the sponsor until the cohabitation ceased as a result of abuse or neglect. 37 During the course of any investigation regarding the merits of the claim of abuse or neglect by the sponsored spouse or partner, the CIC officer is required to ensure the safety of the sponsored spouse or partner and any other victim that direct them to the responsible victim service agencies. 38 Evidence may be obtained in written form but if unsatisfactory, the CIC officer may request an interview with the sponsored spouse or partner. If the victim of abuse or neglect is a child, there is an obligation for CIC to report the abuse or neglect to the Child Welfare authorities but only where there is a clear and imminent danger to the child or children. 39 Such a risk outweighs any privacy concerns. 40 If the basis for the exception is established, it also applies to any dependent children of the sponsored spouse, partner or sponsor; and the dependent children of those dependent children. 41 IV. Enforcement If the sponsored spouse or partner does not meet the condition of cohabiting in a conjugal relationship with the sponsor during the two-year period, removal action may be initiated. If removal action is taken against a sponsored spouse or partner on the basis of non-compliance with the condition, the accompanying family members could also become subject to removal action (non-compliance of the condition under s. 41 of IRPA, as per s (1) of the IRPR). 42 It is also noteworthy that if removal action is taken against a sponsored spouse or partner on the basis of non-compliance with the condition, members of the family class sponsored during or after the conditional period and their accompanying family members could also become subject to a removal order (non-compliance of the condition under s. 41 of IRPA, as per s (1) of the IRPR). The members of the family class could also benefit from the exception if the sponsored spouse or partner who sponsored the family class member was unable to meet the condition as a result of the death of the sponsor, or as a result of abuse or neglect. 43 If the matter proceeds to a hearing before the ID on the basis of an allegation founded upon s. 41(a) of the IRPA per s. 72.1(1) of the IRPR, an important issue that will need to be resolved is the ID has jurisdiction to apply ss. 72.1(5) or (6) of the IRPR and to determine whether there is sufficient evidence before it to justify application of the exception to the case and thus support a finding that the exception applies and the allegation of breach of condition is not made out. Thus far there have been no rulings by the ID on this issue. 36 See Operational Bulletin 480 at section See Operational Bulletin 480 at section See Operational Bulletin 480, Appendix E for Safety Precautions and Appendix G- Victim Services agencies. 39 See Operational Bulletin 480 at section Section 8(2)(m)(i) of the Privacy Act. 41 See Operational Bulletin 480 at section See Operational Bulletin 480 at section See Operational Bulletin 480 at section

13 Similarly, if the matter proceeds to an appeal, can the IAD also make a determination as a matter of law, fact or mixed law and fact that the decision of the ID on the application or non-application of ss. 72.1(5) or (6) of the IRPR or will it only be able to provide relief under its humanitarian and compassionate jurisdiction. 44 A useful guide for the conduct of proceedings before the ID and IAD may come from old IAB cases that dealt with finance cases where there was non-compliance with the condition to marry within 90 days. 45 The sponsored fiancé s failure to marry would lead to enforcement action that led to hearings before the ID and the IAB under the previous s. 27(1)(b) of the Immigration Act, A. Sponsorship Undertakings It is important to note that CIC s position is that even though an exception may be applied at the request of the sponsored spouse or partner because of abuse or neglect, this does not absolve the sponsor from his or her obligation to live up to his or her sponsorship undertaking for the full three year period after the landing of the sponsored spouse or partner and any accompanying dependants. 47 B. Citizenship Applications If there is no adverse information in GCMS or in FOSS, processing of the citizenship application by the sponsored spouse or partner and any accompanying children subject to the condition imposed on landing will continue. However, if there is any information indicating that the permanent resident status is in doubt because of possible non-compliance with the condition, or an ongoing investigation has started, the citizenship application will be put on hold until confirmation is received from the local CIC (immigration section)/cbsa office that there will be no enforcement action against the applicant. 48 V. Final Comments Dealing with fraudulent relationships has been a high priority for the Government of Canada. Clearly government officials believe such relationships are a serious problem. Most of the caseload of the Immigration Appeal Division does concern fraudulent relationships of one kind or another. The problem has been approached from several different directions. One is to make it easier to refuse sponsored applications for permanent residence where there is a question about the genuineness of the relationship by amending s. 4 of the IRPR. Second, the five year bar to sponsorship of a spouse or partner where the sponsor has also been sponsored as a spouse or partner is meant to discourage persons from entering into fraudulent relationships because of the 44 See s. 67(1)(c) of the IRPA. 45 See Ilankayar v. Canada (Minister of Citizenship and Immigration), [2004] I.A.D.D. No. 575, Stein, September 28, 2004 and Vallecer v. Canada (Minister of Employment and Immigration), [1994] I.A.D.D. No. 25, Wlodyka, January 27, Section 27(1)(b). You are a permanent resident who was granted landing subject to the condition that your marriage to your fiancé takes place within 90 days after you were granted landing and you knowingly contravened such condition in that you failed to marry within the prescribed ninety day period. 47 See Operational Bulletin 480 at section See Operational Bulletin 480 at section 7.

14 delay in reuniting with their supposed real spouse or partner. A system has been put in place to allow for the monitoring the sponsored spouse or partner after their arrival in Canada and taking enforcement action where there has been a breach of the condition of landing that the sponsor and his or her spouse or partner reside together in a conjugal relationship for two years after landing. An exception has been added to deal with abuse or neglect. The latest example of the continued strategy to deal with fraudulent relationships is the Government of Canada s proposed legislation in the form of the Zero Tolerance for Barbaric Cultural Practices Act that will amend the IRPA, the Civil Marriage Act and the Criminal Code. The legislation proposes to attack polygamous relationships in Canada by rendering permanent residents and temporary residents inadmissible to Canada for such practices. The minimum age for marriage will be raised to 16 and there will be provisions to ensure free and enlightened consent to marriage as a means to protect women from forced marriages. The proposed amendments would allow for the imposition of peace bonds to prevent persons from committing a forced or early marriage offence and mandatory surrender of passports to prevent a child from being removed from Canada to facilitate a forced marriage. Persons who seek to remove children from Canada for the purpose of a forced marriage would face criminal sanctions for doing so. The writer submits that the proposed new legislation is the latest in a long list of steps taken to deal with fraudulent or forced relationships that have been part of the landscape of our Society for many years.

15 VI. Appendix Government of Canada: Selected News Releases

16 3.2.15

17 3.2.16

18 3.2.17

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21 3.2.20

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23 3.2.22

24 3.2.23

25 3.2.24