Floated policy highlights spousal sponsorship challenges

spousal sponsorship THE current government has implemented changes to immigration rules for several years, in all categories of immigration, to address several of its concerns. The first concerns the ability of immigrants to adapt to the economy and their ability to contribute to society. The second is to crack down on fraud in obtaining permanent immigrant status and ultimately citizenship.

For the most part, the changes related to adaptability have focused on economic immigrants, but has included changes to sponsoring parents and grandparents. However, several weeks ago the Toronto Star reported the immigration department was thinking of requiring sponsored spouses to meet language and other requirements. If carried out, this would be the most dramatic change to spousal sponsorship since the category was formally started in 1962. Earlier rules had expressly exempted spouses from literacy tests.

This alarmed a number of groups and arose after the Immigration Minister, Chris Alexander, reportedly raised the issues at public meetings earlier this year. Critics suggested the idea would prevent many spouses, particularly from non-English and non-French-speaking countries, from qualifying under family sponsorship. They also suggested the government was thinking about requiring sponsors to meet minimum income requirements to sponsor their spouses. The government was quick to respond to the criticism. The minister’s spokesperson, Alexis Pavlich, deflected the issue by saying the issues were raised by stakeholders as meetings and did not mean that it would become government policy.

Since 1962 citizens and permanent residents have had a right to sponsor their spouses to the country. Following a court ruling the rules were amended in early 1984 to prevent “immigration marriages” by excluding spouses who did not intend on living permanently with their sponsor. The current rule requires spouses, common-law partners and conjugal partners to prove their relationship is genuine and was not entered into primarily for the purpose of acquiring any immigration status.

While immigration officers are trained to spot fraudulent marriages, the decision-making process can appear subjective. It is difficult to determine what a person is thinking by objectively viewing their actions and statements. As a further deterrence, when the current Act was started in 2002, a rule was added to prevent a sponsor from sponsoring a new spouse while they still were responsible (currently for three years) for a previous one. Some persons had abused the system by sponsoring a spouse, obtaining a divorce within a few years and remarrying another person to sponsor. A few cases involved serial sponsors, involving more than two immigration marriages in a row.

To deter immigrants who deceive their sponsor and terminate the relationship soon after coming to Canada, the rules were changed in 2012 to bar a recent immigrant from sponsoring a new spouse, common-law partner or conjugal partner for five years after getting their permanent status. The consequences can be harsh for a person whose previous relationship breaks down for legitimate reasons and wants to start a new relationship with another immigrant.

There is nothing guaranteed about sponsoring a spouse or other partners. Red flags are raised when the parties to a relationship appear incompatible due to age, education, race or religion. Arranged marriages are looked at to see if they fit within customary norms. The sponsorship process requires the immigrant applicant to complete a questionnaire about their relationship. If the written application doesn’t address potential concerns the applicant will be called to an interview, where their answers will be compared with the written application.

If refused, the sponsor may appeal the decision to the Immigration and Refugee Board. This does not apply to refusals of applications made within Canada. New evidence can be submitted to the board. Other witnesses to the relationship may testify. The Border Agency may investigate by visiting the sponsor’s home. Credibility is a primary issue. False statements, whether regarding employment, education, family relationships or other matters, may affect a decision. They might also lead to criminal charges for sponsors. The Border Agency is also seeking removal orders against permanent residents under the current law for making misrepresentations in subsequent sponsorships.

De Cervantes, the Spanish author of Don Quixote, is quoted as saying: “Forewarned, forearmed; to be prepared is half the victory.” Anyone contemplating a relationship with a potential immigrant should be aware of the responsibilities and obligations of sponsoring that person. In order to avoid a delayed application or having to appeal a refusal, they should arm themselves with knowledge of how to prove it is a genuine relationship and to deal with any potential matter an immigration officer may be concerned about. Inadequate information can result in an uninformed response. Since the onus is always on the applicant to prove they qualify for immigration, an officer will not be faulted if the information is not provided.

BY WILLIAM MACINTOSH
William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at [email protected]