Academic journal article University of New Brunswick Law Journal

Sponsorship Bars and Conditional Permanent Residency: Coming Soon to the Spousal Sponsorship Program?

Academic journal article University of New Brunswick Law Journal

Sponsorship Bars and Conditional Permanent Residency: Coming Soon to the Spousal Sponsorship Program?

Article excerpt

INTRODUCTION

Recently, a debate has emerged in the Canadian immigration community regarding how to combat marriage fraud. News stories about individuals who have sponsored spouses, only to watch those spouses abandon them shortly after they arrive in Canada, have brought public attention to the issue. In October 2010, Jason Kenney, the Minister of Citizenship and Immigration (the "Minister"), held a series of town hall meetings on the matter across the country. The Minister's statements during the meeting made it clear that change is coming, and that this change will likely involve the imposition of conditional visas and sponsorship bars on individuals who obtain permanent residency through the spousal-sponsorship program. Before embarking on this path, however, it is important to consider how other nations address the issue, as well as whether there are existing tools in Canada's immigration legislation to combat marriage fraud. While a sponsorship bar for principal applicants under the spousal-sponsorship program would be a positive and practical change, conditional permanent residency would not be an appropriate method to combat marriage fraud.

THE CURRENT IMMIGRATION SYSTEM

The Immigration and Refugee Protection Act (the "Act") (1) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations") (2) govern the admittance of permanent residents to Canada. They provide for the creation of different immigration classes. Section 12(1) of the Act creates the family class. Pursuant to this section, a foreign national may immigrate on the basis of his or her relationship as the spouse, common-law partner, child, parent or other prescribed family member of a Canadian citizen or permanent resident. (3)

The Regulations create numerous safeguards that attempt to ensure the spousal sponsorship program is limited to legitimate marriages. The most important of these is s. 4, which states:

   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. (4)

The amount of information required to prove that a marriage is both genuine and not primarily entered into for the purpose of immigration is immense. Applicants are required to fill out detailed questionnaires regarding how they met their sponsors, the nature of the relationship, how a proposal was made, what the wedding was like, and whether their respective families know about the marriage. Applicants frequently provide binders of documents including copies of photos, e-mails and even wedding videos. Even then, the current acceptance rate for applications for a permanent residence visa under the spousal sponsorship program is only 83%. In 2009, 39,077 people were admitted to Canada as spouse, common law partner or conjugal partner of a Canadian under the sponsorship program. This means the applications of around 8,000 principal applicants (the legal term for the applying spouse) were rejected, a majority of which were because of a failure to meet the requirements of s. 4.

Another mechanism to ensure Canadian citizens and permanent residents only sponsor genuine spouses is through the requirement that sponsors sign undertakings. A sponsorship undertaking is an agreement between the government of Canada and a sponsor of a foreign national whereby the sponsor agrees to repay the government for any social assistance that the sponsor's immigrating spouse receives. These undertakings last three years. (5) A major reason for the undertaking in the spousal sponsorship context is to ensure that Canadian spouses think twice before sponsoring a spouse to immigrate, and that they will only sponsor someone if they honestly believe that the person they are sponsoring loves them. …

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