Minister confirms parental sponsorship restrictions; no change yet to dependent children

Immigration Minister Chris Alexander appeared in Brampton, Ontario, Wednesday to announce the government’s changes to sponsorship rules and policy for parents and grandparents. Despite his efforts to sugarcoat the announcement, he couldn’t disguise the fact that the changes will severely limit future reunification of parents and grandparents for many families in Canada.

Minister Alexander’s predecessor, Jason Kenney, announced the new policy originally on May 10. Proposed rule changes were published a week later. The final version of the changes made by cabinet order on Dec. 12 will not be formally published until Jan. 1, 2014, the day they come into effect.

The new rules and policy make four significant changes to sponsorship of parents and grandparents. First, sponsors previously signed an undertaking to be responsible for the parents and grandparents for 10 years after they are granted permanent residence. New undertakings will last 20 years. If the parents or grandparents receive any social assistance within those 20 years, the sponsor may be compelled to pay back the social assistance payments.

Secondly, sponsors are required to meet certain income requirements to be eligible to sponsor parents and grandparents. The minimum necessary income for sponsoring parents and grandparents is increasing by 30 percent. For example, at present a sponsor with a spouse and two children intending to sponsor two parents has to show an annual income of $55,378. Starting in 2014, the same sponsor will have to show an annual income of $71,991.

Thirdly, sponsors will be required to provide proof of income from the Canada Revenue Agency (CRA) for three years, instead of one year. A sponsor noted above wanting to file an application in January, 2014, will have to show proof of the greater income for the taxation years from 2011 to 2013. The sponsor may not get satisfactory proof from the CRA for 2013 income for several months, so the sponsor may have to show proof of the higher income for 2010 as well if they file an application on Jan. 2.

That’s important if the sponsor’s application is to be approved, because of the fourth change. The Minister confirmed that under his power to issue instructions the number of sponsorship applications for parents and grandparents accepted for processing in 2014 will be limited to 5,000 (covering 9,000 applicants); effectively on a first-come, first-served basis.

Like the historic Oklahoma Land Rush, there will be a mad scramble to file applications in early January as sponsors stake their claim to the limited number of sponsorships. The government isn’t helping the situation. The Minister advised that new application forms and guides will not be posted on the Citizenship and Immigration website until Dec. 31.

When asked about that, the Minister said there wouldn’t be any surprises with the new forms. He urged those intending to apply to get ready and gather the necessary information. He said it doesn’t take a lot of time to get it together, noting he had sponsored a spouse himself. One of the CRA forms usually requested is an Option C printout of a notice of assessment. While you can call the CRA to request the form, it may take a week or two to receive it.

The Minister’s announcement amounted to a shell game. On the one hand the Minister notes the changes will reduce the backlog and waiting time for outstanding applicants.  On the other hand, he hides the fact that fewer potential sponsors will be eligible. In prior statements the government made it clear it wants to reduce parental sponsorship as parents and grandparents are considered to be an economic burden, as they make demands on social and health services that outweigh any benefit their presence may contribute to the economy. That may be a legitimate political policy decision. Unfortunately current politics dictate that political leaders obfuscate policy decisions to offend the fewest number of voters.

There was good news for some from the Minister. A further change proposed in May would restrict eligible children who can be included in any application, either through family sponsorship or economic class applications, to children under age 19 (it would still include children over 18 who are dependent due to mental or physical conditions). The Minster advised that a final decision on that change, which was to start Jan. 1, has been put off until early next year. Public input on that proposal may be making the government think twice about it.

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 e-mail at macintoshlaw@gmail.com.

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Immigration barriers contribute to visa fraud

The Asian Journal recently reported Richard Kurland’s disclosure of government investigations into immigration fraud in India; an ongoing concern of the Harper government.  As I noted on Nov. 6, the Harper government has increased immigration enforcement spending from $91-million in 2010-11, to $150-million in 2012-13. At the same time, the government has created more selective rules for immigration. The correlation is no coincidence.

Increased enforcement spending coincides with former Immigration Minister, Jason Kenney, touting the government’s initiatives in fighting immigration and citizenship fraud. In July, 2011, he announced measures by the government to combat citizenship fraud In 2012 he announced measures to address marriage fraud, and to increase cooperation with the United Kingdom, Australia and India to combat fraud in visitor and immigration applications.

More details of the immigration department’s efforts to combat fraud in India were recently disclosed by Carol McKinney, the Immigration Program Manager at the visa office in Chandigarh, when she testified before the House of Commons Standing Committee on Citizenship and Immigration on Nov. 26. The Chandigarh office processes temporary resident applications from northern Indian states, primarily from Punjab and Haryana.

Appearing by videoconference from India, Ms. McKinney told the assembled MPs on the committee, that in 2012 the visa office refused 329 applications for misrepresentation discovered through verifications. She added that an estimated 15 to 20 per cent of all refused applications contain misrepresentation of some kind. She noted a lengthy list of fraudulent documents used by various applicants. Prospective students included documents such as fraudulent letters of acceptance, language test certificates, academic records, reference letters and identify documents.

Fraudulent temporary workers often provide phony ESDC labour market opinions and letters for their employment. Visitor visa applicants regularly submit falsified Indian bank statements or falsified documentation from Canada, such as invitations from non-existent Canadians or fraudulent funeral home letters for funerals that are not taking place.

In the past eight years the Chandigarh office has tripled the number of temporary visas issued, to about 18,000 in 2012, with an acceptance rate of 53 per cent, up from 38 per cent in 2004. It handles the workload with six Canadian officers, supported by 19 locally hired staff.

The Chandigarh office added an anti-fraud officer in September, 2012, allowing it to increase its ability to verify information from employers and schools in person. This allows the anti-fraud officer in New Delhi to increase investigations in other parts of India. Ms. McKinney also noted that Chandigarh's new anti-fraud officer has assisted local law enforcement officials, who, particularly in Punjab, have targeting unregistered and unlicensed consultants.

Partnering with other countries, such as Australia, New Zealand, the U.K., and the United States, information provided to the Punjab Police led to a raid in May, 2013, on six Jalandhar-based consultants, resulting in the arrest of their owners and seizure of money, passports, visa applications and suspected false documents.

When asked why the acceptance rate was lower than the 80-per-cent worldwide approval rate, Ms. McKinney said the reason was due to more fraudulent applications and the belief that many applicants will not depart Canada following an authorized stay. She also noted that the acceptance rate has increased through the use of visa application centres (VAC). These privately run outsource centres help with the administration of temporary visa applications by ensuring applications are complete. There are nine VACs in India, with two in Punjab.

Other witnesses before the committee noted the increased demand for visitors from emerging economic markets such as India, China and Brazil. This has put added pressure on government resources to deal with those areas. Funding has increased in the past year for visa offices in those countries. In spite of economic growth in India, Ms. McKinney stated that there is a strong incentive for residents of the Punjab to seek better economic opportunities abroad, particularly among the young unemployed or underemployed. Since many of them do not meet Canada's visa requirements, officials from Canada and from key partner countries are very concerned about the growing evidence of fraud and misrepresentation.

The Times of India on July 28 pointed out that new data based on consumption expenditure surveys shows that income disparity in India is growing and at a rapid clip, despite the changes to India’s economy in the past two decades. People will continue to migrate whenever there is lack of opportunity. At the same time Canada’s immigration policy has become more focused on economic considerations, making more people unqualified to immigrate. Immigration fraud will continue to be a problem, not just from India, so long as economic disparity continues and the barriers to entry get harder.

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 e-mail at macintoshlaw@gmail.com.

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Perils involved in citizenship adoption applications

When then-immigration minister Diane Finley announced in 2007 the start of changes to the Citizenship Act allowing children adopted abroad by Canadian citizens to obtain citizenship, the new law reduced the differences in treatment between children adopted abroad and children born abroad to a Canadian parent.
Applicants would have to prove the adoptions were legal and genuine, and were not entered into mainly for acquiring status in Canada - a challenge Kulwinder Kaur faced when she applied for citizenship as an adoptee several years ago.

Ms. Kaur’s maternal aunt (massi) and her husband purportedly adopted her in 2002 in Punjab when she was 13 years old. Her aunt in Canada had two sons. She and her husband wanted a daughter. They discussed their desire with her sister and brother-in-law, who agreed to give Kulwinder Kaur up for adoption.
Indian adoption law sets rules as to who may be adopted and who may adopt. Unlike Canada, where all provinces require court approval for adoption, the law in India allows people to carry out their own adoption. The main formality is a giving and taking ceremony, when the child is physically handed over to the adopting parents by the natural parents.

The aunt and uncle thought they had gone through all the formalities necessary to adopt Kulwinder Kaur. A giving and taking ceremony was performed. Notice of the adoption was published in a newspaper. To provide written proof of their action, the aunt and uncle, together with the natural parents, registered a deed of adoption with a court in India.

Unfortunately for Kulwinder Kaur, her new parents took no action to bring her to Canada until 2010. She remained in India, though the new parents appointed a guardian to be responsible for her, while they provided support from Canada.

When Kulwinder was 21 years old, she applied for Canadian citizenship based on the new rules that came into effect in 2007. In 2012 a citizenship officer at the Canadian High Commission in New Delhi interviewed her, along with the guardian and her natural parents. She failed to prove to the officer that a giving and taking ceremony was performed, and that her adoption was genuine. Her only remedy was to apply for judicial review of the decision. That review was held before the Federal Court in Vancouver last month. Justice Michael Phelan, who heard the review, rendered his decision within a week, upholding the officer’s refusal.

A judicial review is a limited form of appeal. Justice Phelan could only consider the evidence that was considered by the citizenship officer. He could only overturn the decision if he found the officer’s conclusions were unreasonable. Based on the evidence before the officer, Justice Phelan decided the decision was reasonable.

When interviewed by the officer in New Delhi, neither Kulwinder Kaur nor the others gave clear evidence that a ceremony took place. The officer was not satisfied about explanations for the lack of visits by the adopting parents and communication with Kulwinder Kaur, and why it took eight years before taking action to have her come to Canada.

The law holds that an applicant must prove they qualify for citizenship. An officer making a decision is not required to find a way for someone to qualify. An uninformed applicant is at a disadvantage, not knowing what evidence is important to show an officer, especially when it deals with legal issues like a giving and taking ceremony. For example, it is the usual practice in Punjab, when registering a deed of adoption, to have all the parties present, including the child being adopted, who will be physically given and taken before the court registrar.

Had Kulwinder Kaur been aware of the importance of this, she or one of the other persons could have told the officer. What is unfair is that the officer probably did not ask about it, though the officer should have been aware of the practice. The Immigration and Refugee Board upheld the Indian court practice as proof of a giving and taking ceremony over 17 years ago (see [1996] I.A.D.D. No. 1032 (QL)).

While Kulwinder Kaur may have proven that she was properly given and taken, the lengthy delay in joining her adoptive parents raised serious questions about the adoption’s genuineness. Getting good advice before starting on such an important matter can help avoid disappointment later on. As shown in this case, an inadequately prepared application cannot be cleared up after the decision is made. 

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 macintoshlaw@gmail.com. 

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