Floated policy highlights spousal sponsorship challenges

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 (Regulation 117(9)(b)) 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 (Regulation 130(3)) 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.

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.

Visiting Canada – dealing with the challenges in coming

In recent years millions of persons come to visit Canada. According to estimates of the Canadian Tourism Commission, in 2012 there were over 16 million overnight arrivals to Canada, of which nearly 12 million were from the United States. The second largest source of overnight arrivals was the United Kingdom, with 600,000 arrivals. Next was France with about 421,000. India was listed seventh, with 171,000 overnight arrivals. Included in the mixture are temporary residents who stay to work or attend school. While many are allowed into Canada, some are refused entry when they arrive, while many others are refused temporary resident visas they are required to have before they arrive here.

The immigration regulations set out rules on how people may apply to come to Canada, depending on what their intention is. The first distinction is a list of visa-exempt countries, whose citizens do not have to apply for a temporary resident visa before coming to Canada. The list of visa-exempt countries changes from time to time, depending upon a variety of factors, including whether or not certain foreign nationals are abusing the privilege of entering Canada by overstaying their visits. At present the visa-exempt list includes about 45 countries, primarily in Europe and including the United States, Australia and New Zealand. India was on the list until it was dropped in October, 1981, where it has remained ever since.

The temporary resident visa requirement creates an additional burden for potential visitors. Time and money has to be spent to complete application forms, gather supporting documents and to file the application. Depending on where the person applies, the process can be done within a week or can take several weeks.

Once an applicant has gathered information, completed the necessary forms and submitted them with the required processing fee, the application is reviewed by an officer who decides the application. Depending where a person applies, the process may require a personal interview. In the past decade, as government has worked to reduce its costs, more applications are decided without an interview. That means an applicant has to present all the best possible evidence to support their application in writing.

When deciding an application, a visa officer considers whether or not the applicant meets the requirements to apply and is not inadmissible. Persons may be inadmissible for a variety of reasons, including having a criminal record or serious health issues. The principle test applied to all applicants for a temporary visa is whether or not the applicant intends to remain in Canada temporarily (Immigration and Refugee Protection Act, para.20(1)(b)). If an officer believes a person may want to remain in Canada indefinitely, the application will be refused.

There are a variety of factors an officer may look at. None of the factors are set out in the rules, nor will you find them in any instruction manual for officers or in the guidebooks the provided on the immigration website. Typically, an officer is concerned with any evidence that would show the applicant will return to their home country, rather than stay in Canada. Does the person have a job? What assets, including real property do they have in the home country? Do they have immediately family members in the home country? What family members do they have in Canada? What is the reason for their visit? Do they have the means to support themselves for their expected stay?

If refused, it is usually done with a short cursory letter, with little explanation on it. Many failed applicants complain about not knowing why they were refused. The only way to get a detailed response is to apply to obtain a copy of the visa officer’s file.

Remedies against refused applications are limited. There is no formal right to have the decision reconsidered, though that may occur. The only legal remedy is to apply for judicial review in Federal Court in Canada. That means hiring a lawyer in Canada, a costly or impractical matter for most applicants. The Federal Court’s powers of review are limited, as a judge looking at the case decides only if the decision was unreasonable based on the information provided by the applicant. If the applicant failed to provide sufficient information, an officer may not be faulted on their conclusion.

An applicant can always reapply, with more information to address the issues that concerned the visa officer. The best remedy to be prepared to deal with the matter at the start by becoming informed about what is needed. That may involve seeking professional help with counsel experienced in these issues.

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.