During the past few months, the Canadian government has openly vowed to actively deal with marriage fraud. Immigration Minister, Jason Kenney, has been conducting cross-country town hall meetings in an effort to exchange ideas with Canadians on how to best combat the persistent problem of marriage fraud.
Marriage fraud, for Canadian immigration purposes, occurs when a person marries a Canadian permanent resident or citizen for the sole purpose of gaining entry into Canada. The spouse in Canada is unaware of the foreign national’s true intentions and is swept away by the emotions of what he or she perceives to be true love and sincere affection. The foreign national’s true intentions are often revealed only after the foreign spouse has landed in Canada as a permanent resident of this country. It is not uncommon to hear stories of spouses in Canada eagerly awaiting the arrival of their loved one, only to discover that their loved one is already in Canada and has no intention of living with them.
To add insult to injury, the spouse in Canada is required to provide financial support to the foreign national for 3 years from the date of that person’s landing in Canada. As part of their application to sponsor their foreign spouse, the Canadian citizen or permanent resident is required to sign an undertaking “to provide food, clothing, shelter, fuel, utilities, household supplies, personal requirements, and other goods and services, including dental care, eye care, and other health needs not provided by public health care.” The undertaking also states that the foreign spouse will not need to apply for social assistance. The undertaking is a contract between the Canadian citizen or permanent resident and the Canadian government; therefore, it supersedes any separation agreement between the spouses or any court order relating to spousal support. Furthermore, if the foreign national applies for and receives social assistance within the three-year period, the Canadian citizen or permanent resident spouse must repay the government all monies provided to their spouse.
The Immigration and Refugee Protection Regulations prohibit marriage fraud under section 4(1), which states that “[f]or 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 [Immigration and Refugee Protection Act (“the Act”)]; or
(b) is not genuine.
Furthermore, under section 40(a) of the Act, “[a] permanent resident or a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act” and, under section 41(a) of the Act, a foreign national is “inadmissible for failing to comply with this Act through an act or omission which contravenes, directly or indirectly, a provision of this Act.”
Foreign nationals who contravene those provisions of the Act through misrepresentation or non-compliance are subject to enforcement action including an order removing them from Canada and an exclusion order, preventing them from returning to Canada without written authorization during the one-year period after the exclusion order was enforced.
More importantly, marriage fraudsters should be stripped of their status as permanent residents of Canada by virtue of section 4(1), which clearly states that they are not considered a spouse under the immigration laws of Canada. Since they are not a “spouse” under the Act, they should not be allowed to remain in Canada on a basis of a spousal sponsorship application. The practical effects of section 4(1) should be similar to the practical effects of section 117(9)(d) of the Regulations, which encompasses cases where a person fails to truthfully declare that he or she has a spouse or dependent children when he or she applied for and became a permanent resident. In the latter case, the spouse or dependent child are not considered family members of the permanent resident and, therefore, cannot be sponsored as members of the family class. Similarly, by virtue of section 4(1) of the Act, foreign nationals who become permanent residents of Canada through a bad faith marriage, should not be considered spouses of the Canadian citizen or permanent resident who sponsored them and, accordingly, they should lose the permanent resident status which is based on the bad faith marriage.
Sadly, most victims of marriage fraud have little recourse but to report their spouses to Citizenship and Immigration Canada (“CIC”)and Canada Border Services Agency (“CBSA”). Although immigration law provides them with the authority to punish marriage fraudsters, neither the CIC nor the CBSA have enforcement or man power to investigate, pursue and remove these immigration law violators from Canada. Oftentimes, victims of marriage fraud find themselves re-victimized by immigration officials who, subconsciously or otherwise, view them as the authors of their own predicament.
Current immigration law and procedure have established specific steps and requirements specifically to ensure that bad faith marriages are caught before permanent resident visas are granted or issued. Some immigration officials are of the view that their work is done once the spousal sponsorship and permanent resident application has been scrutinized and approved. The Canadian citizen or permanent resident, having successfully convinced immigration officials of the genuineness of their marriage, may find little sympathy from those officials when seeking help to remove a spouse due to a claim of a bad faith marriage.
Some victims of marriage fraud are calling for an American-style conditional permanent resident status to be granted to spouses. The conditions of permanent residence would be removed upon the spouses remaining married in Canada for a certain number of years, after which the foreign spouse would be granted unconditional permanent residence. Advocates of this approach argue that a person in a bad faith marriage would have a difficult time maintaining the facade for an extended period of time. However, this approach might lead to situations where a foreign spouse is abused and feels compelled to remain in an abusive relationship for fear of losing their status in Canada.
The Canadian government is looking at various ways to combat marriage fraud. They hope to have a workable solution within the coming year and pass new laws that will make it tougher for those who wish to gain entry into Canada through bad faith marriages with Canadian citizens or permanent residents. They are aiming for a solution that strikes a delicate balance discouraging bad faith marriages while keeping the doors of Canada open for those who have genuine marriages. In the meantime, entry into Canada remains one romance away for people who, without regard for the emotional and financial cost to their unsuspecting victim, are intent on gaining status in this country.
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