Canada Gazette, Part I, Volume 146, Number 10: Regulations Amending the Immigration and Refugee Protection Regulations

March 10, 2012 Statutory authority Immigration and Refugee Protection Act Sponsoring department Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue

One of the objectives of the Immigration and Refugee Protection Act (the Act) is to facilitate family reunification. The Act enables Canadian citizens or permanent residents to sponsor spouses and partners, children, parents and other prescribed family members. Unlike the economic program, the family reunification program has no labour market-related requirements such as education, work experience or proficiency in one of Canada’s official languages. Sponsorships require an undertaking of financial responsibility. Applications to sponsor a spouse or a partner are not assessed against the minimum income requirements applicable in other family class categories and receive priority processing. While the majority of spouses and partners sponsored for immigration are in legitimate relationships, the spousal sponsorship process is open to abuse when individuals enter into relationships of convenience in order to facilitate entry into Canada. In some cases, both parties may be aware that the relationship is for immigration purposes. In other cases, one party believes the relationship to be legitimate, while the other intends to leave the relationship shortly after receipt of permanent resident status. Where the sponsor is unknowingly a victim of marriage fraud, such a realization can often cause considerable pain and stress. Firm figures on the extent of relationships of convenience are not available. What is known is that about 46 300 immigration applications for spouses and partners were processed in 2010 (39 800 from abroad and 6 500 from within Canada). Of these, about 16% (8% of inland and 17% of overseas applications) were refused. It is estimated that most of these cases were refused on the basis of a fraudulent relationship. Others are refused on the basis of criminality, security, medical issues and sponsor ineligibility. What other countries are doing Other countries, such as Australia, the United States and the United Kingdom, employ a form of conditional status period of about two years as a deterrent to those who would commit marriage fraud. In all three countries, the condition requires that the sponsored spouse or partner remain in a legitimate relationship with their sponsor for the duration of a specified conditional period. In Australia, conditional status is imposed on spouses in relationships of less than three years (or two years for couples with children of their relationship). Conditional status is imposed on spouses in a relationship of less than four years in the United Kingdom, and of less than two years in the United States, irrespective of whether there are children of the relationship. Sponsored spouses in new relationships in Australia and the United Kingdom are granted temporary status; in the United States, they are granted conditional permanent residence, but must apply to have this condition removed and retain their status as permanent residents. Canada currently has no comparable conditional status measure to deter marriage fraud.

Objectives

The primary purpose of the proposed conditional measure is to serve as a deterrent to marriages of convenience, thereby strengthening the overall integrity of Canada’s immigration program, while maintaining the spirit of family reunification by continuing to facilitate the reunification of legitimate spouses and partners. The measure would also bring Canada’s policies more closely in line with those of other countries, such as the United States, the United Kingdom and Australia. By strengthening Canada’s capacity to deter marriages of convenience, it is expected that Canada would no longer be regarded as a “soft target” by those who might consider using a marriage of convenience to circumvent Canadian immigration laws. Finally, the proposed measure would provide another means for enforcement action in instances of marriage fraud, including the issuance of a removal order to the fraudulent spouse or partner on the basis of non-compliance with the condition, which may in turn lead to their removal from Canada.

Description

The proposed amendments to the Regulations would specify that, under the family class or the spouse and common-law partner in Canada class, a spouse, common-law or conjugal partner who is in a relationship of two years or less with their sponsor and has no children in common with their sponsor at the time of sponsorship application would be subject to a two-year period of conditional permanent residence. The condition would require that the sponsored spouse or partner cohabit in a conjugal relationship with their sponsor for a period of two years following receipt of their permanent resident status in Canada. The sponsored spouse or partner may have accompanying family members or may, after their arrival in Canada, sponsor members of the family class (and their accompanying family members). In such instances, the permanent resident status of these accompanying family members and sponsored members of the family class would be contingent upon their sponsor meeting the condition. Beyond the requirement to satisfy this condition, conditional permanent residence would not differ from permanent residence. Permanent residence could be revoked (leading to initiation of removal action) if the condition of cohabiting in a conjugal relationship is not met by the sponsored spouse or partner during the two-year conditional period, whether confirmed during that period or at any later time. As is currently the case, a number of factors would be considered in the assessment of the legitimacy of the “conjugal relationship,” whether the sponsored person has been sponsored as a spouse, common-law partner or conjugal partner of the sponsor. The sponsored spouse or partner would be required to provide evidence of their compliance with the condition if it is requested by an officer because they have reason to believe that the sponsored spouse or partner is not complying or has not complied with the condition or if the officer requests such evidence as part of a random assessment of the overall level of compliance with the condition. Given concerns about the vulnerability of spouses and partners in abusive relationships, the proposed condition would cease to apply in instances where there is evidence of abuse (i.e. physical, sexual, psychological, or financial) or neglect (failure to provide the necessaries of life) by the sponsor, or a failure by the sponsor to protect from abuse or neglect, during the conditional period, by another person related to the sponsor, whether that person is residing in the household or not. Evidence that the sponsored spouse or partner was cohabiting in a conjugal relationship with their sponsor until the cohabitation ceased as a result of the abuse or neglect would also be required. The exception would apply in cases where the abuse or neglect occurred during the conditional period and was directed towards the sponsored spouse or partner, a child of either the sponsor or the sponsored spouse or partner, or a person related to either the sponsor or the sponsored spouse or partner who was habitually residing in their household. Guidelines to assist officers in processing cases involving claims of abuse or neglect, and in handling sensitive information related to them, would be developed through consultations with various groups, including non-governmental organizations with expertise in domestic violence and law enforcement agencies, and would be publicly available prior to the final publication of this regulatory proposal. The condition would cease to apply where an officer determines, based on evidence, that (1) such abuse or neglect, or failure by the sponsor to protect from abuse or neglect, has occurred during the conditional period; and (2) the sponsored spouse or partner cohabited in a conjugal relationship with the sponsor until the cohabitation ceased as a result of abuse or neglect. The condition would also cease to apply where there is evidence that the sponsor has died while the sponsored spouse or partner is still subject to the condition, and that the sponsored spouse or partner had cohabited in a conjugal relationship with the sponsor up until the time of the sponsor’s death.

Regulatory and non-regulatory options considered

On September 30, 2010, CIC amended section 4 of the Immigration and Refugee Protection Regulations to clarify the test used to determine whether or not a family relationship was entered into in “bad faith.” This clarification is intended to protect the integrity of the immigration system and enable a more consistent assessment and identification of relationships of convenience by ensuring that a finding of “bad faith” can be made if a relationship was entered into primarily for the purpose of acquiring any status or privilege under IRPA, or if it is not genuine. Assessing the bona fides of a relationship prior to granting immigration status continues to be the most important and effective way to deter marriage fraud. Through a separate regulatory proposal, CIC is seeking to introduce a measure to bar an individual who became a permanent resident as a spouse, common-law or conjugal partner from sponsoring a subsequent spouse, common-law or conjugal partner for a period of five years following the date they became a permanent resident. The primary intent of this regulatory amendment would be to deter sponsored spouses and partners from using a relationship of convenience as a means of circumventing Canada’s immigration laws by abandoning their sponsor soon after arriving in the country and then seeking to sponsor a new spouse or partner. The proposed regulatory amendment for this measure was pre-published in the Canada Gazette, Part Ⅰ, on April 2, 2011. Operationally, and particularly at some overseas missions known to have a high incidence of marriage fraud, CIC relies on interviews of spouses and partners being sponsored to identify and deter fraudulent marriage applications. While the use of interviews requires resources, such interviews have proven effective in identifying and deterring marriages of convenience. An anti-fraud media campaign that included informational materials on marriage fraud on CIC’s Web page, Web page advertisements and a short video posted to social media sites on marriage fraud was launched in the spring of 2011. Further immigration anti-fraud public messaging — including a marriage fraud component — is anticipated in 2012. While these ongoing and proposed measures contribute to deterring marriage fraud at the onset of the sponsorship process, i.e. prior to permanent residence being granted, they are of little help in identifying and enforcing removals on fraudsters who manage to make their way to Canada. The proposed regulatory amendment would provide the Government with an additional enforcement tool against marriage fraud.

Benefits and costs

A cost-benefit analysis of the proposed conditional permanent residence measure has been completed and is available upon request. The cost-benefit analysis assumes a baseline scenario whereby newly sponsored spouses, common-law and conjugal partners are not subject to a conditional measure. The baseline was then compared with the proposed conditional permanent residence framework. Based on this comparison, it is estimated that the proposed regulatory change is expected to generate an overall monetized net cost due to the resources required to introduce the proposed conditional measure, investigate cases of alleged fraud and take enforcement action against those found to be non-compliant with the condition, as well as resources associated with the expected increase in admissibility hearings and appeals. The total estimated cost for the analysis period (2012–2021) to implement a conditional permanent residence measure is projected to be approximately $11 million. The total corresponding estimated benefit is of $5.5 million, largely due to a reduction in fraudulent spousal and partner applications. By comparing the quantitative costs and benefits of both scenarios, it is estimated that the proposed amendments would generate a monetized cost in the range of $5.5 million over the analysis period. However, there are non-monetized benefits that would stem from the proposed amendments, including

• improving the integrity of Canada’s immigration program associated with reducing fraudulent activity in the program;
• strengthening government capacity to detect relationships of convenience and remove those who use marriage fraud to circumvent Canadian immigration laws;
• reducing the vulnerability of Canadians who may be subject to fraudulent intentions by foreign nationals as a result of current immigration policies; and
• helping potential sponsors avoid the pain and stress associated with being a victim of marriage fraud.

Cost-Benefit Analysis Results and Summary Table

Costs, benefits and distribution		Base Year 2012	Year Five 2017	Final Year 2021	Total	Annual Average
A. Quantified impacts in millions of present value dollars (in 2012 dollars)
Benefits	Stakeholders
Processing benefit of deterred fraudulent spouses and partners.	Government of Canada	0.0	0.6	0.3	5.3	0.5
Reduced financial liability for sponsors by deterring fraudulent spouses and partners.	Canadian sponsors	0.00	0.02	0.0	0.14	0.01
Total benefits		0.00	0.6	0.3	5.5	0.5
Costs	Stakeholders
Administrative costs: includes transition costs (updating forms, communications, training, etc.), corporate service advisory costs, and call centre costs due to an anticipated increase in call volumes.	CIC / Government of Canada	0.6	0.2	0.07	1.7	0.2
Processing and enforcement costs: includes costs associated with increases in Level 1 (desk) and Level 2 (field) investigations, increases in hearings with respect to removal orders before the Immigration Division (ID) and Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB), removals and detention, and verification costs for claims of abuse or neglect.	CIC, CBSA(see footnote *), IRB	0.0	1.2	0.9	8.6	0.9
Costs to provide evidence for exceptions.	Conditional permanent residents	0.00	0.07	0.06	0.7	0.07
Total costs		0.6	1.5	1.0	11.0	1.1
Net benefits (NPV)					–5.5	–0.6
B. Qualitative impacts
Benefits	Description of cost or benefit
Strengthening the tools available to detect relationships of convenience and to take enforcement action.	It is anticipated that the conditional measure would provide a tool for enforcement action and contribute over time to the Government of Canada’s understanding of marriage fraud through improved tracking and identification of marriage fraud cases.
Improved integrity associated with reducing fraudulent activity in Canada’s immigration program.	It is anticipated that the introduction of a conditional measure would be a benefit to sponsors, sponsors’ family members, and Canadian society by serving as a deterrent to marriages of convenience, thus strengthening the overall integrity of Canada’s immigration program.
Helping potential sponsors avoid the pain and stress associated with being a victim of marriage fraud. This measure reduces vulnerability of Canadians who may be subject to marriage fraud.	It is anticipated that deterring fraudulent spouses and partners through the use of a conditional measure would reduce the vulnerability of Canadians to this form of fraud, as well as all the pain and stress such fraud could cause potential sponsors.
Costs	Description of cost or benefit
Concerns of increased vulnerability to domestic violence.	There are concerns that the conditional status measure could increase the vulnerability of sponsored spouses and partners to domestic violence, as applicants may mistakenly believe that they must remain in an abusive relationship in order to maintain their permanent resident status under the proposed condition. To mitigate these concerns, the condition would cease to apply where there is evidence of abuse or neglect by the sponsor, or a failure by the sponsor to protect from abuse or neglect. Guidelines to assist officers in processing cases involving claims of abuse or neglect, and in handling sensitive information related to them, would be developed through consultations with various groups, including non-governmental organizations with expertise in domestic violence.
Other recourse costs.	In instances where a marriage of convenience is determined to have occurred, the Immigration and Refugee Board’s Immigration Division (ID) may hold an admissibility hearing and decide whether to issue a removal order. Removal orders can be appealed to the Immigration Appeal Division (IAD). Where the IAD upholds the ID’s decision to issue a removal order, removal action may be initiated. In such circumstances, the person affected may pursue other avenues to remain in Canada. Costs associated with this activity were not quantified due to lack of reliable data.
Death of sponsor exception.	The condition would also cease to apply where there is evidence that the sponsor has died while the sponsored person is still subject to the condition, and that the sponsored spouse or partner had cohabited in a conjugal relationship with the sponsor up until the time of the sponsor’s death. Given the small number of cases where this exception is anticipated to apply, as well as the minor costs that such exceptions would imply, with respect to the gathering of evidence by the sponsored spouse or partner, these costs are examined qualitatively for the purposes of the cost-benefit analysis.

Rationale

As described above, regulatory and non-regulatory initiatives have been undertaken by the Department to curb marriage fraud. While they are consistent with the Government’s 2011 commitment in the Speech from the Throne to protect the integrity of Canada’s immigration system through, among other initiatives, the introduction of various measures to address marriage fraud, they are not sufficient. Under the existing regulations, limited tools are available to efficiently identify and enforce removals as a result of marriage fraud once sponsored spouses and partners have been granted permanent residence in Canada. It is believed that the number of marriages of convenience in Canada would continue to present a problem, undermining the integrity of the immigration system and, in some instances, victimizing Canadian sponsors and their families if the status quo is maintained. The proposed amendment would not only act as an additional deterrent to marriage fraud, but would provide the Government with an additional enforcement tool against this type of fraud. Although the proposed regulatory amendment would have a net monetized cost, the non-monetized benefits would outweigh the costs. In conjunction with non-regulatory anti-fraud measures, this proposal would enhance the integrity of Canada’s spousal sponsorship immigration program. The Department of Citizenship and Immigration recognized the concerns related to the vulnerability of spouses and partners who are in abusive relationships and paid particular attention to the development of the exception to the condition for spouses and partners in such situations expressly to prevent putting these individuals at further risk.

Consultation

The Minister of Citizenship and Immigration held a series of town hall meetings in the fall of 2010 to gather the public’s views on relationships of convenience and ideas on how to address them. During these sessions, the Minister heard from many sponsors who had been misled by a foreign national who left them soon after receiving their Canadian permanent resident status. The Department of Citizenship and Immigration also held online consultations in the fall of 2010 to gather the public’s views on marriages of convenience. The consultations generated approximately 2 400 responses from the general public and 90 from individuals who self-identified as representatives of stakeholder organizations. Overall, three-quarters (77%) of respondents indicated that they considered relationships of convenience to be a “serious” or “very serious” threat to the integrity of Canada’s immigration system. The consultations revealed strong support for measures to address marriages of convenience. The results also indicated strong support for the introduction of a form of conditional status period, with more than two-thirds of respondents in favour of such a measure. A Notice of Intent outlining the proposed conditional permanent residence measure was published in the Canada Gazette, Part Ⅰ, on March 26, 2011, followed by a 30-day comment period. Eighty-four responses, mostly from social service providers (e.g. immigrant settlement organizations and shelter workers) and immigration experts (e.g. lawyers and academics), were received by CIC. The majority of these respondents expressed concern that a conditional measure could increase the vulnerability of sponsored spouses and partners to domestic violence. The Department of Citizenship and Immigration also consulted the provinces and territories on the proposal to introduce a conditional measure. While there was agreement that further action should be taken to address marriages of convenience, concerns were expressed that the proposed conditional period would increase the vulnerability of sponsored spouses and partners to domestic violence. The Department of Citizenship and Immigration consulted other federal departments throughout the development of this regulatory package, including the CBSA, as the Agency shares some of the responsibilities under the IRPA; Status of Women Canada and the RCMP. Other countries where a similar conditional measure exists were consulted as well. Guidelines to assist officers in processing cases involving claims of abuse or neglect, and in handling sensitive information related to them, would be developed through consultations with various groups, including non-governmental organizations with expertise in domestic violence, and law enforcement agencies, and would be publicly available prior to the final publication of this regulatory proposal.

Implementation, enforcement and service standards

As a result of the introduction of conditional permanent residence, additional investigations (e.g. checks of internal records systems, background checks, research and phone calls made to a sponsor or conditional permanent resident and interviews) may be undertaken in cases where there is reason to believe that the condition is not being met or has not been met. CIC will also perform random assessments of the overall level of compliance with the condition on an ongoing basis. These could lead to an annual increase in inadmissibility reports from the CBSA and CIC on the basis of non-compliance with the proposed condition. These inadmissibility reports could in turn lead to the issuance of removal orders by the Immigration Division of the Immigration and Refugee Board.

Contact

Caroline Riverin Beaulieu
Deputy Director
Social Policy and Programs
Immigration Branch
Citizenship and Immigration Canada
Telephone: 613-954-3483
Fax: 613-941-9014
Email: Caroline.RiverinBeaulieu@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 5(1) and section 32 of the Immigration and Refugee Protection Act (see footnote a), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations. Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part Ⅰ, and the date of publication of this notice, and be addressed to Caroline Riverin Beaulieu, Deputy Director, Social Immigration Policy and Programs, Department of Citizenship and Immigration, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-954-3483; fax: 613-941-9014; email: Caroline. RiverinBeaulieu@cic.gc.ca). Ottawa, March 1, 2012 JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENT 1. The Immigration and Refugee Protection Regulations (see footnote 1) are amended by adding the following after section 72:

DIVISION 8

CONDITION APPLICABLE TO CERTAIN PERMANENT RESIDENTS Condition 72.1 (1) Subject to subsections (4) and (5), a permanent resident described in subsection (2) is subject to the condition that they must cohabit in a conjugal relationship with their sponsor for a continuous period of two years after the day on which they became a permanent resident. Permanent resident subject to the condition (2) For the purpose of subsection (1), the permanent resident is a person who was a foreign national who

1. (a) became a permanent resident after making an application for permanent residence as a member of the family class, or an application as a member of the spouse or common-law partner in Canada class to remain in Canada as a permanent resident, as applicable;
2. (b) at the time the sponsor filed a sponsorship application with respect to the person under paragraph 130(1)(c) had been the spouse, common-law partner or conjugal partner of the sponsor, as applicable, for a period of two years or less; and
3. (c) had no child in respect of whom both they and the sponsor were the parents at the time the sponsor filed a sponsorship application with respect to the person under paragraph 130(1)(c).
   

Evidence of compliance (3) A permanent resident referred to in subsection (1) must provide evidence of their compliance with the condition referred to in that subsection to an officer if

1. (a) the officer requests such evidence because they have reason to believe that the permanent resident is not complying or has not complied with the condition; or
2. (b) the officer requests such evidence as part of a random assessment of the overall level of compliance with that condition by the permanent residents who are or were subject to it.
   

Exception — sponsor’s death (4) The condition referred to in subsection (1) ceases to apply in respect of a permanent resident referred to in that subsection if the sponsor dies during the two-year period referred to in that subsection, the permanent resident provides evidence to that effect to an officer and the officer determines, based on evidence provided by the permanent resident or on any other relevant evidence, that the permanent resident had continued to cohabit in a conjugal relationship with the sponsor until the sponsor’s death. Exception — abuse or neglect (5) The condition referred to in subsection (1) also ceases to apply in respect of a permanent resident referred to in that subsection if an officer determines, based on evidence provided by the permanent resident or on any other relevant evidence, that

1. (a) the permanent resident
   1. (i) is not able to meet the condition throughout the two-year period referred to in that subsection because the permanent resident or a child of the permanent resident or the sponsor, or a person who is related to the permanent resident or the sponsor and who is habitually residing in their household, is subjected by the sponsor to any abuse or neglect referred to in subsection (6) during that period, and
   2. (ii) has continued to cohabit in a conjugal relationship with the sponsor during that period until the cohabitation ceased as a result of the abuse or neglect; or
2. (b) the permanent resident
   
   1. 
      (i) is not able to meet the condition throughout the two-year period referred to in subsec-tion (1) because the sponsor has failed to protect the permanent resident or a child of the permanent resident or the sponsor, or a person who is related to the permanent resident or the sponsor and who is habitually residing in their household, from any abuse or neglect referred to in subsection (6) during that period by an-other person who is related to the sponsor, whether that person is residing in the household or not, and
   2. (ii) has continued to cohabit in a conjugal relationship with the sponsor during that period until the cohabitation ceased as a result of the abuse or neglect.

Abuse and neglect (6) For the purpose of subsection (5),

1. (a) abuse consists of any of the following:
   1. (i) physical abuse, including assault and forcible confinement,
   2. (ii) sexual abuse, including sexual contact without consent,
   3. (iii) psychological abuse, including threats and intimidation, or
   4. (iv) financial abuse, including fraud and extortion; and
2. (b) neglect consists of the failure to provide the necessaries of life, such as food, clothing, medical care or shelter, and any other omission that results in a risk of serious harm.
   

Related person (7) For the purposes of subsections (5) and (6), a person is related to the permanent resident or the sponsor if they are related to them by blood, adoption, marriage, common-law partnership or conjugal partnership. Condition for accompanying family members 72.2 (1) Subject to subsection (2), a permanent resident who became a permanent resident as an accompanying family member of a permanent resident referred to in subsection 72.1(1) is subject to the condition that the permanent resident in respect of whom they were an accompanying family member meets the condition set out in subsection 72.1(1). Exception for accompanying family members (2) Subsection (1) does not apply in respect of a permanent resident who became a permanent resident as an accompanying family member of a permanent resident referred to in subsection 72.1(1) if the permanent resident in respect of whom they were an accompanying family member is one to whom an exception referred to in subsection 72.1(4) or (5) applies. Condition for sponsored person and their accompanying family members 72.3 (1) Subject to subsection (2), a permanent resident who became a permanent resident after being sponsored, either during or after the period referred to in subsection 72.1(1), by a sponsor who is a permanent resident referred to in that subsection, is subject to the condition that the sponsoring permanent resident meets the condition set out in subsection 72.1(1). Exception for sponsored person and their accompanying family members (2) Subsection (1) does not apply in respect of a permanent resident who became a permanent resident after being sponsored by a permanent resident referred to in subsection 72.1(1), if the sponsoring permanent resident is one in respect of whom an exception referred to in subsection 72.1(4) or (5) applies. Clarification 72.4 For greater certainty, for the purposes of subsection 27(2) of the Act, a permanent resident who fails to meet the condition set out in subsection 72.1(1) is considered not to comply with that condition, whether the failure to meet that condition is confirmed during or after the two-year period referred to in subsection 72.1(1).

COMING INTO FORCE

2. These Regulations come into force on the day on which they are registered. [10-1-o]