ARCHIVED — Vol. 146, No. 6 — March 14, 2012
SOR/2012-20 March 2, 2012
IMMIGRATION AND REFUGEE PROTECTION ACT
Regulations Amending the Immigration and Refugee Protection Regulations
P.C. 2012-213 March 1, 2012
His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 14 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
REGULATIONS AMENDING THE IMMIGRATION AND
REFUGEE PROTECTION REGULATIONS
1. (1) The portion of subsection 130(1) of the Immigration and Refugee Protection Regulations (see footnote 1) before paragraph (a) is replaced by the following:
130. (1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who
(2) Subsection 130(2) of the Regulations is replaced by the following:
Sponsor not residing in Canada
(2) A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes an application referred to in subsection (1) and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident.
(3) A sponsor who became a permanent resident after being sponsored as a spouse, common-law partner or conjugal partner under subsection 13(1) of the Act may not sponsor a foreign national referred to in subsection (1) as a spouse, common-law partner or conjugal partner, unless the sponsor
- (a) has been a permanent resident for a period of at least five years immediately preceding the day on which a sponsorship application referred to in paragraph 130(1)(c) is filed by the sponsor in respect of the foreign national; or
- (b) has become a Canadian citizen during the period of five years immediately preceding the day referred to in paragraph (a) and had been a permanent resident from at least the beginning of that period until the day on which the sponsor became a Canadian citizen.
COMING INTO FORCE
2. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Issue and objectives
One of the objectives of the Immigration and Refugee Protection Act (IRPA) is to facilitate family reunification. Therefore, Canadian citizens and permanent residents may sponsor their spouse, common-law partner or conjugal partner as a Canadian permanent resident. Spousal sponsorship requires an undertaking of financial responsibility for a spouse or partner for three years. If the relationship breaks down, the sponsor remains financially responsible until the end of the three-year undertaking period, irrespective of the causes of the breakdown. As well, a sponsor may not sponsor a subsequent spouse or partner for the duration of the three-year undertaking period.
Spousal sponsorship is open to abuse when individuals enter into non bona fide relationships in order to facilitate entry into Canada. Relationships that are not genuine or that have been entered into primarily in order to gain status or privilege under Canada’s immigration laws are, by virtue of section 4 of the Immigration and Refugee Protection Regulations (IRPR), not recognized for the purposes of those Regulations.
In some fraudulent relationships, both parties may be aware that the relationship is for immigration purposes. In others, the sponsor believes the relationship to be genuine, while the sponsored foreign national intends to dissolve the relationship shortly after being granted permanent residence in Canada. In some instances, the newly arrived permanent resident then sponsors a new spouse or common-law partner for immigration, while the original sponsor remains bound to their financial undertaking. Both types of relationships of convenience undermine the integrity of Canada’s immigration program.
While firm figures on the extent of bad faith relationships are not available, about 46 300 immigration applications for spouses and partners were processed in 2010 (39 800 from abroad and 6 500 from in Canada). Of these applications, about 16% were refused. It is estimated that most of these refusals were made on the basis of a bad faith relationship. Other reasons, such as criminality, security, medical issues and sponsor ineligibility, account for the remainder of negative decisions.
Although non bona fide relationships are prohibited under the IRPR, they are often a challenge to identify and substantiate. In order to protect the integrity of the immigration system, additional measures are needed to deter individuals who might otherwise use a relationship of convenience to circumvent Canada’s immigration laws.
The objectives of the amendments are
- (a) to strengthen the integrity of Canada’s immigration system by creating a deterrent to relationships of convenience; and
- (b) to clarify portions of the existing subsection 130(2) of the IRPR with regard to sponsorship.
Description and rationale
The amendments modify section 130 of the IRPR, which describes the criteria that an individual must meet in order to sponsor a foreign national making an application for permanent residence as a member of the family class or the spouse or common-law partner in Canada class.
The amendment bars an individual who became a permanent resident after being sponsored as a spouse, common-law or conjugal partner from sponsoring a new spouse, common-law or conjugal partner unless this individual
- (a) has been a permanent resident for a period of at least five years immediately preceding the day on which a sponsorship application is filed by the sponsor; or
- (b) has become a Canadian citizen during the period of five years immediately preceding the day on which a sponsorship application is filed by the sponsor and had been a permanent resident from at least the beginning of that period until the day on which the sponsor became a Canadian citizen.
The proposed Regulations, as pre-published in the Canada Gazette, Part Ⅰ, on April 2, 2011, were reworded to ensure clear and consistent interpretation to better reflect the policy intent. The reference point for the calculation of the five-year period was changed to the date on which the sponsorship application is filed by the sponsor instead of the date on which the permanent residence application is filed by the foreign national. This is more logical as the bar applies to the individual making the sponsorship, not to the foreign national being sponsored. The wording of the Regulations was also amended to better reflect the intention that the five-year period as a permanent resident, Canadian citizen or a combination of both statuses be uninterrupted.
Other members of the family class would not be affected by the regulatory changes.
The primary intent of the amendments is to create a disincentive for a sponsored spouse or partner to use 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 bar will also help to deter some relationships of convenience in which the sponsor and the sponsored foreign national are both complicit in committing the fraud.
The five-year bar is consistent with similar restrictions imposed by Australia, New Zealand and the United States.
Minor editorial changes are being made to subsection 130(2) to clarify the existing Regulations with regard to sponsorship of a foreign national. These changes specify that a sponsor may sponsor a foreign national who makes an application for permanent residence as a spouse or partner, rather than sponsor an application for permanent residence made by a foreign national as a spouse or partner.
These regulatory changes are not expected to introduce new expenses to the Government of Canada. Minimal costs associated with updates to guidelines and operational manuals, standard officer training, and informational materials are expected.
The Minister of Citizenship and Immigration hosted a series of town hall meetings on relationship fraud in the fall of 2010 to gather the public’s views and ideas on combating relationship fraud. The town hall meetings revealed the negative impact of relationship fraud on the lives of Canadian citizens and permanent residents who sponsor a spouse or partner.
In addition, Citizenship and Immigration Canada (CIC) conducted online consultations in the fall of 2010 to gather views on relationships of convenience and possible means of addressing them. The online consultations generated nearly 2 400 responses, including about 90 from respondents who identified themselves as stakeholders, mainly representing organizations providing legal and other immigration services to immigrants. Respondents expressed considerable concern about relationships of convenience, with over three quarters (77%) of them indicating that they considered relationships of convenience to be a “serious” or “very serious” threat to the integrity of Canada’s immigration system. The consultation also found strong support for measures and actions to be taken by the Government of Canada to address relationships of convenience, including broad support for a sponsorship bar measure.
Provinces and territories were also consulted on the idea of a sponsorship bar. Of those who responded, most were supportive of a sponsorship bar, although some expressed preference for a three-year bar as it would be equal in length to the current bar on sponsors.
The proposal for a five-year sponsorship bar measure was pre-published in the Canada Gazette, Part Ⅰ, on April 2, 2011, and was open to public and stakeholder comments for a period of 30 days. Response was mixed with regard to the length of the bar and concerns were raised about its impact on sponsors, particularly in instances of genuine breakdown.
All comments received as part of these consultation processes were given due consideration. However, after careful consideration of all comments received, CIC decided to keep the length of the bar at five years in order to strengthen its effectiveness as a deterrent for relationship fraud and to better protect the integrity of Canada’s immigration program. A five-year bar is sufficiently long to discourage fraud without being overly onerous for those who have suffered a legitimate relationship breakdown. This is particularly the case when one considers that a sponsored spouse or partner becomes a permanent resident on the basis of their relationship with their sponsor.
A five-year bar will also align Canada’s measure with the five-year sponsorship bars imposed by other immigrant-receiving countries, such as the United States, Australia and New Zealand, to deter relationship fraud. If Canada’s measure were shorter in duration than those of other countries, it could appear to be relatively lenient and this could potentially reduce its effectiveness as a fraud deterrent.
The five-year bar does not impose limitations on Canadian permanent residents or citizens sponsored as spouses or partners beyond restricting their ability to sponsor a new spouse or partner within the specified timeframe.
Implementation, enforcement and service standards
Implementation of the amendments requires updates to guidelines in policy manuals in order to inform immigration officers of regulatory changes. As these are amendments to existing Regulations, established enforcement measures and service standards will continue to apply.
Caroline Riverin Beaulieu
Social Policy and Programs
Citizenship and Immigration Canada
365 Laurier Avenue W
S.C. 2001, c. 27