New Regulations attempt to tackle marriage fraud.

By most estimates marriage fraud is a serious problem in Canada. [1] There are generally two kinds of marriage fraud the government has been focusing on.  The first typically occurs when a Canadian citizen or permanent resident enters into a contractual relationship with a foreign national whereby the person with status agrees to either marry or pose as a partner and then sponsor the foreign national in exchange for a sum of money.  In these cases both parties knowingly commit a fraud against the Canadian government.  The offence is punishable by up to a $100,000.00 fine and or 5 years imprisonment  [2] not only for the parties engaged in the illegal agreement but also for anyone who counsels, induces or aids the parties with their fraud.

The second common type of marriage fraud occurs where the Canadian citizen or permanent resident is duped into a fraudulent marriage.  In this case the foreign national convinces the Canadian spouse to enter into what they believe is a legitimate marriage.  Shortly after the foreign national gains their permanent residence, they abandon their Canadian sponsor and are never heard from again.  This one sided fraud is also punishable in the same manner as noted above.  The government has attempted to bring this kind of fraud to the attention of Canadians by posting informative videos and setting up a specific website to try and combat the problem.

In March of 2011 the government introduced legislation prohibiting sponsored spouses and partners from sponsoring a new spouse or partner for five years following the date they become a permanent resident.  [3] This legislation is meant to deter those who arriving on fraudulently obtained sponsorship visas from quickly divorcing their sponsor and then using their own permanent resident status as the basis for then sponsoring their actual spouse.

New Regulations

As of October 25, 2012 new regulations now in effect that dramatically alter spousal/partner sponsorships.  The new regulations apply to spouses and partners who are in a relationship of 2 years or less and have no children in common at the time the sponsorship application is submitted.  The following changes are now in effect:

a) spouses and partners will now receive a 2 year conditional permanent residence visa during which time the parties must live in a bona fide relationship.  The failure to maintain the relationship during this 2 year period may result in the revocation of permanent residency for the sponsored spouse or partner.

b) where the sponsored party is able to provide evidence of neglect or abuse they   may be exempted from the 2 year condition.

 

The government is obviously hoping to curb marriage fraud by creating the conditional permanent residency for spouses and partners.  As well the government points out that other jurisdictions such as the United Kingdom and the United States already have similar provisions and thus there was a desire to ensure Canada was not perceived as an “easy mark” by those seeking to gain status through fraud.

Only time will tell whether these new provisions achieve their stated goal of preventing or reducing marriage fraud.  The most obvious hurdle is the ability to police the new regulations.  It is noteworthy that the entrepreneur class permanent resident visa program, which included similar conditional permanent residency provisions, was frozen due in part to the difficulty and cost of monitoring such visas.

The other serious concern is whether the conditional permanent residency visas will lead to an increase of exploitation and abuse against spouses and partners whose legitimate relationships fall under the radar of the exemptions provisions noted above.  Prior to the implementation of the new provisions such parties would have simply separated and attempted to move forward.  Under the new regulations such people will risk the loss of their permanent residency status if they attempt to the leave their relationship.  The new regulations also put the sponsor in a position of power which in some cases will be abused.

 


[1] It should be noted that the term “marriage fraud” is a misnomer.  In Canada, it is now possible to sponsor your spouse (marriage), your common-law partner (common law) and your conjugal partner (pending common law).  All of these unions are subject to regulations discussed in this article and will colloquially be referred to as marriage fraud.

[2] See section 125, 126 and 127 of IRPA.

[3] See section 130(3) of IRPR.

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