April 11, 2012
Most Recent Submission With Regards to The Proposed Regulations on Conditional Permanent Residence
This is the most recent submission with regards to the proposed regulations that spouses, common-law partners and conjugal partners who have been married or living in a common law relationship with their sponsor for two years or less be subject to a period of conditional permanent residence for two years after landing, during which time they are expected to remain in that relationship. Mario D. Bellissimo is currently serving as Treasurer of the Canadian Bar Association, Immigration Section.
Re: Immigration and Refugee Protection Regulations: Conditional Permanent Residence, Canada Gazette Part 1, March 10, 2012
I am writing on behalf of the National Immigration Law Section of the Canadian Bar Association (CBA Section) to comment on the proposed regulations pre-published in the Canada Gazette on March 10, 2012.
These draft regulations cement the government’s proposal that spouses, common-law partners and conjugal partners who have been married or living in a common law relationship with their sponsor for two years or less be subject to a period of conditional permanent residence for two years after landing, during which time they are expected to remain in that relationship.
In May 2011, the CBA Section wrote to CIC raising several concerns in response to the government’s notice of intent about conditional permanent residence. (A copy is attached for your ease of reference.) We are heartened by some of the changes in the most recent draft regulations. However, we believe that the proposed regulations still fall short of their objectives of determining marriage fraud, while at the same time creating unnecessary hardship for bona fide spouses who experience genuine marriage breakdown within two years of landing in Canada.
The government has addressed a number of our main concerns, including the creation of an exception for victims of domestic violence and other forms of spousal abuse. There also now seems to be an exception in the regime for couples who had children prior to filing the application to sponsor the permanent resident. We applaud both changes as being within the spirit of fairness.
None of the changes seem to have an impact on the rights of conditional permanent residents to access the Appeal Division of the Immigration and Refugee Board, which provides a means by which an independent tribunal can provide equitable review of all the circumstances affecting the permanent resident. This is fair, in our view.
Nevertheless, some issues are unclear, many of our concerns remain unaddressed, and we recommend further changes to make the system fair. These can be summarized as follows:
- The regulations are not clear on whether conditional permanent residence automatically ends in two years.
- The regulations offer no exception for marriage breakdown in situations where a child is born after filing the sponsorship application but prior to landing, or subsequent to landing but prior to the expiration of the two year period. These children would face a parent being removed from Canada, while children born prior to filing the sponsorship application would not. This seems to be an arbitrary distinction, that may well be against the best interests of those children.
- Any children who accompanied a spouse from a prior relationship will also face removal proceedings in the event of a genuine marriage breakdown, which will not always be in their best interests.
- The regulations offer no exception for termination of the conjugal relationship in good faith.
- No guidance is given on the evidence of abuse or neglect needed to end the condition.
- Section 72.4 places no limitation on when the conditions can be reviewed for compliance.
- The argument for why conditional permanent residence is necessary to curtail fraud has not been effectively made.
- Canada’s immigration scheme already has numerous mechanisms to prevent marriage fraud. We will elaborate further on each of these points.
1. End of the Conditional Period
The proposed regulations do not clearly state whether spouses and common-law partners subject to the condition must apply to have the condition removed at the end of the two-year period, or if the condition will end automatically if the department has not initiated an investigation into breach of conditions during the two year period following landing.
If the intent is to have affected persons apply for removal of the condition at the end of the period, it would increase the workload of immigration officers, and potentially add to existing processing delays.
2. Impact on Children Born After Landing
The Regulatory Impact Analysis Statement notes (emphasis added):
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
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 proposed amendments to the Regulations read (emphasis added):
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…
(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).
While we commend the government for taking into consideration children of the marriage in s.72.1(2)(c), we question why the condition of cohabitation for two years following receipt of permanent resident status is waived only where children were born at the time of filing the sponsorship application.
If the existence of children is relevant in determining the bona fides of a relationship, then a birth at any time up to receipt of permanent resident status by the sponsored spouse, or birth in the two years after landing, (if the relationship breaks up in this two year period), should also result in the condition of two years’ cohabitation following receipt of permanent resident status being waived.
Otherwise, a Canadian-born child could face the removal of a parent. Canada’s immigration regulatory scheme is informed by an obligation to look at the best interests of any children affected.
3. Disproportionate Impact on Children of Conditional Permanent Residents
Section 72.4 of the proposed regulations will have a disproportionate impact on children of conditional permanent residents as defined in s. 72.2. Section 72.4 allows for the enforcement process against a conditional permanent resident to start many years after landing. The result could be to impose a penalty on the children of the conditional permanent resident who may have spent most of their life in Canada. Through no fault of their own they will face removal of their parent (the conditional permanent resident) from Canada, and their own removal and uprooting from Canada. We suggest that the regulation take into account the best interests of the child, with a process to determine the best interests.
The conditional permanent resident’s subsequent sponsored spouse or family members as defined in s.72.3 face the same disproportionate punitive effect of s. 72.4 as described above. It will put at risk of removal from Canada, for example, spouses or adopted children sponsored many years after the conditional permanent resident first landed. The subsequent spouse or adopted children may have nothing to do with the initial sponsorship that triggered the conditional PR. Yet, they will be at risk of being removed from Canada, without fault.
4. Termination of Conjugal Relationship in Good Faith
The initial Notice of Intent published in Canada Gazette in March 20111, indicated that “only cases targeted for fraud would be reviewed during the two year period”. By contrast, s. 72.1(3)(b) of the proposed regulation says a permanent resident must provide evidence of compliance with the condition if an officer has reasonable grounds to suspect bad faith OR “requests such evidence as part of a random assessment of the overall level of compliance.”
The proposed regulations offer no exception for conjugal relationships that end in good faith through no fault of the conditional permanent resident. This places the sponsored spouse or partner at risk, in that the sponsoring spouse could use the threat of divorce proceedings to exert undue influence over a vulnerable spouse.
The CBA Section believes that this goes beyond the stated objective of deterring marriage fraud.We recommend that exception be added for conjugal relationships shown to be bona fide, similar to the exception in the US law.2
5. Evidence of Abuse or Neglect
The CBA Section welcomes the exception for victims of domestic violence and other forms of spousal abuse. However, the proposed regulations give no guidance on what evidence of abuse or neglect will be required to end the condition. Many abused spouses or partners do not report the conduct to authorities, which can make it difficult to establish abuse or neglect. Further, any uncertainty about whether there will be a finding of abuse or neglect may deter the sponsored spouse or common-law partner from ending the conjugal relationship, putting already vulnerable persons at greater risk.
6. No Limit on Compliance Requirement Unfair; Potential Hardship Disproportionate to Harm it was intended to Address
Section 72.4 of the proposed regulations would enable CIC and CBSA to find a permanent resident non-compliant with the conditions of their landing, even if that determination is made well after the initial two-year condition has ended. This would render affected spouses vulnerable to investigation and loss of status on a virtually indefinite basis, even in the absence of any evidence of misrepresentation or fraud on their part. The hardship imposed is disproportionate, and does not address the program integrity issue it was designed to address.
Where there is reason to believe that the condition is not or has not been met, CIC and CBSA should complete their investigation within a reasonable time. Currently, CIC and CBSA often take more than two years from an allegation of misrepresentation to even look at the file and then many more months to make a decision. In the meantime, the sponsored person’s life is on hold. They cannot apply for citizenship or a five year PR Card renewal, resulting in uncertainty about their status and future in Canada.
In fact, as many investigations turn out negative, unwarranted stress is put on the person concerned. With a limitation on the number of years after landing that an investigation can occur, as well as a limitation on the length of the investigation, CIC can balance the need to prevent fraud in sponsorship, while not putting undue stress on, and instability into, the sponsored person’s life.
The CBA Section proposes a specific time limitation for these investigations. Investigations for an allegation that the sponsored person did not meet the requirements of the conditional permanent residence should not be permitted if the sponsored person has been landed for five years or more. This would be consistent with the recently introduced five year bar from sponsoring a second spouse or partner where the prospective sponsor was previously sponsored to come to Canada.
7. Not Proven Effective in Addressing Marriage Fraud in Other Jurisdictions
As outlined in our May 2011 letter, there is no evidence from the three cited jurisdictions (US, UK and Australia) that making permanent residence subject to a condition is a viable means to deter marriage fraud. Indeed, the research is inconclusive in this regard, and other jurisdictions that attempted conditional permanent residence in the past appear to be looking for more effective alternatives.
8. Existing Enforcement Mechanisms
Canada’s immigration scheme already contains numerous mechanisms to prevent marriage fraud, including:
- The most important measure, screening sponsorship cases when an application is assessed by a Canadian visa office or case processing centre.
- The Immigration and Refugee Protection Act (IRPA) prohibits obtaining permanent residence by misrepresentation or inducing another person to commit misrepresentation.
- The recent introduction of a five year bar from the date of landing to sponsor a second spouse or partner where the prospective sponsor was previously sponsored to come to Canada. As well, a sponsor may not sponsor a subsequent spouse or partner for the three year undertaking of support after landing.
The CBA Section believes the government should attempt more enforcement in the current framework, before imposing changes that have the potential for serious negative impact.
Joshua B. Sohn
National Immigration Law Section