Immigration Legal Committee Condemns Spousal Sponsorship Changes

Introduction

The Immigration Legal Committee (ILC) of the Law Union of Ontario (LUO) calls on the Minister of Citizenship and Immigration Canada to scrap proposals to impose a two year “conditional residency” on sponsored spouses, common law partners and conjugal partners and a five year prohibition of sponsored persons who have left a relationship with their sponsor to sponsor their new spouse, common-law or conjugal partner. The proposals were published in the Canada Gazette as amendments to the Immigration and Refugee Protection Regulations (IRPRegs) on March 26, 2011 and April 2, 2011 respectively.

The ILC is a working group of the Law Union of Ontario. Founded in 1974, the Law Union of Ontario is a coalition of over 200 progressive lawyers, law students and legal workers that strives to develop collective approaches to the struggle for social justice. The Law Union of Ontario engages in legal education and advocacy initiatives in order to promote human rights and democracy both in Canada and abroad.

The ILC opposes the proposed changes to the IRPRegs on the grounds that:

1. Placing women in increasingly vulnerable situations:

In 2001 Status of Women Canada produced a research report on spousal sponsorship, “Sponsorship…For Better or For Worse” which demonstrated how the immigration spousal sponsorship regime in place at the time produced situations of inequality between spouses as well as common-law and conjugal partners for the duration of the sponsorship undertaking. The report stated that the regime reinforced “traditional roles of domination and sexual subordination within a marriage” and that “although not all sponsored women are negatively affected by the legal relationship, […] often sponsorship seems to be a source of conflict, tension, blackmail and at times abuse.” The report recommended that the sponsorship undertaking (to financially support the sponsored spouse for 10 years) be abolished completely, or reduced considerably. Parliament decided on a reduction of the duration of the sponsorship undertaking from 10 to 3 years and this change was implemented in the Immigration and Refugee Protection Act (IPRA). (Sponsorship for Better or for Worse: the Impact of Sponsorship on the Equality Rights of Immigrant Women. Andre Cote, Michele Kerisit, and Marie-Couise Cote, Status of Women Canada, March 2001 at page 1).

Under the proposed changes to the IRPRegs, a woman sponsored to Canada by an abusive sponsor would be forced to live with her sponsor for two years to prove the bona fides of the relationship or risk losing her permanent residence. The Minister has stated that “a process for allowing bona fide spouses and partners in such situations to come forward without facing enforcement action would be developed if a conditional permanent residence period were introduced.” However no clarity is provided on this critical issue. The ILC fears that the process that will be developed will merely duplicate the current guidelines for spouses in family violence situations found Citizenship and Immigration Canada’s Inland Processing Manual 5 (the IP5 Manual) which require a woman experiencing abuse to make an application on Humanitarian and Compassionate grounds, placing the onus on her to report the abuse, procure counsel and file the application, and to then ultimately rely on discretionary decision-making authority.

However it is well-researched that immigrant women face numerous barriers in obtaining protection from domestic abuse and are often reluctant to come forward in situations of abuse. Not only do they face isolation due to settlement issues that inherently accompany migration but they are also cut off from possible community support as they are often being controlled by the abuser and face isolation. Many women are also afraid of the stigma they may experience as a result of reporting abuse to the police, along with potential repercussions from the abuser and/or his family. Creating a further onus on the woman will greatly increase her risk of remaining in an abusive relationship rather than coming forward and reporting the abuse, and facing potentially complex and inaccessible means of retaining status.

Given the vulnerability inherent in sponsorship situations, Parliament saw fit to lower the duration of a spousal sponsorship undertaking from ten years to three years in 2001. It would be a giant step backwards to require a two year conditional period following the granting of permanent residence.

Furthermore, in cases where a woman who has survived abuse is able to leave an abusive relationship and retain her permanent residence, she may face additional disadvantage through a second proposed regulatory change to the IRPregs, introduced in the Canada Gazette on April 2, 2011, which prohibits any person who has been landed as a permanent resident by way of a spousal sponsorship from sponsoring another person as a spouse, common-law or conjugal partner for a five-year period from when they obtained permanent residence. This creates undue interference in the private personal lives of immigrant communities and undermines the family reunification objectives of Canadian immigration law.

2. Stigmatization of Certain Classes of Immigrants

The current Minister of Citizenship and Immigration Canada, Jason Kenney, has proposed a number of legislative and regulatory changes during his tenure that directly target and stigmatize immigrant and refugee communities. Accusatory public comments on Roma and Mexican refugees in particular ultimately led to the passing of the Balanced Refugee Reform Act, which will ensure lower acceptance rates of Convention Refugees in Canada.

The proposed changes to the IRPRegs are the Minister’s response to alleged “marriages of convenience.” A CBC News article “Marriages of Convenience Problems Persist” dated 10 November 2010 stated that India has been identified as a hot spot for allegedly fraudulent marriages. However, the CBC’s own investigation stated that an internal CIC memo from 2007 offered a number of viable procedures to enforce existing regulations, including: training for CIC officers; field investigations; consultations with communities that practise arranged marriages; etc. However, the Minister refused to adopt any of these suggestions, opting only to rely on “better use of technology” to allegedly provide service more quickly. (CBC, 10 November 2010)

The Minister has distorted the facts. The Government Notice appearing in the Canada Gazette on March 26, 2011 states that 16% of sponsorships were rejected in 2010, implying that the majority of these refused sponsorships are fraudulent relationships. However, this figure includes sponsorships where the person being sponsored has been found to be inadmissible for reasons other than the genuineness of the relationship (for example, criminal, security or even financial reasons). By the Minister’s own admission, “firm figures on the extent of marriage fraud are not available.” Furthermore it is unlikely that the quoted figure includes the numerous refused sponsorship cases that are ultimately overturned by the Immigration Appeal Division. The success rate in the IAD is very high for sponsorship appeals, indicating a far lower figure of allegedly fraudulent sponsorships.

The proposed changes to the IRPRegs use collective punishment for an over-inflated problem. They will force those in genuine relationships who run into trouble (or abuse) into staying in a relationship against one’s will in order to maintain their permanent residence. They will benefit the abuser who will be able to keep a sponsored spouse hostage by threatening dire immigration consequences if she chooses to leave the relationship. In the alternative, the sponsored person will be removed from Canada, purely because his or her relationship has fallen apart.

It is well-known that marriages and common-law relationships of Canadian citizens frequently fall apart. To hold sponsored immigrants to a punitive standard and more rigorously scrutinize their relationships is inappropriate and discriminatory.

3. These Proposals Offend our Charter of Rights and Freedoms

In the recent Supreme Court case Withler v Canada (AG) [2011] SCC 12 the Supreme Court clarified the equality provision under section 15 of the Canadian Charter of Rights and Freedoms in section 15. While immigration status is not explicitly an enumerated Charter ground (whereas citizenship is) it is however an “analogous ground.” Accordingly permanent residents sponsored as spouses, will be subject by law to significant new constraints.

Section 15 of the Charter is breached if there is a disadvantage to a group that is based on personal characteristics (see for e.g. Andrews v Law Society of British Columbia [1989] 1 SCR 143 at para. 18). Lacking the clear right to leave a spouse or partner is a disadvantage as compared to Canadian Citizens who can leave their partners upon the exercise of free choice. In Withler v. Canada (AG), the Supreme Court held that the assessment of a section 15 violation requires an approach that takes account of the full context of the claimant group’s situation, the actual impact of the law on that situation, and whether the impugned law perpetuates disadvantage to or negative stereotypes about that group.

In the context of a sponsored immigrant who finds herself in an abusive relationship upon entering Canada, the requirement to stay in a relationship for two years or suffer consequences of a complicated legal process in order to keep permanent resident status is an obvious disadvantage. Further, the proposed 5-year ban to sponsor anyone else limits her right to sponsor a new spouse or partner even though she may by that time be a Canadian citizen. This effectively creates two-tier citizenship rights.

As well, the courts consider stereotyping and prejudice on the basis of personal characteristics to be a violation of section 15 of the Charter. In the instant case, the Minister has made several public comments to both justify and publicize the proposed changes to the IRPRegs, thereby stereotyping sponsored migrants as fraudsters.

4. This Enforcement Measure is Unnecessary

There are trained Citizenship and Immigration Canada officers in every visa post and every inland office working to detect fraudulent relationships. Only last year, Minister Kenney gave these officers greater discretion to deny sponsorship applications by changing the legal test used to evaluate relationships between sponsors and sponsored family members from a conjunctive test (the relationship under the old rules had to be both non-genuine and primarily for the purposes of immigration) to a disjunctive test (now if it is either non-genuine or primarily for the purpose of immigration it is considered a fraudulent relationship).

According to Minister Kenney, however, these officers are not doing a good enough job. The figures from the Immigration Appeal Division for successful appeals however, tell a different story. If many appeals on sponsorship denials are successful, then it would seem that the officers are actually over-diligent in their pursuit of alleged fraud, otherwise the Immigration Appeal Division would not be required to re-make these officer’s decisions.

There are provisions already present in the IRPA to address fraud. Section 40 makes a foreign national inadmissible for misrepresentation, and the regulations bar re-entry to Canada for two years in this circumstance.

There are also other measures that can be implemented to address the issue of marriages of convenience. These measures have already been suggested to Minister Kenney in the internal documents dated 2007 (as published by CBC News). The recommendation of CIC advisers did not include something as drastic and draconian as the proposed changes to the IRPRegs.

Conclusion

The ILC submits that the proposed changes to the IRPRegs are discriminatory and unnecessary. They will impose collective punishment on people coming to Canada as sponsored spouses, common law partners and conjugal partners simply because they have been together with their sponsor for less than two years. Further, the changes will greatly increase the vulnerability and risk of abuse for women coming to Canada under this program. The Minister’s pre-occupation with system abuse and fraud ignores the larger problem of overly diligent officers denying genuine relationships and contributes to the ongoing stereotyping and vilification of immigrants and refugees. The Minister is called upon to scrap the proposed changes to the IRPRegs.

Submitted by the Immigration Legal Committee of the Law Union of Ontario

C/o Macdonald Scott or Jean Vecina, Carranza LLP 416/633-1065 ext 285, mac@carranza.on.ca

April 15, 2011