Your gateway to Canada

By Atty. Henry Moyal

NEW LAW HOPES TO DETER MARRIAGES OF CONVENIENCE

The Federal Immigration department has again made an announcement that on its face hopes to deter cheaters from defrauding the immigration system. In the newest plan to attack fraudsters, Hon. Jason Kenney has announced that any sponsorship application filed after October 25, 2012 will be caught by the new regulations. The new regulations will impose a two year conditional period for certain sponsored spouses similar to the two year probation period in the USA in the hope of deterring people from entering into marriages of convenience.

The term Marriage of Convenience is when a couple marry to obtain an immigration benefit and is not a genuine marriage relationship. Often one party provides financial compensation to marry just to obtain permanent residence. The popular USA movie Greencard is well known for this premise.

Until now, as soon as a sponsored spouse became a permanent resident, Canada Immigration would be very hesitant to go after the new immigrant if there was abuse or evidence of fraud (usually discovered by surprise by the sponsor after arrival of the spouse). Now, the immigration authorities have the power to remove new immigrants if there is proof that they have not lived with their spouse for two years after becoming permanent residents. Under the new rules, the couple must be together and living together for two years (starting from date of landing) or risk losing their permanent resident status. There does not seem to be any follow up process but rather the immigration authorities will go after the immigrants only once they are reported to be in violation. In other words, the regulations do not state that immigration will knock on your door after two years and there is nothing to do after two years to remove the condition. Further, the immigration authorities have clearly indicated that those in abusive relationships will be exempt.

For same of simplicity:

The condition applies if:

-couple is married for two years or less, or
-couple dated for four years but is married for two years of less, or
-couple have been in a conjugal relationship for two years or less, or
-couple has cohabited in a common law relationship for two years or less
AND
-do not have any children in common

Condition does not apply if:

-couple is married for more than two years, or
-couple have been in a conjugal relationship for more than two years, or-couple has cohabited in a common law relationship for more than two years, or
– have children in common

Regardless of the above, one must consider the overall effectiveness of the new rules. Minister Kenney has already imposed a five year suspension on new sponsored immigrants from sponsoring a new spouse. Now, with the new two year conditional period, will it really stop fraudsters? Cheaters and con artists are chameleons. Those who are willing to pay someone to marry will simply stay in the relationship for two years before filing for divorce. Those who are truly trying to obtain a visa by fraud will simply stay together for two years under immigration’s radar before leaving the relationship. While the intention is admirable, it is hard to see how it will genuinely stop people for entering marriages of convenience when that is the fastest and only route for a particular person to obtain permanent residence.

Looking forward, there will no doubt be inadmissibility hearings starting in 2015 regarding these types of violations. It will interesting to see how strict the Immigration Division will be when it comes to assessing that a genuine relationship did or did not exist and the grounds for removal.

Attorney Henry Moyal is a certified and licensed immigration lawyer in Toronto, Ontario.The above article is general advice only and is not intended to act as a legal document.Send questions to Attorney Moyal by email canada@moyal.com or call 416 733 3193