Effective October 25, 2012, all sponsorship of
foreign national spouses are subject to the “two year rule.” This rule
means that a spouse sponsored into Canada will be granted a conditional
landing in Canada for two years. Provided the couple remains living
together in a conjugal relationship as spouses for two years after the
initial grant of permanent residency, the conditional landing becomes
permanent. In assessing whether or not the newly arrived spouse is
living in a conjugal relationship for the two years, immigration
officers may conduct spot checks of the living arrangements of the
couple. In these spots checks, called “random assessments” in the new
Regulations, they will consider a number of factors, including their
sexual behavior, sleeping arrangements, dinner habits, financial
circumstances and attitude towards children.
These considerations and other very personal queries are aimed at determining whether or not a “conjugal relationship” exits and whether it exists under the same roof. The onus to demonstrate compliance with these intrusive issues is on the non citizen spouse. This means that the person under review may have to provide information on his or her sex life, and other issues, to satisfy an immigration officer that the sponsor and spouse are genuinely living together as a couple.
If an immigration officer decides she is not satisfied that the conditions are met, she would then render a determination that the non citizen is not a permanent resident, and presumably write them up under s. 44 as not being in compliance with the law and issue an exclusion order, compelling them to leave Canada without being able to return for a period of 1 year.
These are harsh, serious measures which are aimed at catching fraudulent marriages and deterring others from committing the same.
As a safety measure against forcing persons in abusive relationships from remaining in unhealthy situations, the two year rule is subject to exceptions for those who are being subjected to physical, sexual, psychological or financial abuse and/or neglect. Neglect is defined in the regulations as the failure to provide the necessaries of life, such as food, clothing, medical care or shelter, and any other omission that results in a risk of serious harm. This is an important protection to ensure that a person is not trapped inside a potentially dangerous situation, believing themselves unable to escape without losing permanent residency in Canada. A similar policy of protection has been recognized in Canada’ humanitarian and compassionate grounds program and guidelines.
These considerations and other very personal queries are aimed at determining whether or not a “conjugal relationship” exits and whether it exists under the same roof. The onus to demonstrate compliance with these intrusive issues is on the non citizen spouse. This means that the person under review may have to provide information on his or her sex life, and other issues, to satisfy an immigration officer that the sponsor and spouse are genuinely living together as a couple.
If an immigration officer decides she is not satisfied that the conditions are met, she would then render a determination that the non citizen is not a permanent resident, and presumably write them up under s. 44 as not being in compliance with the law and issue an exclusion order, compelling them to leave Canada without being able to return for a period of 1 year.
These are harsh, serious measures which are aimed at catching fraudulent marriages and deterring others from committing the same.
As a safety measure against forcing persons in abusive relationships from remaining in unhealthy situations, the two year rule is subject to exceptions for those who are being subjected to physical, sexual, psychological or financial abuse and/or neglect. Neglect is defined in the regulations as the failure to provide the necessaries of life, such as food, clothing, medical care or shelter, and any other omission that results in a risk of serious harm. This is an important protection to ensure that a person is not trapped inside a potentially dangerous situation, believing themselves unable to escape without losing permanent residency in Canada. A similar policy of protection has been recognized in Canada’ humanitarian and compassionate grounds program and guidelines.
However, the law is flawed in a number of
ways. Primarily, there is no recognition or exception made for persons
who find themselves in relationships which though not abusive, are
intolerable for any number of personal reasons including non
compatibility and/ or infidelity. Under the conditional permanent
residency, a spouse who has discovered their partner’s infidelity or who
simply cannot get along with their partner is compelled to remain in
the relationship for 2 full years, without any means of extraction,
without losing permanent residency. This would even include a spouse who
has conceived a child in the two year period and who has clearly
entered into the relationship in good faith, believing when he or she
applied for permanent residency in Canada that they were entering into a
conjugal relationship of permanence.
The new enactment allows no discretion for
an officer to factor in basic human frailties or errors in judgment
into an assessment of who does and does not deserve to retain permanent
residency. For a non citizen spouse in Canada on condition who has a
child within the two years, but who then is left by their sponsoring
partner for compatibility issues, this means being forced to leave
Canada and possibly taking their child with them. In addition to the
loss of support from the sponsoring spouse, the separation of the child
from one of his or her parents would also result. Depending on the
distance of the spouse’s home country from Canada, this conceivably has
very serious consequences on the development of that child.
The new law is simply too harsh, not
flexible enough and too intrusive. It will create animosity amongst
those new immigrant spouses subjected to embarrassing and intrusive
questioning and may compel others, who genuinely and in good faith came
to Canada as a spouse, to leave without having engaged in any wrongful
behavior. The law has potential for being cruel and intolerant. It must
be repealed to allow for more flexibility.
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