Section 87.4 of IRPA purports to retoractively close outstanding skilled worker applications filed before 2008 and not considered on their merits before March 2012. However, there may be two exceptions, one in the Act and one not. The first is for cases which have been sent back by judicial order. Section 87.4(2) says: Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.
Although suprior court is not defined, and does not usually include the Federal Court, the only court with jurisdiction to render final determinations on such applications is the Federal Court. As such, cases sent back by Federal Court order before March 2012, will be exempt from the application of s. 87.4. In other words, they will remain open and must be processed.
The other exception may be cases in which an exemption under s. 25 for humanitarian reasons was requested with the skilled worker application. Technically, s. 25 applications are not caught by s. 87.4 and should not be closed. I have clients in this situation. This issue may have to be resolved through judicial review.
Tuesday, 2 July 2013
Thursday, 20 June 2013
Supreme Court decision in Agraira v. MPSEP
Released today, June 20, 2013, the Supreme Court of Canada decision on the Minister's powers under s. 34(2) of IRPA, upholds a broad Ministerial discretion. Section 34(2) allows the Minister to decide that a person otherwise inadmissible to Canada on security grounds is admissible if their presence in Canada would not be detrimental to national security. Guidelines had been published by Canada Immigration listing a number of factors to consider in assessing an application for s. 34(2) relief. In Agraira, the Minister had not referred to many of the factors listed in the guidelines, and also failed to define the term national interest. The Minister based his decision solely on issues of public safety and national interest. The Federal Court of Appeal upheld this approach, noting that the guidelines, including references to humanitarian factors, could be ignored.
The SCC has now held that although a s. 34(2) determination is not concerned only with public safety and national interest, and that factors such as the objectives of IRPA, the Charter, democratic values and the guideline factors listing personal circumstances of the appellant are also important, it may be assumed that the Minister considered these factors. Applying a principle called "implied interpretation" the Court assumed that the Minister had considered all of the appropriate factors and had applied the correct definition to national interest, even though no where in his reasons did he articulate many of the applicable principles listed as relevant by the Court.
The SCC has now held that although a s. 34(2) determination is not concerned only with public safety and national interest, and that factors such as the objectives of IRPA, the Charter, democratic values and the guideline factors listing personal circumstances of the appellant are also important, it may be assumed that the Minister considered these factors. Applying a principle called "implied interpretation" the Court assumed that the Minister had considered all of the appropriate factors and had applied the correct definition to national interest, even though no where in his reasons did he articulate many of the applicable principles listed as relevant by the Court.
Wednesday, 19 June 2013
Refugee Sur Place
The Refugee Board and Federal Court are deeply divided on the issue of whether those aboard the Ocean Lady and Sun Sea are refugees or not. The issue is this: because of allegations made by the Canadian government and publicized in local news outlets that passengers of these ships had links to the Tamil Tigers, are all of the passengers at risk of detention, questioning and possibly torture upon return to Sri Lanka. In other words, are they refugees sur place. In a recent decision by Justice Harrington in MCI v. A011, he overturned a decision of the refugee board on the technical ground that these passengers, whether at risk or not, were not part of a particular social group - as that term is defined in section 96 of IRPA. The issue is important because if section 96 applies, the standard to be applied in serious reasons. If not, and s. 97 applies, it is balance of probabilities - a much higher legal burden for an applicant. A particular social group is a group with immutable characteristics which are fundamental to human dignity. In the case of the passengers of the Ocean Lady and Sun Sea, the Court held that their common desire to come to Canada had little to do with fundamental human dignity. They were therefore not part of a particular social group and so the decision was overturned.
The issue is one of imputed political opinion, in my view, not social group. Section 96 should certainly apply.
The issue is one of imputed political opinion, in my view, not social group. Section 96 should certainly apply.
Monday, 17 June 2013
Lie detector tests are admissible in immigration board proceedings in Canada.
The Supreme Court of Canada has decided, in the criminal law context, that these test findings usurp the role of the trier of fact where judges preside and so are not admissible in courts. However, they have not been found to be unreliable. Given that the rules of evidence applicable to courts do not apply to immigration boards, a report of a lie detector test can be admitted into evidence before a board. The weight to be apportioned this evidence is up to the board member. I recently used the results of such a test to assist in exonerating my client who was accused of misrepresenting the bona fides of his marriage. The client faced the possibility of having his permanent residency revoked and being deported from Canada. However, the Immigration Division decided that the Minister had not met its burden of demonstrating the misrepresentation. The use of the lie detector test report was invaluable in helping us win.
Thursday, 13 June 2013
Learn more about new immigration rules
Immigration information forum to be held at 30 Thorncliffe Park Drive (at Overlea Blvd.) with Ronald Poulton and Craig Scott, MPP for Toronto - Danforthhttp://craigscott.ndp.ca/node/569004.
Immigration Regulations to be amended to require fee for LMOs and onus on employer to demonstrate plan to transition to Canadian workers. Amendments are unnecessary overkill. At present, LMOs are only granted if no qualified persons in Canada can perform the work. Work permits are temporary and limited to 4 years. Requiring employer to transition to Canadian workers means creating training programs that employers may not be able to afford and may undermine the Canada Experience Class program.
Sunday, 9 June 2013
Ronald Poulton
Ronald Poulton is considered one of Canada’s
leading immigration lawyers. He has acted as counsel at the Supreme
Court of Canada, Federal and Ontario Courts of Appeal and Federal Court
Trial Division in some of the most prominent cases in Canadian
immigration law. He has lectured in immigration law, testified before a
Parliamentary Committee on Immigration issues and before an
international human rights
HUMANITARIAN AND COMPASSIONATE GROUNDS
Applicants who do not qualify for any category or program and who are otherwise inadmissible
to Canada can seek permanent residency in Canada through humanitarian and compassionate
grounds. The factors considered in such an application include; time in Canada, work history,
family in Canada, hardship in home country, best interests of any children, volunteer work in Canada and other associations to the community. Although no time period in Canada is
determinative, an application for a person who has lived in Canada for less than 5 years would not be considered a strong application. Humanitarian decisions are highly discretionary and can also factor in the applicant’s conduct and observance of the law while in Canada. Humanitarian
applications may take several years to be decided. During this time period, an
applicant is not eligible for a work permit or other status document.
FEDERAL SKILLED TRADES
A number of trades are now recognized for permanent residency in Canada. Professions such as welders, plumbers, electricians, carpenters and 39 other trades are included in the list of eligible jobs. In order to qualify, the applicant must have at least 2 years of full time work experience in their trade within the last 5 years, meet all the job requirements of the trade and have either an offer of employment from a Canadian company or a certificate of trade issued by a provincial or territorial body.
Full time work is defined as at least 30 hours of work over 1 week or an equal amount in part time. Language testing is required and a cap of 3000 applications per year has been set.
CANADA EXPERIENCE CLASS
CANADA EXPERIENCE CLASS
An applicant who has worked full time in Canada for 12 months in the three years preceding the filing of the CEC application, is eligible for permanent residency in Canada as a member of the Canada Experience Class. Full time work is defined as a minimum of 30 hours per week or the equivalent in part time work. The work performed must fall within one of three categories: managerial jobs (NOC skill type 0), professional jobs (NOC skill type A), technical jobs and skilled trades (NOC skill type B).
In addition, candidates must prove their ability in English or French in these four areas:
• speaking,
• reading,
• listening, and
• writing.
Jobs in the A and O categories will require a higher language score of CLB 7, whereas NOC B level jobs require CLB 5.
An applicant who has worked full time in Canada for 12 months in the three years preceding the filing of the CEC application, is eligible for permanent residency in Canada as a member of the Canada Experience Class. Full time work is defined as a minimum of 30 hours per week or the equivalent in part time work. The work performed must fall within one of three categories: managerial jobs (NOC skill type 0), professional jobs (NOC skill type A), technical jobs and skilled trades (NOC skill type B).
In addition, candidates must prove their ability in English or French in these four areas:
• speaking,
• reading,
• listening, and
• writing.
Jobs in the A and O categories will require a higher language score of CLB 7, whereas NOC B level jobs require CLB 5.
Sponsorship into Canada
Canada has a long history of family reunification. Permanent Residents and Citizens have been able to sponsor certain members of their family to come and live in Canada. Those members have included spouses, dependent children, parents and grandparents. In November 2011 Canada Immigration placed a 24 month temporary “pause” on all applications to sponsor parents and grandparents. On May 10 of this year CIC announced that applications will be accepted for the new Parent and Grandparent program on January 2, 2014. This new program differs significantly from the old. Changes to the program include:
WORK PERMITS
Persons from countries which have entered into international experience bilateral agreements with Canada will be issued work permits for limited durations under one of three possible programs: worker holiday, young professional, or international co-op student. The duration and requirements for each category vary from country to country. For citizens of Greece, an open work permit will be issued to any applicant aged 18 to 35 for a duration of 1 year per program.
How to get workers from the United States with criminal records into Canada in a hurry in fulfillment of a contract with a Canadian company?
If the criminal record is limited to one, or in some
cases, two “minor criminal” offenses, then border officers of CBSA have
the jurisdiction to issue temporary resident permits in conjunction
with work permits to nationals of visa exempt countries. A minor
criminal offence is defined under section 36(2) of the Immigration and
Refugee Protection Act to include a conviction outside Canada that, if
committed in Canada, would constitute an indictable offence, or of two
offences not arising out of a single occurrence that, if committed in
Canada would constitute summary offences. Impaired driving, or Driving
Under the Influence (DUI), as it is called in most US states, falls
within the category of minor criminal offence and as such can be
temporarily “cured” by the issuance of a TRP at a border crossing.
Recently, we assisted a number of US steel
workers in obtaining work permits into Canada and, for three of the
workers, Temporary Resident Permits. The work permits were based on
labour market opinions obtained without the need to advertise for the
positions. The workers fell within a category of highly specialized
technicians, having proprietary knowledge, experience and tools to
perform the work and to oversee Canadians doing the work. Given the
specialized nature of their work, no advertising or recruitment was
required.
In addition, a very tight time table
existed for the commencement of the project in Canada. As such, the
application for the labour market opinions (LMOs) were expedited and
obtained in under seven business days. The work permits and TRPs were
issued at the Canada / US border in under an hour.
In the case of one of the US workers,
although he had a criminal record, he qualified for rehabilitation as it
had been over 5 years since his last conviction. A TRP was issued to
allow him into Canada, but he was required to undertake to file a
rehabilitation application within 30 days. Given the closing of the
Canadian visa office in Buffalo, these applications can be submitted at
the Windsor CBSA office on the Canada/US border. It takes approximately
two months for a decision.
Should I Stay or Should I Go?
Proposed new changes to the discretion of removal officers appear at
first glance to eliminate the possibility of discretionary deferrals and
Federal Court stays of decisions not to defer. But do they?
The present s. 48 of the Immigration and Refugee Protection Act, (similar to its predecessor under the Immigration Act) refers to removals being executed as soon as “reasonably practicable”. The amendment to section 48, not yet enacted, takes out this phrase and replaces it with “as soon as possible.”
Does this change limit the officer’s discretion to defer removals? I don’t think so. Here is why.
The Federal Court, in a number of cases, found that removal officers do have the jurisdiction to delay removal. In Poyanipur v. Canada the applicant had applied for landing on humanitarian grounds in September 1995 but in October he was called in for removal. The applicant asked that removal be deferred as his humanitarian application remained outstanding.
The removal officer held that he had no discretion not to remove and further that he was instructed to remove as quickly as possible. A date for removal was set and a stay was filed in the Federal Court.
Looking at the phrase “ reasonably practicable”, Simpson, J. found that removal officers do have the discretion to defer. She found that the term “reasonably practicable” covers a broad range of circumstances, including a consideration of whether it would be reasonable to await a pending decision on an H & C. She found that “reasonably practicable” is not the same as “as quickly as possible” and found that the officer had erred in applying the latter test.
Although a removal officer’s discretion not to remove is limited there are a number of factors that he can consider in exercising this discretion including the timely filing of an H & C; exigent personal circumstance, particularly those affecting the best interests of children; medical issues; and new evidence of risk not yet considered.
In using the phrase “as soon as possible”, has parliament removed a removal officer’s discretion to consider these factors? The Provincial appellate courts throughout Canada have interpreted the phrase “as soon as possible” in a variety of contexts and they all agree on its meaning. In Wooldridge v. Woodridge the Alberta Court of Appeal states:
The meaning of the phrase “as soon as possible” has been interpreted in a variety of situations, but the result has been remarkably consistent. Essentially, these words should be read broadly to mean as soon as reasonably possible having regard to all the relevant factors and circumstances….
Parliament has replaced “reasonably practicable” with “reasonably possible” which inherently includes an assessment of all the relevant factors and circumstances. In the end, then, the law has not been altered. In my view, the discretion to defer removal and the concurrent power to review that discretion, have remained unchanged.
The present s. 48 of the Immigration and Refugee Protection Act, (similar to its predecessor under the Immigration Act) refers to removals being executed as soon as “reasonably practicable”. The amendment to section 48, not yet enacted, takes out this phrase and replaces it with “as soon as possible.”
Does this change limit the officer’s discretion to defer removals? I don’t think so. Here is why.
The Federal Court, in a number of cases, found that removal officers do have the jurisdiction to delay removal. In Poyanipur v. Canada the applicant had applied for landing on humanitarian grounds in September 1995 but in October he was called in for removal. The applicant asked that removal be deferred as his humanitarian application remained outstanding.
The removal officer held that he had no discretion not to remove and further that he was instructed to remove as quickly as possible. A date for removal was set and a stay was filed in the Federal Court.
Looking at the phrase “ reasonably practicable”, Simpson, J. found that removal officers do have the discretion to defer. She found that the term “reasonably practicable” covers a broad range of circumstances, including a consideration of whether it would be reasonable to await a pending decision on an H & C. She found that “reasonably practicable” is not the same as “as quickly as possible” and found that the officer had erred in applying the latter test.
Although a removal officer’s discretion not to remove is limited there are a number of factors that he can consider in exercising this discretion including the timely filing of an H & C; exigent personal circumstance, particularly those affecting the best interests of children; medical issues; and new evidence of risk not yet considered.
In using the phrase “as soon as possible”, has parliament removed a removal officer’s discretion to consider these factors? The Provincial appellate courts throughout Canada have interpreted the phrase “as soon as possible” in a variety of contexts and they all agree on its meaning. In Wooldridge v. Woodridge the Alberta Court of Appeal states:
The meaning of the phrase “as soon as possible” has been interpreted in a variety of situations, but the result has been remarkably consistent. Essentially, these words should be read broadly to mean as soon as reasonably possible having regard to all the relevant factors and circumstances….
Parliament has replaced “reasonably practicable” with “reasonably possible” which inherently includes an assessment of all the relevant factors and circumstances. In the end, then, the law has not been altered. In my view, the discretion to defer removal and the concurrent power to review that discretion, have remained unchanged.
Assisted Voluntary Return: ‘The Pay to Go Scheme’
As of June 29, 2012 the Canada Border Service Agency (CBSA), in
partnership with the International Organization for Migration (IOM),
began a 3 year “pay to go” pilot program with the stated intention of
encouraging timely and voluntary returns of failed refugee claimants.
The Assisted Voluntary Return and Reintegration (AVRR) pilot programme,
currently available only in the Greater Toronto Area, is intended to
provide an alternative to enforced removal after a final negative
decision on a refugee claim. Many European countries have similar
programmes, also partnering with the IOM. The primary stated
justification for the introduction of this program is cost savings:
paying failed refugee claimants to leave voluntarily is cheaper than
enforced removals and failed claimants will spend less time in Canada
and therefore receive less in social and health benefits (although given
the already deep cuts to the health coverage for refugee claimants it
is hard to see how this initiative will result in much savings) .
The programme offers a financial incentive (in kind) to persons who have lost their refugee claims in Canada to leave voluntarily. How much a person receives depends on at what stage in the removal process the application is made:
$2,000 if before filing an Application for Leave in the Federal Court (or if an application is discontinued);
$1,500 if before submitting a Pre Removal Risk Assessment (PRRA) application ( or if an application is withdrawn);
$1000 if already received a PRRA decision.
At a joint CBSA/IOM information session held before the launch of the program officials were clear that no cash grants would be provided. The financial assistance would be solely about in-kind assistance equivalent to a defined amount and will be provided in the country of origin. However the Manual Chapter ENF 34 Assisted Voluntary Return and Reintegration Pilot Program states that a cash payment may be made in exceptional circumstances. That chapter also provides a list of the types of assistance that the IOM will provide. The list includes:
Vocational training
Legal material
Micro business loan
Professional equipment
Temporary accommodation and
housing
Training and schooling/education
Wage subsidies
Childcare
Additional luggage allowance.
Vulnerable cases and medical cases are also listed but no explanation is provided of what this means in terms of actual assistance provided by the IOM. Although promised in the summer of 2012, an IOM website describing its activities in Canada, is still under development. It is presumed that this website would provide a better explanation of the types of assistance that may be offered under this program.
The program manager for the IOM in Toronto has advised that from July 29 to October 31, 2012 a total of 500 returnees have been returned to 50 different countries. She further advised that most returnees have used their “reintegration allowance” to cover temporary accommodation on return and material assistance like basic furniture. Some have used the allowance to attend training or buy tools to start or restart small businesses.
Not everyone is eligible for this program. The defining characteristic of this program is that it is voluntary. Presumably if at any time either CBSA or the IOM has reason to believe that an applicant has reservations about returning to his or her country of origin, their application will not be able to proceed. Also, a number of categories of failed refugee claimants are ineligible to apply:
persons who have withdraw or abandoned their claims;
persons whose claims were found to have no credible basis;
persons from countries subject to
a temporary suspension of removals;
persons who failed to comply with any terms or conditions set by the Government of Canada;
persons found excluded from refugee protection pursuant to Articles 1E and F of the United Nations Convention Relating to the Status of Refugees;
persons who fail to complete a travel document application when requested to do so by CBSA;
persons who have an outstanding warrant for their arrest or removal by CBSA or any law enforcement agency;
persons who have been reported for criminality (minor or serious);
persons who have been found to be inadmissible or are reported as being inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality;
persons who have an outstanding application for permanent residence along with a spousal sponsorship application.
Files will be screened against these criteria by an Inland Enforcement Officer (IEO) when a negative refugee decision or PRRA decision is received. If it is determined that the person may be eligible for the AVRR programme they will be notified in writing of an AVRR interview. This is similar to a pre-removal interview but with the added assessment of whether the person is in fact eligible for the AVRR programme. If the person wishes to enrol in the program they will be given an AVRR application form, the contact information for the IOM and be told that they must contact the IOM within 24 hours of receiving a negative PRRA decision by the IEO or 15 days in all other cases. If the AVRR application form is not received within the time period, the file will be transferred back to the regular removal process.
Much remains unclear about this program specifically what, in concrete terms, an AVRR applicant may receive. It will only be possible to get clarity on this, in the context of any particular case, by attending an appointment with the IOM. The program has been touted as being beneficial for all involved, Canada achieves a high level of removals with reduced cost; the returnees can get assistance in creating sustainable small businesses and the communities to which they return get the benefit of increased economic activity. The experience in Europe, however, does not support these predictions. Although there are only a limited number of post return studies, they show that there is a very high failure rate among business ventures using reintegration support. It is presumed that this information will not be provided to applicants at the AVRR interview.
CBSA predicts that that this program could result in the voluntary departure of up to 6955 failed refugee claimants. As the program is set to run for 3 years this is an estimated 2300 voluntary departures per year. IOM data from 2009 however shows that out of 20 countries with similar programmes only 5 achieved numbers like this. The remaining 75% had annual returns of 1600 or less. As such CBSA’s predictions seem unreasonable.
The programme offers a financial incentive (in kind) to persons who have lost their refugee claims in Canada to leave voluntarily. How much a person receives depends on at what stage in the removal process the application is made:
$2,000 if before filing an Application for Leave in the Federal Court (or if an application is discontinued);
$1,500 if before submitting a Pre Removal Risk Assessment (PRRA) application ( or if an application is withdrawn);
$1000 if already received a PRRA decision.
At a joint CBSA/IOM information session held before the launch of the program officials were clear that no cash grants would be provided. The financial assistance would be solely about in-kind assistance equivalent to a defined amount and will be provided in the country of origin. However the Manual Chapter ENF 34 Assisted Voluntary Return and Reintegration Pilot Program states that a cash payment may be made in exceptional circumstances. That chapter also provides a list of the types of assistance that the IOM will provide. The list includes:
Vocational training
Legal material
Micro business loan
Professional equipment
Temporary accommodation and
housing
Training and schooling/education
Wage subsidies
Childcare
Additional luggage allowance.
Vulnerable cases and medical cases are also listed but no explanation is provided of what this means in terms of actual assistance provided by the IOM. Although promised in the summer of 2012, an IOM website describing its activities in Canada, is still under development. It is presumed that this website would provide a better explanation of the types of assistance that may be offered under this program.
The program manager for the IOM in Toronto has advised that from July 29 to October 31, 2012 a total of 500 returnees have been returned to 50 different countries. She further advised that most returnees have used their “reintegration allowance” to cover temporary accommodation on return and material assistance like basic furniture. Some have used the allowance to attend training or buy tools to start or restart small businesses.
Not everyone is eligible for this program. The defining characteristic of this program is that it is voluntary. Presumably if at any time either CBSA or the IOM has reason to believe that an applicant has reservations about returning to his or her country of origin, their application will not be able to proceed. Also, a number of categories of failed refugee claimants are ineligible to apply:
persons who have withdraw or abandoned their claims;
persons whose claims were found to have no credible basis;
persons from countries subject to
a temporary suspension of removals;
persons who failed to comply with any terms or conditions set by the Government of Canada;
persons found excluded from refugee protection pursuant to Articles 1E and F of the United Nations Convention Relating to the Status of Refugees;
persons who fail to complete a travel document application when requested to do so by CBSA;
persons who have an outstanding warrant for their arrest or removal by CBSA or any law enforcement agency;
persons who have been reported for criminality (minor or serious);
persons who have been found to be inadmissible or are reported as being inadmissible on security grounds, on grounds of violating human or international rights or on grounds of organized criminality;
persons who have an outstanding application for permanent residence along with a spousal sponsorship application.
Files will be screened against these criteria by an Inland Enforcement Officer (IEO) when a negative refugee decision or PRRA decision is received. If it is determined that the person may be eligible for the AVRR programme they will be notified in writing of an AVRR interview. This is similar to a pre-removal interview but with the added assessment of whether the person is in fact eligible for the AVRR programme. If the person wishes to enrol in the program they will be given an AVRR application form, the contact information for the IOM and be told that they must contact the IOM within 24 hours of receiving a negative PRRA decision by the IEO or 15 days in all other cases. If the AVRR application form is not received within the time period, the file will be transferred back to the regular removal process.
Much remains unclear about this program specifically what, in concrete terms, an AVRR applicant may receive. It will only be possible to get clarity on this, in the context of any particular case, by attending an appointment with the IOM. The program has been touted as being beneficial for all involved, Canada achieves a high level of removals with reduced cost; the returnees can get assistance in creating sustainable small businesses and the communities to which they return get the benefit of increased economic activity. The experience in Europe, however, does not support these predictions. Although there are only a limited number of post return studies, they show that there is a very high failure rate among business ventures using reintegration support. It is presumed that this information will not be provided to applicants at the AVRR interview.
CBSA predicts that that this program could result in the voluntary departure of up to 6955 failed refugee claimants. As the program is set to run for 3 years this is an estimated 2300 voluntary departures per year. IOM data from 2009 however shows that out of 20 countries with similar programmes only 5 achieved numbers like this. The remaining 75% had annual returns of 1600 or less. As such CBSA’s predictions seem unreasonable.
Sponsoring a Spouse into Canada: New Intrusions into the Privacy of Non-Citizens
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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