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Proposed New Restrictions on Spousal Sponsorships: The Benefits and Drawbacks

In recent months, all signs indicate that the government plans to move ahead with its plans to curb “relationships of convenience” by placing further restrictions on spousal sponsorships. The new plan would create a two-year conditional status for couples that have been in a relationship for less than two years at the time of their application. A second restriction would prevent anyone admitted to Canada as a spouse under the sponsorship program from sponsoring a subsequent spouse or partner until five years have passed.

Although the logic behind such changes is understandable and commendable, these new measures will also have negative effects on legitimate applicants, and may have some unintended consequences.

Canadian Citizenship and Immigration data indicates that approximately 45-50 000 applications for spousal sponsorship are received each year, 15-20% of which are refused. Many applications are refused based on evidence indicating that the relationship was not genuine. Although immigration officials would ideally like to be able to detect fraudulent relationships before the sponsored spouse is landed in Canada, it can be difficult to identify and provide substantive evidence against suspected couples. The immigration office processing the application may not have the resources to properly investigate whether the relationship is genuine, or applicants may be “coached” in advance about how to avoid detection by immigration officials.

The rationale behind the two-year requirement is to provide another level of protection that immigration officials can pursue if the relationship becomes suspect once the sponsored party has arrived in Canada. However, it would make more sense to direct financial and human resources toward addressing the problem before the individual arrives in Canada. Initiating removal proceedings once the sponsored party arrives in the country is not only difficult but also expensive.

Although many legitimate couples will likely view the two year conditional requirement as another hurdle in an already cumbersome process, the measure will have few effects on couples who remain happily together throughout the two-year period. However, problems may arise in situations where a genuine relationship breaks down. The sponsored spouse may feel compelled to stay in an unhappy relationship in order to prevent their permanent resident status from being jeopardized.

Measures to protect victims of domestic violence will be implemented as an exception to the rule in order to allow victims to separate from their spouses without penalty. However, this policy would still remain open to abuse by spouses who could make false accusations in order to take advantage of the exception.

The new measures also provide a new level of protection for Canadian sponsors, who may be unwittingly duped by their foreign partner. It is estimated that one quarter of Canadians now engage in online dating, which allows relationships to be formed from anywhere around the world. Although many genuine and long-lasting relationships are formed online, it also provides an easy avenue for fraudsters to take advantage of unsuspecting Canadians who believe their online partners are in love with them. The relationship can end with more than just hurt feelings as the sponsor is financially responsible for their fraudulent partner for three years from their date of landing.

The five-year restriction on sponsoring a new spouse will provide some deterrence against fraudulent claims, particularly for those luring the Canadian sponsor into a “love triangle” situation where the sponsored spouse may already have a partner abroad. However, for marriages and partnerships that break down for legitimate reasons, five years can be a long time to wait before sponsoring another spouse.

Obviously, some flexibility will be required within the legislation to address legitimate concerns that may arise upon the breakdown of relationships. Perhaps the legislation could allow for a “compassionate considerations” loophole where the two-year or five-year requirements could be waived in certain circumstances. Although this exception would have to be exercised sparingly to prevent abuse, it would assuage concerns about the changes being too harsh in certain cases.

Although investing in better detection measures before the sponsored party arrives in Canada is the ideal solution for preventing relationships of convenience, these new measures provide an additional avenue for immigration officials to pursue fraudulent relationships. The changes also provide Canadian sponsors with an additional measure of protection if their sponsored partner turns out to be a fraud. If judiciously enforced, the legislation could be a win-win for both the Canadian government and genuine family reunification applicants.

Recently, Immigration Minister Jason Kenney recently mused about making changes to Canadian citizenship law. The changes would be geared toward preventing exploitation of the system by opportunistic parents hoping to give their children a leg up by giving birth to them in Canada. Although many foreign nationals give birth in Canada for legitimate reasons, there has been a rise in the amount of “anchor babies” who are born in Canada simply to take advantage of the privileges that a Canadian passport can offer later in life.

The practice involves foreign nationals entering Canada in the latter stages of their pregnancies and then delivering in a Canadian hospital.

All babies born on Canadian soil are automatically granted Canadian citizenship, leaving the country vulnerable to this type of exploitation. The motives behind this practice are clear: a Canadian passport will increase education and employment opportunities later in life, provide access to generous health and social programs, and facilitate international mobility. Bearing a child holding Canadian citizenship also increases the likelihood that family members will eventually be able to immigrate to Canada via sponsorship and family reunification programs.

Allowing anchor babies automatic citizenship is problematic. It is unfair to all other categories of immigrants who are following the rules and waiting for their applications to be processed.

Heightened pre-screening practices abroad for those applying for visas could help curb the “anchor babies” practice. In addition, conferring some type of temporary or conditional status with a residency requirement on babies born to foreign parents before citizenship can be conferred may also help to distinguish valid and invalid claims.

Canadian immigration policy must seek the right balance between remaining an inviting and generous nation for legitimate immigrants while preventing exploitation by those seeking to exploit our citizenship laws.

Effective December 1, 2010 applicants will need to demonstrate a personal net worth of CAD$1.6 million and invest CAD$800,00 for 62 months. The program enables qualified applicants to obtain permanent resident status in Canada with a guaranteed repayment of their initial investment.

Eligibility for the program requires 2 years of demonstrated business experience as follows:

• Managed a qualifying business and controlled a percentage of equity of the qualifying business for at least 2 years in the period beginning 5 years before the date of the application
  OR
• Managed the equivalent of at least 5 full-time employees per year in a business for at least 2 years in the period beginning 5 years before the date of the application
  OR
• A combination of 1 year of experience described in the first point and 1 year of experience described in the second point above.

Immigrant investors need to obtain a minimum of 35 points using a selection criteria that assesses 5 categories:

Immigrant investors and their family members are required to pass a medical examination as well as security and criminal record checks.

A successful applicant must satisfy a Canadian visa officer that their assets as well as the assets of their spouse or common law partner were legally obtained. Additionally, applicants need to demonstrate that after depositing their guaranteed immigrant investment with Citizenship and Immigration Canada they will still have enough money to support themselves and their dependents in Canada.