Comments on proposed change to Immigration regulations with respect to proposed “conditional permanent residence” for sponsored spouses
Published by Citizenship and Immigration Canada in Canada Gazette, Part I, Vol. 146, No. 10 - March 10, 2012
Ontario Council of Agencies Serving Immigrants (OCASI)
April 7, 2012
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Introduction
The Ontario Council of Agencies Serving Immigrants (OCASI) submits these comments with respect to the March 10, 2012 notice in the Canada Gazette by Citizenship and Immigration Canada (CIC) to introduce a period of “conditional” permanent residence of two years for sponsored spouses and partners who have been in a relationship of two years or less with their sponsors.
OCASI had encouraged withdrawal of the proposal when it was first introduced by Notice in Canada Gazette Part I, Vol. 145, No. 13 on 26 March 2011, and expressed concern that the conditional measure could increase the vulnerability of sponsored spouses and partners to domestic violence.
The new Gazette Notice of March 10, 2012 acknowledges that similar concerns were expressed in the responses to the previous notice. CIC proposes to address these concerns by exempting sponsored spouses from the conditional measure where there is evidence of abuse or neglect by the sponsor, or a failure by the sponsor to protect from abuse or neglect. CIC proposes also to develop guidelines to assist officers in the processing of such cases.
OCASI remains gravely concerned that despite these proposed changes, sponsored spouses and partners and their children would be made vulnerable to abuse by their sponsors.
The proposed measure is intended as a deterrent to ‘marriage fraud'. CIC concedes in the Gazette notice that the majority of sponsored spouses and partners are in a genuine relationship and that no figures exist on ‘relationships of convenience'. Given the lack of evidence, OCASI is not convinced that implementing a measure that would severely reduce equality rights and unfairly punish all sponsored spouses and partners is warranted.
According to the Gazette Notice, 16% of applications are refused and CIC estimates that most were refused on the basis of a fraudulent relationship. CIC already has in place a rigorous pre-screening process for applicants. Further, existing legislation includes provisions to deal with misrepresentation in an immigration application. Given these factors as well as the lack of evidence mentioned earlier, the proposed measure appears to be punitive rather than preventative. OCASI firmly believes that introducing “conditional permanent residence” would increase inequalities in relationships between spouses, and would put women in particular at heightened risk of violence.
The following are some of OCASI's main concerns with the proposal:
a) Making permanent residency for the sponsored partner conditional puts all the power into the hands of the sponsor, who can use the precarity of the partner's status as a tool for manipulation – at any time, the sponsor can declare the spouse fraudulent. This can be a constant threat and source of fear for the sponsored person, who faces the risk of being deported. The power imbalance can also put the sponsor's family members in a position of greater power in relation to the sponsored spouse or partner. The power imbalance can create a risk of malicious denunciations by the sponsor, or the sponsor's extended family and friends.
b) This power imbalance affects all sponsored partners, regardless of the “genuineness” of relationship, and reinforces unequal gendered power dynamics. It can have a negative impact on the relationship between the sponsor and spouse or partner. Making permanent residency conditional on staying in the marriage for two years traps women in abusive relationships for fear of losing their status. OCASI believes that the exemption provided for grounds of abuse or neglect would not be effective for many reasons. Sponsored immigrants, including sponsored spouses and partners are often unaware of their rights or avenues for assistance. The sponsor is often the sole or main source of information. The exemption places a burden of proof on the sponsored spouse or partner. It would be difficult for a recent immigrant in a situation of abuse or neglect to put together and present the evidence required by the immigration officer, assuming the she is aware of the exemption. Other factors such as lack of fluency in English or French would have an impact on access to information and assistance.
c) Children will also be hurt, for example when they remain with their parent in an abusive home, or if they face being separated from one parent if the sponsored parent is removed from Canada. These situations can occur despite the exemption for reasons mentioned above.
d) The suggestion that some cases would be “targeted for fraud” raises fears of possible racial, national or ethnic stereotyping and discrimination, and of malicious denunciations.
The Gazette notice mentions that similar policies are already in place in the UK, Australia and the U.S. Experts in those countries have reported that conditional status creates the problems mentioned above, putting women at risk and giving increased power to abusive sponsors. Groups such as the Australia Immigrant and Refugee Women's Alliance and Southall Black Sisters in the UK have observed the negative impact of similar provisions in those countries on immigrant women.
Given the lack of evidence that “marriage fraud” is a widespread problem, it is unfortunate that the government is exploring this proposal, which would create another barrier to family reunification.
OCASI is also concerned that characterizing all relationship breakdown as marriage fraud adds to the increasingly negative portrayal by the government of newcomers, and thus increases xenophobic tendencies within society.
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Click here for the March 10, 2012 Canada Gazette Notice
Click here for the March 26, 2011 Canada Gazette Notice
Click here for information on this issue from the Canadian Council for Refugees
Click here for joint submission by ethno-specific legal clinics in Ontario