‘Tough on crime’ agenda provides new hurdle for spousal sponsorship

Whenever governments want to be seen as “tough on crime,” they pass legislation that offers a simple solution to a complex problem.

The Tories are no exception.

The problem? Bogus spousal sponsorships by some.

The solution? A five-year sponsorship ban for all.

Each year, about 40,000 to 45,000 Canadians successfully sponsor their foreign spouses, common law partners and conjugal partners to Canada. Each case is examined carefully by Citizenship and Immigration Canada (CIC) to ensure that the relationship is genuine and and not fabricated for immigration purposes.

No doubt, in spite of all the interviews, field investigations, and background checks that are conducted, a small percentage (no one knows exactly what it is) gets through fraudulently. Virtually every country faces these challenges.

The current law is very clear — if an applicant is discovered to be misrepresenting his/her relationship, their application will be refused and they can face a two-year bar to any entry to Canada. Furthermore, both the sponsor and the applicant can be charged with misrepresentation and fined up to $100,000 and imprisoned for as many as five years.

You would think that this arms our immigration officials with sufficient power to deter and punish marriage fraudsters. But, apparently, this is not “tough” enough. The Tories would like to be seen doing even more.

The solution that was dropped into place by Immigration Minister Jason Kenney last week will prevent all Canadian citizens and permanent residents who were sponsored here by a spouse, common law partner or conjugal partner from, in turn, sponsoring another spouse for five years.

The Tories are labelling these legislative changes as a ban on marriage fraud. However, the problem with this ban is that it will apply to even those who did not commit marriage fraud.

For example, if a Canadian sponsor dies shortly after his sponsored wife is granted permanent residence, his widow cannot sponsor a new spouse for five years because of this new ban.

As another example, if the Canadian spouse is abusive of his wife after she arrives in Canada as a permanent resident, the abused woman cannot divorce and sponsor a new partner for five years after her arrival.

Finally, if the wife arrives in Canada and later discovers that her Canadian husband was unfaithful to her while she was being sponsored or after she arrived, she can leave him but won’t be able to sponsor a new partner for five years after being granted permanent residence here.

What these three simple, and not uncommon, examples show is that the innocent will undoubtedly be made to suffer under this new regime.

Our current legislation exposes both the sponsor and the applicant to heavy fines and lengthy jail terms if they are involved in a misrepresentation connected to marriage fraud. At present, innocent parties need not worry.

These new measures will surely cause a lot of collateral damage to those who are not involved in marriage fraud in any way.

Kenney has not explained why his new ban is better than the measures we already have in place, which allow for the prosecution of those who would take advantage of our spousal sponsorship rules while leaving the innocent unscathed.

Either a re-think or an explanation is in order.

Guidy Mamann, J.D. practises law in Toronto at Mamann, Sandaluk & Kingwell and is certified by the Law Society of Upper Canada as an immigration specialist. For more information, visit www.migrationlaw.com or email metro@migrationlaw.com.




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