Thursday, November 1, 2012

Till marriage fraud do us part: More changes to Canada's immigration rules


NOVEMBER 1, 2012


Fresh off efforts cracking down on "bogus refugees," Immigration Minister Jason Kenney turned his eye to "bogus unions," declaring on October 25, 2012 that the jig on marriage fraud is over. 
For several years now the Conservative majority has deemed marriage fraud a serious threat -- one that has steadily moved from calamity to catastrophe, attacking the very integrity of our immigration system. 
In response to this perceived crisis, Citizenship and Immigration (CIC) has made amendments to the Immigration and Refugee Protection Regulations, introducing a probationary period for sponsored partners (akin to Australia, the U.S. and the UK).
These amendments -- which are an expensive endeavor implemented on the basis of minimal and unconvincing evidence -- threaten to open up a new front; one that will disproportionately impact and expose sponsored partners to abuse and violence.
Historically, under the Immigration and Refugee Protection Act (IRPA), Canadians enjoy the right to sponsor and bring to Canada foreign spouses, common law and conjugal partners. Even though processing times for spousal visas have continuously increased (due to global politics and bureaucratic inefficiencies), prior to this year once a marriage application was deemed legitimate the sponsored partner would receive permanent residence upon arrival at a Canadian airport. There would be no further requirements.
But as of October 25 a sponsored partner, who has been in a relationship of two years or less and has no children in common with their sponsor, will be required to live with the sponsor in a legitimate marriage for a probationary period of two years. 
Failure to do so could result in revocation of the sponsored partner's PR status and the possibility of criminal charges and deportation. A further criticism is that making it past the two-year mark would not eliminate the threat of removal, as CIC would still have power to instigate removal proceedings if it believed a person had previously breached the condition.

The question then becomes: just how dire is the threat of marriage fraud in Canada? The evidence remains unimpressively and unacceptably unclear.
Surely, abuses to the spousal visa system are a reality. A 2010 CBC documentary estimated that over a thousand cases are reported by victims of marriage fraud. This necessarily means offering protection to Canadian citizens and permanent residents who face exploitation by foreign nationals seeking a quick and relatively easy route into Canada.
But the reality is that the little evidence available doesn't support the doomsayers, and certainly doesn't warrant wholesale changes to the immigration system.
Of the 46,300 immigration applications processed in 2010, 84 per cent were approved and 16 per cent were refused. The Canada Gazette reports that "most" of the applications rejected were done so on the basis of them being fraudulent relationships. "Most" is simply not convincing. And it is very well possible that of the 84 per cent deemed legitimate some were in fact a sham, and a great number of the rejected were in fact genuine. 
Along with a lack of evidence the government admits that the quantitative costs of a new system greatly exceed any benefit. Estimates indicate that the first decade of the program will cost $11 million. The benefits -- stemming from a reduction in fraudulent applications -- will largely lag behind at a measly $5.5 million. 
Acknowledging this financial imbalance, the government has asked Canadians to keep in mind the qualitative benefits. Eleven million dollars is the price to pay for a shinier, oiled and greased new immigration apparatus, one that is not seen as a "soft target" by fraudsters.
These costs become more difficult to justify when taking into account the fact that Canada's visa offices abroad are well equipped as is, and already spend considerable time and resources in screening relationships. Additionally, existing Canadian law already has provisions in place to (sometimes criminally) charge immigrants for application misrepresentation. 
Others have criticized the new law as just another way of reducing the number of family-class immigrations. In the 1980s half of the total migration into Canada was under this class. Where it was once half the number of incoming immigrants, the family-class category now makes up hardly a quarter. And even though, on paper, family reunification remains a core objective of the IRPA, statistics tell a different story. 
Family-class immigrants have come to be seen as burdensome, unskilled and less well-off category of new arrivals. The recent amendments would only exacerbate the situation by adding suspicion to an already messy brew of biases. 
The changes -- implemented after two years of information gathering, which included a national online questionnaire and town hall meetings held by Kenney -- risk yet another storm of vituperation. 
While the government has been busy painting portraits of an immigration system torn apart by rampant abuse, they seem to have missed the individual position of suffering and injustice. Conditional permanent residence and its accompanying threat of deportation and criminal charges will profoundly impact the power dynamics in a relationship between the sponsor and sponsored.
According to the Canadian Council for Refugees, abused partners -- often women -- are further victimized by the amendments, which also negatively impact children facing separation from parents exposed to deportation proceedings. Essentially, the new law wholly places power in the hands of the sponsor, who can use the probationary period as a tool for manipulation.
While the Regulations exempt victims of abuse and neglect, the abused partner still faces several obstacles; these include shouldering the burden of proof of abuse, information and language barriers, and paying for providing evidence of abuse and cohabitation.
There is simply no evidence a probationary period will deter marriage fraud. Sadly, the recent trend in Canada's immigration policies has left our nation as a shimmering shadow of its once best self. And in addressing this troubling phenomenon, neither complacency nor panic were the right response. Substantiated evidence, proportionality and evenness were dispensed with when these changes were made. 
Now, in the words of Kenney, it remains to be seen "in the barrel, how many bad apples [really] are there."

Maria Kari is a writer and law student from Vancouver, B.C. Follow her on Twitter: @mariakari1414.

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