Vol. 144, No. 21 — October 13, 2010
Registration
SOR/2010-208 September 30, 2010
IMMIGRATION AND REFUGEE PROTECTION ACT
P.C. 2010-1176 September 30, 2010
Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 14 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Bad faith).
REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE
PROTECTION REGULATIONS (BAD FAITH)
AMENDMENTS
1. Section 4 of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:
Bad faith
4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
Adopted children
(2) A foreign national shall not be considered an adopted child of a person if the adoption
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) did not create a genuine parent-child relationship.
Sponsorship of adopted children
(3) Subsection (2) does not apply to adoptions referred to in paragraph 117(1)(g) and subsections 117(2) and (4).
2. Subsection 117(2) of the Regulations is replaced by the following:
Adoption — under 18
(2) A foreign national who is the adopted child of a sponsor and whose adoption took place when the child was under the age of 18 shall not be considered a member of the family class by virtue of the adoption unless
(a) the adoption was in the best interests of the child within the meaning of the Hague Convention on Adoption; and
(b) the adoption was not entered into primarily for the purpose of acquiring any status or privilege under the Act.
COMING INTO FORCE
3. These Regulations come into force on the day on which they are registered.
REGULATORY IMPACT
ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Executive summary
Issue: Section 4 (R4) of the Immigration and Refugee Protection Regulations is intended to protect the integrity of the immigration program by preventing individuals from using relationships of convenience to circumvent immigration law. However, the previous formulation of R4 led to difficulties in properly identifying relationships that had been entered into in bad faith. Furthermore, there was overlap between the bad faith assessment for adopted persons entering Canada as accompanying family members and for sponsored adoptions entering under the Family Class, and ambiguity with respect to the assessment of genuineness for adoptions.
Description: Citizenship and Immigration Canada (CIC) has clarified the regulation used to determine whether or not a family relationship was entered into in “bad faith.” For immigration purposes, “bad faith” is understood to be entering into a family relationship to circumvent the Immigration and Refugee Protection Act (IRPA). CIC has also clarified the regulations surrounding the assessment of adoptions.
Cost-benefit statement: This clarification of the bad faith provision will serve to protect the integrity of the immigration system and enable a more consistent assessment and identification of relationships entered into for immigration purposes. The change is not expected to introduce new costs beyond standard officer training.
Business and consumer impacts: There are no business and consumer impacts associated with this amendment.
Domestic and international coordination and cooperation: This amendment has no implications for domestic and international coordination and cooperation.
Issue
Relationships entered into primarily to attain an immigration benefit have not been considered bona fide relationships under Canadian immigration law since the mid-1980s. These relationships are currently prohibited by section 4 of the Immigration and Refugee Protection Regulations (IRPR). The intent of R4 is to protect the integrity of the immigration program by preventing individuals from using relationships of convenience or bad faith relationships to circumvent immigration law. Prior to this amendment, the provision stated that a foreign national would not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the relationship was not genuine and was entered into primarily for immigration purposes.
Under the previous provision, it was difficult to properly identify relationships of convenience. This is because R4, as it formerly read, specified two mandatory elements for determining “bad faith” relationships: (a) that a relationship is not genuine and (b) that it was entered into primarily for the purpose of acquiring any status or privilege under the Act. This led to a requirement that CIC be satisfied that both elements have not been met when refusing a case under this regulation and supporting that decision on appeal. However, a “bad faith” relationship is present when either of these related factors is apparent.
The former bad faith assessment in R4 for adoptions was also combined with marriages, common-law and conjugal partnerships, despite the fact that the criteria for assessing an adoptive relationship differs from the criteria used to assess the genuineness of the other relationships. Separating the assessment for adoptions and placing these primarily in section R117 clarified this distinction.
As well, with regard to sponsored adoptions under the Family Class, there formerly existed ambiguity with respect to the definitions of a “genuine” adoption and a “genuine parent-child relationship” where the genuineness of the parent-child relationship was assessed by provincial authorities in the context of the best interests of the child. Eliminating the use of the term “genuine” for adoptions and using only the language related to obtaining status or privilege under the Act is expected to reduce confusion. Under the new provisions, visa officers will continue to examine similar factors as those of a province in determining genuineness, but will do so to assess whether the adoption is primarily for status or privilege under the Act.
Objectives
The objectives of this amendment are to
(a) ensure that R4 clearly gives meaning to the purpose of the provision by permitting a fairer and more consistent assessment and identification of relationships that are entered into in “bad faith”;
(b) protect the integrity of the immigration system by preventing individuals from using “bad faith” relationships to circumvent immigration law; and
(c) clarify the regulations surrounding the assessment of different types of adoptions to ensure consistency throughout the Regulations.
Description
For the purposes of assessing the bona fides of spousal, common-law and conjugal relationships and adoptions, CIC has amended the Regulations as follows:
(1) Create a disjunctive relationship between the “genuineness” element and the “purpose” element of the bad faith assessment. This clarifies that a finding of bad faith can be made if either of these elements is present.
(2) Move the “bad faith” test for sponsored adoptions from R4 to the relevant sections in R117 to ensure greater clarity in the Regulations. R4 continues to apply to non-sponsored adoptions where no provincial jurisdiction exists.
These changes allow officers to refuse a case if either of the “bad faith” tests are met. It is expected that, in most cases, officers will focus on the “primary purpose” test. However, evidence of a lack of genuineness of the relationship is also relevant in examining whether a relationship was entered into for status or privilege under the Act.
Immigration officers called upon to decide these matters face an exceedingly difficult task. They must proceed cautiously and carefully, ever aware of the need to facilitate family reunification, while at the same time safeguarding the integrity of the immigration process. They rarely, if ever, have admissions from applicants of intent to circumvent normal immigration requirements. Nor do they often uncover collusive contracts where money has exchanged hands in the advancement of an immigration outcome. Normally, intent must be inferred from the conduct of the parties and the particular circumstances of the case.
If immigration officers are presented with indications or evidence that a relationship is not genuine, this may reasonably lead an officer to suspect that the relationship was entered into to circumvent immigration requirements in order to obtain status or privilege under the Act.
Even if it cannot be established that a relationship was entered into primarily to attain an immigration benefit, it may still fail to be a genuine relationship at the time the decision is made by an immigration officer. An important example would be a forced marriage, where true consent between the parties is lacking, perhaps as the result of the undue influence of an overbearing third party. Another example would be where a bona fide relationship has broken down before the application was submitted, with the parties no longer sharing a common commitment to the relationship but using that relationship to gain a status or privilege under the Act.
Regulatory and non-regulatory options considered
The regulatory amendment arose directly from the construction of the existing provision. Other policy instruments were not considered as they would not have addressed the issue and/or would have been at odds with the current IRPR.
Benefits and costs
Benefits
The amendment will further the policy intent of R4, which is to protect the integrity of the immigration program by preventing individuals from using relationships of convenience to circumvent immigration law. This will, in turn, serve to protect the integrity of the immigration system. Clarification of the bad faith rule will enable more consistent assessment and identification of relationships entered into for immigration purposes.
Relationships of convenience take advantage of programs that are intended to help reunite bona fide families, and are unfair towards immigrants who immigrate based on bona fide relationships. Strengthening provisions to prevent individuals from entering Canada through bad faith relationships supports bona fide immigrants and serves the best interests of Canadians by enforcing a fair immigration system.
Costs
This regulatory amendment is not expected to introduce new costs beyond officer training.
Rationale
The above changes were necessary in order to resolve ambiguity as to what constitutes a “bad faith” family relationship and to preserve the integrity of the immigration program. This regulatory amendment will help to prevent marriages and relationships of convenience, which are an ongoing issue of concern.
Consultation
Stakeholder consultations
Prior to pre-publication in the Canada Gazette, Part I, consultations were undertaken with key stakeholders, including the provinces and territories, and the Canadian Bar Association (CBA). Provinces and territories were supportive of the amendment. While the CBA was supportive of the objective of preventing “bad faith” relationships, it expressed some concerns with amendments to the provision. One such concern was the possibility that moving from a conjunctive to a disjunctive test would operate unfairly against people in arranged marriages, as mobility could be a consideration in choosing a marriage partner.
The CBA also raised the issue of the history of this provision. When the original IRPA Regulations were developed, the English version of R4 used “or” while the French version used “et.” In 2004, the English version was changed to “and” to correspond to the French version as, at the time of drafting the regulations, the intention was not to change the conjunctive nature of the bad faith provision. However, the Department’s experience with this provision in the years since has demonstrated that this construction does not effectively attain the objective of the provision, which is to prevent individuals from using marriages and relationships of convenience to circumvent the Act.
Pre-publication and 30-day comment period in the Canada Gazette
Changes to Section 4 of the IRPR concerning “bad faith” relationships were pre-published for consultation in the Canada Gazette, Part I, on April 3, 2010. The pre-publication was followed by a 30-day comment period that generated a low level of media, civil society and public interest, most of which was centered on concern that the proposed regulatory changes would negatively impact arranged marriages. Six representations were received as a result of pre-publication, including comments from the CBA and Canadian Migration Institution (CMI), the Ontario arm of the Canadian Society of Immigration Consultants (CSIC). Of these six representations, four expressed concern that the regulatory change would negatively affect arranged marriages, one was strongly supportive of the amendment’s intention to protect the integrity of Canada’s immigration system, and one sought additional clarity on how the amendment comprised a change to the existing regulation.
The intent of the regulatory amendment is to protect Canada from non-bona fide relationships and those undertaken as a means of gaining immigration status or privilege.
The changes are not intended to target arranged marriages, the majority of which are genuine relationships, and not undertaken for the primary purpose of obtaining benefits related to permanent residency. There will be no change in this regard under the amended regulation, and arranged marriages will continue to be assessed in the cultural context in which they occur.
Implementation, enforcement and service standards
Implementation required updates to guidelines in policy manuals to inform immigration officers of the new regulations, and updates to training for officers assessing “bad faith” relationships. Canada’s immigration officers base their decisions on the information made available to them at the time they consider an application. They are trained to take into account cultural practices, including arranged marriages, in reaching a decision on the bona fides of a relationship. Guidelines will be developed to ensure the proper application of the amended regulation, and officers will receive training in order to ensure that the amended “bad faith” regulation is interpreted and applied as intended, taking into account sensitivities with cultural practices, such as arranged marriages. These guidelines will be made publicly available at www.cic.gc.ca/english/resources/manuals/index.asp#tphp. As this is an amendment to an existing regulation, established enforcement measures and service standards will continue to apply.
Contact
Brenna MacNeil
Director
Immigration Branch
Citizenship and Immigration Canada
365 Laurier Avenue West
Ottawa, Ontario
K1A 1L1
Telephone: 613-941-9022
Fax: 613-941-9323
Email: brenna.macneil@cic.gc.ca
