Vol. 144, No. 14 — April 3, 2010

Regulations Amending the Immigration and Refugee Protection Regulations (Bad faith)

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

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. The provision currently states that a foreign national will not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the relationship is not genuine and was entered into primarily for immigration purposes.

Under the current provision, it has been difficult to properly identify these relationships. This is because R4, as it currently reads, specifies 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 leads 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 bad faith assessment in R4 for adoptions is currently combined with marriages, common-law and conjugal partnerships, despite the fact that the criteria for assessing an adoptive relationship differs from the criteria that is used to assess the genuineness of the other relationships. Separating the assessment for adoptions and placing these primarily in section R117 clarifies this distinction.

As well, with regard to sponsored adoptions under the Family Class, there currently exists ambiguity with respect to the definitions of a “genuine” adoption and a “genuine parent-child relationship” where the genuineness of the parent-child relationship is 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 intended to reduce the current confusion. Under the new provisions, visa officers will continue to examine similar factors as those of a province in determining genuineness, but 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 is proposing to amend the Regulations as follows:

(1) Create a disjunctive relationship between the “genuineness” element and the “purpose” element of the bad faith assessment. This will clarify 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 will continue to apply to non-sponsored adoptions where no provincial jurisdiction exists.

These changes will 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 will still be 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 not 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 proposed regulatory amendment arises 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 proposed 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 are 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 ongoing issues of concern.

Consultation

Consultations have been undertaken with key stakeholders including the provinces and territories, and the Canadian Bar Association (CBA). The provinces and territories are supportive of this amendment. While the CBA is supportive of the objective of preventing “bad faith” relationships, it has expressed some concerns with amendments to this provision. One concern is the possibility that moving from a conjunctive to a disjunctive test will operate unfairly against people in arranged marriages, as mobility may be a consideration in choosing a marriage partner.

Genuine arranged marriages, including those in which the prospect of a life together in Canada was a consideration in choosing a marriage partner, are not intended to be targeted by this regulatory change. The wording of the “purpose” test is clear that the relationship cannot have been entered into primarily for immigration purposes. In a bona fide relationship, while the prospect of living in Canada may be an important consideration in choosing a marriage partner, it should not be the primary purpose of the marriage. Visa officers are already trained to take into account the cultures and practices associated with legitimate arranged marriages. They will receive appropriate information and training on the intended application of the amended regulation.

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.

Implementation, enforcement and service standards

Implementation will require updates to guidelines in policy manuals to inform immigration officers of the new regulations, and updates to training for officers assessing “bad faith” relationships. 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 W
Ottawa, Ontario
K1A 1L1
Telephone: 613-941-9022
Fax: 613-941-9323
Email: brenna.macneil@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 5(1) and section 14 of the Immigration and Refugee Protection Act (see footnote a), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations (Bad faith).

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Brenna MacNeil, Director, Social Policy and Programs, Immigration Branch, Citizenship and Immigration Canada, 365 Laurier Avenue West, Jean Edmonds Tower South, 8th Floor, Ottawa, Ontario K1A 1L1 (tel.: 613-941-9022; e-mail: Brenna.MacNeil@cic.gc.ca).

Ottawa, March 25, 2010

JURICA ČAPKUN
Assistant Clerk of the Privy Council

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.

[14-1-o]

Footnote a
 S.C. 2001, c. 27

Footnote 1
 SOR/2002-227

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