Regulations Changed September 30, 2010

[rjessome]

Further to the discussion started in this previous thread, http://www.canadavisa.com/canada-immigration-discussion-board/changes-to-immigration-regs-affecting-spousalclcp-applications-expected-soon-t53171.0.html;msg429300#msg429300

the Regulations have now been changed and are the law.

See Operational Bulletin 238

http://www.cic.gc.ca/english/resources/manuals/bulletins/2010/ob238.asp

Specifically:

Amended provision
The amended R4 provision provides for each of the two “bad faith” tests to stand on its own and separates the requirement related to spouses, common-law partners and conjugal partners (R4(1)) from that related to adopted children (R4(2)). The amended R4 provision reads as follows:

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.


AND

Implications
Assessing the bona fides of spousal, common-law or conjugal relationships
These changes will enable CIC and CBSA to deal more effectively with marriages of convenience, an ongoing issue of concern. They will allow officers to determine that a spousal, common-law or conjugal relationship is not bona fide if it is either not genuine or was entered into primarily for the purpose of acquiring a status or privilege under the Immigration and Refugee Protection Act. Henceforth, only one of the two criteria will need to be present to determine that a relationship is not bona fide.

[HoneyBird]

Wait! this is affecting people in process!

Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) officers must commence applying the new provision on the day on which it entered into force. Therefore, effective today, CIC and CBSA officers must apply the new provision to all new applications, all applications in process for which a final decision has not yet been rendered and all new and pending appeals before the Immigration Appeal Division (IAD).

[medellinguy]

in vulgar terms, what does that change? English isn't my first language and I am not quite sure to understand... thank you

[bonbon9]

Basically, if one of these is true your application will be denied:

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.

Scenarios:

1) Your relationship is not genuine, and it is only for the purpose of acquiring Pr in Canada (aka MARRIAGE OF CONVENIENCE). Your application will be denied.
2) Your relationship is genuine, but you decided to start a conjugal, common-law relationship or get married in order to immigrate to Canada. Your application will be denied.

The new law is basically including scenario 2 and denying PR to all those couples who decided to get married or start living together, sharing responsabilities etc, just to gather proof in order to get PR.

[medellinguy]

so, if I married my wife on September 3rd and ask for a PR so we can be together, they will think we are using wedding to live in Canada so they will refuse it?

[bonbon9]

so, if I married my wife on September 3rd and ask for a PR so we can be together, they will think we are using wedding to live in Canada so they will refuse it?

No, not at all. There are cases that have been refused for taking too long to apply for PR. CIC would think they're not that eager to be together, and conclude it is not a genuine relationship.

You just have to provide proof that your decision to get married was based on love, and not a mean to gain PR.

[matthewc]

It will be interesting to see how this plays out on the ground, both in terms of CIC's assessment of relationships, and the inevitable appeals.

The real question is how will CIC officers differentiate between people who are in a genuine relationship, and get married and shortly thereafter apply for PR from those who are in a genuine relationship and got married just so the FN spouse can stay in Canada, or come to Canada.

It's totally unrealistic to think that two people who love each other might not decide to get married in order to be able to live together, if that's what is required by immigration. If CIC starts refusing people in genuine relationships on the grounds that they "only got married for immigration" I think there will be a s**t-storm.

[jacquevw]

Ok so now they have all of us worried! I submitted my application on 10 Sept!

Would it make my case any easier considering that I have a 1 year old daughter and another baby on the way with my Canadian wife?We have been married for a year now!
I dont want my application to be denied just because an officer is having a bad day and the fact that the laws have suddenly changed!

Good luck to all!!

[matthewc]

I wouldn't worry too much. It's unlikely someone in a genuine marriage with children who has been married for a year will be refused. What will be interesting is to see if people who marry then immediately apply for PR get refused, especially if they (perhaps) have just been refused entry into Canada as a visitor. I can imagine situations where under the new regs an IO might decide the marriage is for immigration purposes, even though the relationship is totally genuine.

It's too early to say really. We'll just have to see what happens. Hopefully once they update the processing manuals there will be more clarity in terms of how they plan to actually implement this change.

It is a concern that power-tripping IO's out there will use this to refuse apps they really shouldn't refuse. That happens.

[canadianwoman]

Ok so now they have all of us worried! I submitted my application on 10 Sept!

Would it make my case any easier considering that I have a 1 year old daughter and another baby on the way with my Canadian wife?We have been married for a year now!
I dont want my application to be denied just because an officer is having a bad day and the fact that the laws have suddenly changed!

Good luck to all!!

Don't worry. With two kids and a year-long marriage, the visa officer should let you in.
Keep in mind that it used to be that an application could be refused for either reason. Then some cases on appeal were won when it was pointed out that the French and English versions differed - the French only had to prove one thing, the English two. So CIC changed the English version, and for a few years we only had to prove that the relationship was genuine, or that it wasn't entered into to get into Canada. Now they've changed it back to the way it used to be, and so now we have to prove both.

[CharlieD10]

IWhat will be interesting is to see if people who marry then immediately apply for PR get refused, especially if they (perhaps) have just been refused entry into Canada as a visitor. I can imagine situations where under the new regs an IO might decide the marriage is for immigration purposes, even though the relationship is totally genuine.

It's too early to say really. We'll just have to see what happens. Hopefully once they update the processing manuals there will be more clarity in terms of how they plan to actually implement this change.

It is a concern that power-tripping IO's out there will use this to refuse apps they really shouldn't refuse. That happens.

And there you state the crux of our dilemma.  We got married, applied for a TRV, I was denied.  We are now gathering our documents to apply for PR.  These new regulations terrify the daylights out of me, because all I can see is some IO deciding I married my husband to migrate.

[matthewc]

I'm certain the intent of this change isn't to find a way to refuse legitimate spouses. That would be contrary to one of the stated aims of the IRPA - family reunification.

I really wouldn't worry CharlieD10 - the fact that you married then applied for a TRV actually (to my mind) shows that gaining permanent status wasn't your main intention when you got married.

[annabruce]

I think some of you need to reread what is written

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

A key word here is the word primarily

Therefore, there is nothing wrong with getting married because you want to accelerate acquiring any status or privilege under the Act, so long as that wasn't your primary purpose.  You need to prove that love was your primary motivation.

An IO could argue that my wife is coming to Canada primarily because she wants to make it easier to attend her musical studies in Montreal.  I need to show that her plan to study in Canada was only a consequence of her relationship with me, otherwise Canada would never have occured to her.  I also have to be very careful to prove that my relationship with her began before she acquired her first temporary resident visa to Canada.

[Kess]

I was not expecting this change to be in force so quickly. 

Really hoping this isn't going to change the overall acceptance rates and is only used to make the OBVIOUS marriages of convienence easier to stop from immigrating.

[bonbon9]

I think some of you need to reread what is written

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

A key word here is the word primarily

Therefore, there is nothing wrong with getting married because you want to accelerate acquiring any status or privilege under the Act, so long as that wasn't your primary purpose.  You need to prove that love was your primary motivation.

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.

"Primarly" refers to the initial reason to when the marriage, common-law partnership or conjugal partnership started, not the relationship itself. Which actually means that it is entirely wrong to decide that you want to become "serious" with your boyfriend/girlfriend, just to make them eligible to PR. CIC doesn't want people to take immigration as a reason to get married or start a serious relationship.