Immigration Status, Spousal Sponsorship & Spousal Abuse

Spousal abuse thrives in isolated spaces. Knowing this, abusers generally understand that the more effectively they are able to separate their victims from family and community supports, the greater the opportunity for control. Sometimes isolation is achieved when the victim is moved to another city or province, but where the move crosses national, cultural and linguistic boundaries, inaccessibility may be far more profound with the potential for nearly complete domination of the victim by the abuser.

It has been noted that there is reluctance among newcomers to Canada to report domestic violence. Statistics Canada notes the “limitations of statistical indicators, including the undercounting of victims due to the very personal nature of these experiences” and note “some may not have been able to participate in the survey”. The concern is that some immigrant victims may not report abuse not just because it is personal, but because they are unable to do so in one of Canada’s official languages, because they may fear or mistrust the police due to their experiences abroad, or because they fear removal from Canada and separation from their children.

For this reason trustworthy figures can be hard to find, and so, reporting on domestic violence amongst immigrants, interviews and case studies are often cited rather than across-the-board statistics. Statistics Canada has actually reported that domestic abuse is lower amongst immigrant communities than the population at large, but with the caution that victims may not have disclosed their experiences.

Still, there is a widely held view that domestic abuse amongst immigrants is a particularly serious issue. In its report on the subject, British Columbia’s Immigrant Women’s Project concludes that “immigrant, refugee and non-status women are disproportionately affected by violence”, and cites records from the provincial coroner to the effect that, while immigrants and refugees make up 25% of the overall population of British Columbia, their share of the deaths as a result of domestic violence in a recent 15-year period was 40%. Domestic violence among newcomers is said to be up.

 

A PROCESS THAT CAN ENABLE ABUSERS

The potential for abuse where there is an immigrant spouse is boosted by the nature of the spousal sponsorship process, which creates a power imbalance between spouses, or exacerbates an existing power imbalance. Up until the time when a sponsored spouse is granted permanent residency, the sponsor holds all the cards, as he or she can unilaterally terminate the process at any time without need for an explanation, and the foreign spouse’s application then fails.  Further, the sponsor has a sort of home court advantage, as generally he alone lives in Canada, is familiar with its customs and laws, and has ready access to its institutions and resources.

Once permanent resident status has been conferred, however, the sponsor’s obligations to indemnify the government for social service expenses incurred on the part of the foreign spouse become enforceable, and the spouse who has acquired permanent residency may, with certain substantial limitations, terminate the relationship, leaving the sponsor with no spouse but with the on-going requirement to fulfill the terms of the undertaking.

In Canada a sponsor must be either a citizen or a permanent resident to sponsor a spouse. The sponsor, who can be a man or woman, can sponsor a married, common-law or conjugal partner, either of the same or the opposite sex. The process can take place while the spouses live apart each in their own country; while they live together in Canada; or, if the sponsor is a citizen, while they live together abroad. The sponsor files an application to sponsor, and the foreign spouse files an application for permanent residency.   They are filed and reviewed together, although generally sequentially.

The sponsorship process requires the completion of a substantial sheaf of perplexing and ever-changing forms and their submission with enough supporting documentary evidence to satisfy the applicant’s onus to establish that the spousal relationship is genuine, and so it can take a few months of dedicated effort before a couple is in a position to file the paperwork.   Processing of the applications generally takes a year or more after that, and the need for those who are self-represented to respond to the immigration authorities’ queries and requests for more information can prolong the process further. There is much opportunity for mischief and mishap during the period that the applications are being processed.

 

THE SPONSOR AS ABUSER

Until permanent resident status is granted, a sponsor can delay filing the sponsorship application, misrepresent to the foreign spouse that it has been filed, withdraw a filed application or threaten to withdraw it. These options are exclusive to the sponsor, and may be exercised without explanation. So, for instance, a Jamaican low-skilled worker who cohabits with a Canadian professional woman who promises to sponsor him and his Jamaican child living overseas will be out of luck if she abuses him, or changes her mind about going through with the sponsorship.

The foreign spouse is effectively in limbo during the course of the processing of the sponsorship and permanent residence applications, as he or she is without permanent or perhaps even legal status. As a consequence, the foreign spouse may not be able to work or go to school for an extended period, will have access to only those government resources that a visitor to Canada has, and if legally in Canada, faces the possibility of falling out of status and being subject to arrest and removal. Needless to say, this does not encourage the reporting of abuse at the hands of the one person who, through their sponsorship, can enable them and their children to become permanent residents.

Once a foreign national obtains status, however, that status generally cannot be undone merely because he or she has been victimized. Still, the immigration authorities may commence an investigation of a new permanent resident if their sponsor, as often happens, alleges that the relationship was not genuine or the application filed was inaccurate. Should the sponsor abuse the foreign spouse within two years after the latter is granted permanent residency, the law provides that a childless victim may lose his or her status unless the abuse or neglect is established to the satisfaction of the immigration authorities and it is proved that the abuse or neglect caused the separation. Fortunately the definition of abuse is expansive.

In recent years legislative efforts have been made to reduce the possibility for abuse by a sponsor. For instance, eligibility to sponsor has been eliminated for those candidates who have been convicted of offences of a sexual nature, serious violent offences or offences that cause bodily harm within the domestic context. Also, while new permanent resident spouses now obtain their status conditional on co-habiting with their spouse for two years, there is an exemption where there is abuse.

If the foreign spouse is victimized, but nonetheless wishes to remain in Canada, the remedy is to apply for the right to remain in Canada on humanitarian and compassionate grounds, a paper process in the course of which hardship, including family violence, and the best interests of any child involved will be assessed.

 

THE APPLICANT AS ABUSER 

As stated above, it has been the case that after permanent residency has been granted, the sponsored spouse may walk away from the relationship. For the sponsor the emotional and financial consequences may be devastating. Take for example the case of a female Canadian who sponsors her husband within a traditional marriage, and who is subsequently abandoned by him because, unknown to her, he is in a relationship with another woman in his home country. She may be saddled with substantial obligations pursuant to her undertaking to sponsor him, be now without a spouse and, within the context of her traditions, be unable to marry again.

To address such concerns, recently, the sponsorship rules have been tightened in a number of ways. First, permanent residence for sponsored spouses is now conditional upon the completion of two years of co-habitation together. Spouses who have been sponsored must now wait five years before they may, in turn, sponsor a new spouse to come to Canada. Further, the bar to establish bad faith relationships has been lowered by amending the regulation to include relationships which are entered into primarily for the purpose of acquiring any status or privilege under the Act. Finally, application forms have been re-jigged to require the applicant, when signing, to agree to permit the sponsor authority to access the results of investigations of marriage fraud to the sponsor.

Sometimes the sponsor herself is the subject of abuse at the hands of the spouse she has just sponsored. If there is violence reported within the first two years, the sponsor may have a case for revocation of her spouse’s permanent residency. Of course, a victim sponsor may access Canadian justice, if the violence occurs here, but after the two-year window closes the violent sponsored spouse will not automatically be deported unless he or she is convicted and sentenced to six months or more in jail. Worse, assuming there is a separation, the sponsor will continue to be liable for social assistance payments made to the sponsored spouse for up to three years after the grant of permanent residency.

 

CONCLUSION

From the perspective of the immigration practitioner who has observed the many painful ways in which international relationships can go bad, it is critical to advise those contemplating a cross-border pairing that sponsorship creates a substantial factual record and serious legal obligations. There are ample opportunities for misunderstandings. In the end it is difficult not to conclude that, in the field of amorous relationships, as in the field of their commercial counterparts, one should be guided by the principle of caveat emptor.

 

* Leslie H. Morley practices immigration and citizenship law in Kingston, and is an Accredited Family Mediator. He may be reached at les@lesmorley.com.


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