Implications of Amendments to the Immigration and Refugee Protection Act: The Plight of Sponsored Spouses

As lawyers who work closely with immigrant families – one of us specializing in legally aided immigration cases and the other specializing in family law cases – and as women and immigrants ourselves, we have had a unique opportunity to consider immigrant issues from both a legal and sociological perspective. In this article, we share our observations of some of the trends and issues arising from recent changes in immigration laws and policies. We will also describe some of the complexities arising from the cultural and inter-jurisdictional nature of the issues, and the impact on Canadian immigrant families.

The recent, significant changes to immigration law have had implications for the status of sponsored spouses, very often women, as permanent residents. For the purposes of this article, the sponsor will be assumed to be male and the sponsored spouse, female.

The underlying policy objective for the amendments was to stop abuse of the spousal sponsorship process due to marriages of convenience in Canada. While abuse of the immigration system through ‘fraud marriages’ caught the attention of policy makers, related issues such as forced marriages and abandonment of married spouses in their home country did not receive the necessary consideration and policy analysis. As a result, we have observed unintended consequences that have had a profound impact on many sponsored spouses.

On October 25, 2012, the amendments to the Immigration and Refugee Protection Act came into effect. Prior to the changes, the rules of sponsorship were simple. A Canadian citizen or permanent resident could sponsor his married or common law partner from inside or outside of Canada. When the application was approved, the sponsored person received her permanent resident status. There were established provisions for investigating cases where the sponsored person misrepresented her situation with the possible consequence of revocation of sponsorship.

The new amendments, however, declared permanent residence to be conditional. Permanent residence now requires the sponsored spouse/partner to cohabitate in a conjugal relationship for two continuous years after the conditional permanent residency is granted. Consequently, if a spouse were to leave a relationship within two years, her Permanent Residency may be revoked, and she may be deported. The few broad exceptions to such deportation are: Death of sponsor, or abuse or neglect of the sponsored spouse by her sponsor or relative living in their house. These exceptions were extended to include cases of forced marriages – where individuals are coerced to marry – only after advocates working in this area demanded this change.

In order to avoid deportation, the sponsored spouse needs to fit into an exception category through acceptable documentary evidence such as medical reports, photographs, emails, police reports, shelter stays, and the records of other agencies. Victims of domestic violence face numerous challenges, especially for the sponsored immigrant who also faces language barriers and social isolation, which contributes to the under-reporting of abuse and challenges in marshalling the documentary evidence required to meet the threshold for an exception.

Further, there is no existing exception for an amicable separation of the sponsored spouse from the sponsor, should the relationship end by mutual agreement. As a result, a sponsored spouse risks losing her immigration status if she takes steps to separate. We have also observed that sponsored spouses are required to submit their family law case documentation as corroborating evidence of abuse and/or to demonstrate their intentions regarding the marriage. These cases require collaborative efforts between immigration and family law lawyers.

In many cases, a sponsored spouse is sent back to the home country or abandoned on a family trip. Often a sponsored spouse is made to feel obligated to her sponsor for being brought to Canada. When the existence of domestic abuse, or a separation, comes to the attention of the community, the sponsored spouse may be unable to garner community support similar to that given to her sponsor. She may fear being ostracized from her community, as the breakdown of a relationship is believed to bring shame to the families.

In divorce litigation, power imbalances often create a situation in which one party is significantly disadvantaged. The party with the negotiation leverage becomes unfairly empowered at the expense of the increased vulnerability of the other party. We are deeply concerned over the dramatic shift of power dynamics that we have observed as a result of the changes in immigration laws. Within immigrant family units, common external power issues include: Financial resources, education, physical strength, mental health, religious status/moral authority and pressure from the community to stay together or reconcile. However, none of these factors creates more vulnerability for sponsored spouses than the conditions binding them to their sponsor by immigration laws.

The current immigration laws have had a negative effect on the options available to sponsored spouses who fear for themselves or their children and who might otherwise consider leaving an abusive sponsor. Many victims facing the breakdown of the relationship fear consequences beyond the loss of their immigration status. They describe fear of the consequences of leaving the abusive relationship – such as deportation, lengthy litigation and precariousness due to uncertainty of immigration status, losing child custody, deportation without their child(ren), poverty and homelessness, the attitude of their community, language barriers, lack of accurate information regarding immigration law and other legal rights, the cost of a lawyer, the need to prove their cases based on evidence that is often unavailable given their circumstances.

There is an alarming surge in cases where the sponsoring spouse delays taking steps in the sponsorship process until demands – such as dowry – are met. At the international level, the increasing trend of “abandoned brides” or “runaway grooms” is being identified as a systemic issue. Advocacy groups are demanding changes to Canadian immigration policies, calling for enhanced checks and balances between international jurisdictions. There is a need for better background scrutiny and confirmation of the intention to remain married before approval of immigration. Funds are currently being established by foreign governments to support abandoned brides. For example, the Ministry of Overseas Affairs in India has introduced a scheme to provide up to $3,000 USD to assist the victims of abuse in cases of abandoned brides.

We believe that the professionals and officials working on these immigrant issues need to have a deeper understanding of the underlying issues, and of the unintended consequences of the amendments to the Immigration and Refugee Protection Act. There is also a need for a more coordinated effort between Canada and the international community to respond to the inter-jurisdictional issues through changes in immigration policies and better implementation of existing laws. With improved understanding of these emerging trends, a collaborative approach amongst the professionals involved, and improved coordination, there could be positive changes for immigrant families.


 

Archana Medhekar is a practicing family law lawyer in Toronto, Ontario. You can reach her by e-mail at: amlaw@amlaw.ca. Archana is also a member of our AFCC-O Newsletter Committee

Deepa Mattoo is a Staff Lawyer at South Asian Legal Clinic of Ontario (SALCO). You can reach her by e-mail at: mattood@lao.on.ca

 

 

 

 


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