The poets have been trying to figure it out for millennia, so it’s not entirely surprising that Immigration officials might have a hard time telling true love from false. After all, if the answer is, as the song suggests, “in his kiss” – I don’t think there’s training for that.
Still, it’s important to be able to determine that a relationship is bona fide. When Immigration Section Chair Vance Langford appeared before the Citizenship and Immigration Committee in October in support of a submission on family reunification, MPs asked how to make the bad-faith marriage section of the Immigration and Refugee Protection Regulations work better.
In a December letter to the committee, the Section recommended three amendments to the Regulations for determining the bona fides of a relationship:
- Replace the existing test to determine the validity of a relationship with an expanded and more relevant test.
- Prevent the use of res judicata to deny the right to a full appeal when Immigration, Refugees and Citizenship Canada refuses a family sponsorship application for families that have reapplied to immigrate after a previous application and appeal was unsuccessful.
- Remove the prohibition on marriages done by proxy, telephone or other remote means from being eligible for family sponsorship.
“The CBA Section supports the government’s objective of excluding applicants coming to Canada fraudulently with no intent of continuing their relationship after that immigrate,” the Section writes. “However, in the same way that the government has recognized that imposing conditional permanent residency on all individuals who have recently entered into the relationship prior to immigrating unduly restricts family reunification, the same is true of the current test introduced in 2010.”
The regulations currently have a two-part test for determining whether a relationship was entered into in bad faith (the “genuineness” of a relationship and its “primary purpose”). Only one element has to be present now; the amendment in the first recommendation would require that both indicators be present.
The Section also suggests that the “primary purpose” analysis shift from the purpose of the relationship when it was entered into, to the present purpose of the relationship, noting that while a relationship may have begun for fraudulent reasons, those reasons may change over time.
The Section notes that res judicata doesn’t appear in any immigration legislation and suggests that Parliament never meant for it to be applied as it is in the family reunification context.
“In applying res judicata, the Immigration Appeal Division has declined to hear sponsorship appeals on numerous occasions – even in situations where, since the first IAD refusal, a couple have cohabited for several more years, or have since had a child. No Canadian should be denied a meaningful hearing as to whether their relationship is bona fide simply because they were unsuccessful in a previous attempt.”
Finally, the Section notes that while it’s uncommon in Canada for people to marry by proxy or by other remote means, the government should be sensitive to cultural practices abroad and recognize marriages that are recognized elsewhere.