You, a Canadian citizen or permanent resident in Canada, married a foreigner and think that you have an absolute right to bring your spouse to Canada and live happily ever after. However, it is not quite as simple as that. Why not?
The Immigration and Refugee Protection Act which governs all matters of immigration to Canada, gives a discretion to immigration officers (the decision makers in any application) to decide whether the marriage to a foreigner is not entered primarily for obtaining immigration status. All problems arise because clients are unaware of this discretionary power.
Where it is true that some marriages are entered to pursue one goal, obtaining permanent status, many other marriages are genuine.
It is important to understand that the Canadian immigration system is designed in such a way that it is the obligation of the immigrant and their Canadian spouses to persuade the decision maker, the immigration officer, that their marriage is genuine and not entered primarily to obtain immigration status.
Why is the word “primarily” used here?
The immigration law recognizes the fact that the foreign spouse pursues two goals in the application, to be with their wife or husband and to stay in Canada, instead of relocating to their own countries.
Our immigration officers are well trained to determine on the spousal applications whether the marriage is false (entered primarily for the purpose of obtaining an immigration status) or genuine, and provide rational for refusals or approvals. However, the officers are not right all the time.
This is due to the simple fact that each couple is different, and handles their spousal affairs differently. Couples who live separately because of distance (for example a foreign spouse waiting for the application to be finalized in their country) usually do not have joint bank accounts or possess cars or other property jointly. Some are simply too financially weak to demonstrate they have assets. Some prefer to marry in private and therefore do not have a wedding with family and friends present. Some do not disclose the fact of their marriage to their families for various reasons,- usually when they have bad relationships with them. All of us are different and it’s hard to assess cases using some universal standard. That is why is crucial to have an experienced legal counsel by your side when deciding to apply for a sponsorship of your spouse. The counsel can examine your unique situation and present clear and convincing proof that your relationship is genuine.
It is fundamental for counsel and client to look at the case circumspectly and prove that, for example, a simple wedding where families are not in attendance and where the groom and bride were wearing jeans for the ceremony is of the same value as any other wedding. You just are expected to explain why you had a modest ceremony and did not invite your family, etc. If your explanations make common sense, then the decision making officer will believe you. Remember, it is your obligation to persuade the immigration officials of the genuineness (bona fide in Latin) of your sponsorship application.
In legal world, we use words “burden of proof” in finding out who has to persuade your case. The burden of proof in these types of application is on the applicant and not the government. I have heard from many of my clients that they were sure that they did not have to prove anything. Their reasoning was that since they are married, it must be clear that they love each other and that the officer must believe them. Some think that it is an obligation of the immigration official to help applicants with presenting evidence. This is a grave mistake! Whether you are a client or counsel, you must gather as much evidence as possible initially and submit a detailed and comprehensive submission in writing explaining any of the circumstances of a marriage to foreign nationals.
I will provide you with some examples from my own legal practice.
One couple had been in a year of a relationship and then they decided to get married. Both of them were in their fifties and for both of them it was a second marriage. During their relationship they had visited each other in their respective countries on a few occasions. The foreign spouse was from UK therefore, she could have visited her future husband without applying for a temporary resident visa at the Canadian consulate in her country. However, because the foreign spouse had her own business and a rather complicated financial history, she was hesitant to create any joint financial affairs with her Canadian fiancée. As a result, they kept their bank accounts separately and did not help each other financially. They decided to marry right after the Canadian spouse proposed her, so no engagement celebration took place. Their respective families were aware of their union, but the spouses decided to register their marriage in Las Vegas in total privacy, with no family present. I remember their wedding photos: both were wearing jeans and the registration was witnessed by complete strangers. My office presented the immigration department with detailed written counsel’s submissions describing the life style of both clients prior to their marriage as to demonstrate their specifics and preferences. We supported the application with statutory declarations of friends and family, photos of the wedding, flight tickets as proof of visits and a short correspondence the couple were exchanging during their relationship via Skype. Due to the fact that the foreign spouse did not have good writing skills, they mostly talked over the phone. We presented proof of telephone bills and explained the reason of lack of written communication.
Another couple did not preserve any proof of their relationship because both of them were living together in Canada. The foreign spouse was an illegal immigrant hiding from deportation. He could not officially open a joint account with his Canadian spouse or officially rent an apartment together. We explained the absence of evidence at that point, and focused on proving the fact that both spouses’ families were closely involved in their lives: we presented photos of the foreign spouse and his mother-in-law, as well as email correspondence between the Canadian spouse and her foreign spouse’s children.
So, the main points in these types of applications are that the officials have discretion to decide upon genuineness of your marriage, and it is you who have to prove the government that the marriage is primarily for the purpose of living together as spouses and not for only immigration. Finally, the burden of proof lies with you and you have to explain any inconsistencies or lack of material evidence. Don’t be afraid to stay your ground! And of course, you should hire a legal professional who is familiar with immigration law.