Some individuals, seeking an easier path to Canada, may enter into a marriage with a Canadian citizen or permanent resident without having a genuine marital relationship. Such a marriage may be considered a marriage of convenience when it is entered into primarily for immigration purposes rather than as a genuine relationship.
These cases may be investigated by Canadian immigration authorities. If the authorities determine that the marriage was entered into for immigration purposes and that there was misrepresentation or other immigration-related fraud, the sponsorship application may be refused. In some circumstances, a person who obtained permanent resident status as a result of such misrepresentation may subsequently be found inadmissible and may lose their permanent resident status.
The legal test: section 4 of the Regulations
The rule is in section 4(1) of the Immigration and Refugee Protection Regulations. A foreign national is not considered a spouse, common-law partner or conjugal partner if the relationship was entered into primarily for the purpose of acquiring any status or privilege under the Act, or is not genuine. The two parts are joined by “or”, so either one is enough to refuse a sponsorship: a relationship that is genuine today can still fail the test if it began primarily for immigration, and a relationship formed for sincere reasons fails if it is not genuine now.
| Finding | Consequence | Where it comes from |
|---|---|---|
| Relationship entered into primarily for status, or not genuine | The person is not treated as a spouse or partner; the sponsorship is refused | IRPR s. 4(1) |
| Misrepresentation found | Inadmissibility for five years | IRPA s. 40 |
| Permanent residence already granted | Report, admissibility hearing and a possible removal order | IRPA ss. 44, 45 |
| Became a permanent resident as a sponsored spouse | Cannot sponsor a new spouse or partner until five years after becoming a permanent resident | IRPR s. 130(3) |
How one scheme was uncovered
I recall one case that attracted the attention of the Canada Border Services Agency (CBSA). It involved a broader scheme in which immigration agents allegedly used the same group of individuals to act as the parents and siblings of different applicants in multiple spousal sponsorship applications.
The scheme was discovered when an immigration officer reviewing a wedding photograph submitted in one application noticed that several of the people identified as the applicant’s family members appeared to be the same individuals shown in a wedding photograph submitted in an earlier case.
An investigation followed, including interviews with individuals who had participated in the scheme. The evidence obtained during the investigation was referred to the Immigration Division (ID) of the Immigration and Refugee Board of Canada. The allegations of fraud were ultimately supported by the participants’ testimony, and the affected permanent residents who received their status as spouses were found inadmissible to Canada.
When permanent residence has already been granted
A particularly serious situation arises when the applicant has already obtained permanent resident status before the alleged fraud is discovered. If the person is subsequently found to be inadmissible for misrepresentation, the CBSA may prepare an inadmissibility report and refer the matter to the Immigration Division for an admissibility hearing.
If the Immigration Division determines that the person is inadmissible, it may issue a removal order. In circumstances where an appeal is available, the permanent resident may appeal the removal order to the Immigration Appeal Division (IAD).
For a permanent resident, that appeal is not blocked by the misrepresentation finding: section 64 does not bar it, and the IAD can weigh humanitarian and compassionate factors under section 67(1)(c) — establishment in Canada, family, the best interests of any child directly affected, and hardship on removal. That differs from the sponsorship appeal described below, where a finding under section 4 removes humanitarian relief altogether.
What officers look at
Because the test turns on intention and genuineness, officers assess the relationship as a whole rather than any single document. The matters commonly examined include how the couple met and how the relationship developed, what each partner knows about the other’s background, family and daily life, whether they live together and share finances, their communication history over time, the wedding and whether families took part, and previous relationships or sponsorships. Partners may be interviewed separately, and consistency between their answers is one of the things being tested. The wedding photograph in the scheme above is a reminder that every document in the file is read against the rest of the record — including earlier applications and any previous sponsorship by the same sponsor.
If a sponsorship is refused
A refusal of an application made from outside Canada can be appealed to the IAD by the sponsor (section 63(1) of the Act); the notice of appeal must reach the IAD within 30 days after the sponsor receives the refusal and the officer’s written reasons. Unlike parents and grandparents, a spouse or partner keeps that appeal even where the refusal is based on misrepresentation (section 64(3)). The appeal is a new hearing where both partners can testify. But if the IAD agrees that the relationship falls within section 4, the applicant is not a member of the family class, and under section 65 the IAD cannot grant humanitarian relief — the appeal succeeds only if the relationship is shown to be genuine. A refused application made from inside Canada has no IAD appeal; the route is judicial review. The difference is covered in our article on inland and outland sponsorship.
It can also be an offence
Beyond refusal and removal, the Act makes misrepresentation an offence. Section 127 prohibits knowingly misrepresenting or withholding material facts, and section 126 makes it an offence to knowingly counsel, induce, aid or abet another person to do so — the provision aimed at arrangers of schemes like the one described above. Under section 128, a conviction on indictment for either offence can lead to a fine and imprisonment of up to five years, or both. These are criminal prosecutions, separate from the immigration consequences for the people who took part.
A separation is not a marriage of convenience
Since April 28, 2017, sponsored spouses are no longer subject to the former two-year condition to live with their sponsor in order to keep their status (IRCC notice). A genuine marriage that later breaks down does not, by itself, put permanent residence at risk. What does is a finding that the relationship was not genuine, or was entered into primarily for status, at the time it was relied on — as in the scheme above.
This demonstrates why a marriage entered into for immigration purposes can have consequences extending well beyond the refusal of a sponsorship application. Even where permanent resident status has already been obtained, a later finding of misrepresentation can result in proceedings to remove the person from Canada.
Angelina Shuster is a licensed paralegal. Karb Law’s legal team assists with spousal sponsorship applications, and Angelina represents sponsors and permanent residents on appeals to the Immigration Appeal Division, including appeals involving misrepresentation. A refusal letter or an inadmissibility report can be reviewed through a free assessment.
This article is general information, not legal advice. Every relationship and every refusal is assessed on its own facts.
