Issue 29 Vol II, December 15, 2006

L A W  &  J U S T I C E

Canadian Immigration Laws: Need for Change

LAWS define rights, seek to protect them and tend to punish those who violate them. Canadian immigration laws recently amended seeking to curb tendency to betray spouses, having attained immigration by virtue of marriage, still are being exploited by unscrupulous immigrants entering after marrying Canadian immigrants. Senior lawyer and commentator Joginder Singh Toor, now on a visit to Canada finds the problem serious enough calling for the attention of the law makers. Happily there is some effort in that direction.

Canadian immigration laws allow a permanent resident or a citizen of Canada to sponsor for immigration, Parents, Grandparents, children adopted out side of Canada or intended to be adopted in Canada, brothers or sisters nephews or nieces grandsons granddaughters who are orphaned and are less than 18 years of age or any other family member if there is no spouse or common law partner.

Besides this one may sponsor his spouse or a married partner or common law partner, i.e. a partner with who sponsor has been living in the nature of a marriage without there being a formal marriage. Canadian marriage laws recognize this relationship and provide a presumption of marriage if two persons have been living for a considerable period having relationship in the nature of marriage.

Spouse and conjugal partner are two distinct categories. The term spouse suffered a change in Canadian laws. It now means “either of two persons who are married to each other”. It is for the reason that term” married partner” has been used differently from the term spouse.

The problem that has caused serious concern remorse and regret is the attempt by immigration seekers to marry unwillingly an immigrant, a permanent resident or citizen of Canada just to enter Canada, betray the sponsor and seek divorce and remarry. Some times there are mutual arrangements knowingly done for ulterior motives, first to sponsor some body as a spouse and then to seek divorce and sponsor another one. It has raised the number of failed marriages, divorced wives and divorced husbands. This clandestine practice in the opinion of law makers has caused serious social reprehensions.

Government of Canada by amending the laws has placed a restriction on person’s sponsoring on the basis of marital relations and then seeking divorce. He can not sponsor another person for marriage at least far a period of three years from the date of divorce.

This amendment did not see another aspect of the situation. The restrictions have been imposed on a Canadian Permanent resident or citizen of Canada that he can not remarry for three years after sponsoring a person living out side Canada on the basis of marital relations seeks divorce but it does not lay any restriction on the person sponsored.

Large number of cases has been reported to law makers and  the members of House of  Commons, where the person sponsored betrayed the marriage just after entering the territory of Canada, becoming a permanent immigrant and walking away from the airport itself. The sponsoring partner has no option but to divorce and suffer the penalty of not sponsoring another person for a period of three years where as the sponsored married partner is free to marry the next day the marriage is dissolved by a decree of divorce.

Mr. Gurbax Singh Malhi, a five time member parliament and a leading member of the Punjabi community has submitted a memorandum to the House of Commons to amend further the immigration laws. The memorandum has been accepted as a motion to be placed before the Parliament and is likely to be discussed for approval if the present parliament stays by then.

There are implications of amending a law or regulation. The process requires a consideration of regulations prescribing and governing any matter relating to, classes of permanent residents or foreign nationals including the classes mentioned in section 12.The regulations may include provisions with aspect to the selection criteria, the weight if any, to be given to all or any of the criteria and the conditions that may or must be imposed, varied or cancelled, individually or by class on permanent residents and foreign nationals.

In division 2, FAMILY RELATIONSHIPS. The Department of Citizenship and Immigration in its guidelines, titled, spouses, common-law partners and conjugal partners in the column of excluded relationships, specifically mentions that you can not sponsor the above mentioned category of relationships if your sponsor previously sponsored another spouse, common-law partner or conjugal partner and three years have not passed since that person became a permanent resident.

The proposal in the motion is:

“It is proposed that the immigration and refugee protection regulations be amended to prohibit the persons who were sponsored to come to Canada by their spouses, common-law partners or conjugal partners to sponsor to come to Canada by their spouses, common-law partners or conjugal partners to sponsor their new spouses, common-law partners or conjugal partners after dissolution of the relationship based upon when they come to Canada.

The said amendment can be made by amending, section 5 of the immigration and refugee Protection regulations” Excluded Relationships” by adding that both the sponsor and sponsored are prohibited to sponsor for given number of years.

It is a known  fact that provisions of the family sponsorship have been misused by the sponsored spouses, after landing in Canada, marriages have been dissolved, divorces taken, and then new marriages have been arranged immediately thereafter. To prevent the misuse of the provisions of the Act and Regulations it is strongly recommended that prohibition  to sponsorship be extended from three years to five years and be applicable to both the sponsor and sponsored category of relationships.

Efforts are being made that motion is carried unanimously. A five year restriction on the sponsor and sponsored is likely to enhance the success rate of marriages, decrease the betrayal, reduce the clandestine practice and cause a positive social change.

[jogindersingh_toor@yahoo.com  Mobile No.98151-33530 ]

BACK