The Canadian government allows citizens and permanent residents of Canada to sponsor members of the family class. Members of the family class include a sponsor’s spouse, common-law partner or conjugal partner; a dependent child of the sponsor; the sponsor’s mother or father; a person the sponsor intends to adopt; and other relatives of the sponsor as defined by regulation. In this article we will restrict our analysis to overseas sponsorship of spouse/common law/conjugal partners only.
Both husband and wife may spend several thousands of dollars in their pre marriage meetings, travel, gifts and actual ceremonies but routinely ignore the information that goes onto the forms and the actual visa office interview which will decide the fate of the principal applicant. The main person who is being sponsored and will be interviewed is called Principal applicant (PA) and that’s the term I use in this article.
Every year on an average over 10,000 spouse/common law/conjugal partners are declined permanent resident visa applications. In total approximately 15% of all ‘spousal’ applications filed worldwide get declined in the first interview assessment.
I feel sympathy for dejected sponsors who come to my office when their overseas spouse are handed a refusal letter. Now they must consider appeal which is expensive and currently does take a long time. Sometimes 3-4 years for a hearing date. There is no guarantee that the judge will reverse the decision of the visa officer either. Only if they had prepared for the initial interview !
What’s Love got to do with marriage ?
Whether or not there is love in the marriage, a visa officer is there to find out if the marriage sponsorship was done for immigration privilege. What does the Canadian immigration law say ? If you have seen the final refusal letter it will always contain the following paragraph. Read it carefully. You do not want to see this in the letter your principal applicant receives.
- (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership
(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or
(b) is not genuine.
………. Based upon the information available to me…………. I am not satisfied that your marriage to the sponsor is genuine or that it was not entered into primarily for the purpose of acquiring permanent residence in Canada…..
Visa officers will check if the PA entered into marriage with Canadian sponsor just to get immigration benefit by asking a series of cross check/referral questions. Each case is different and so will be the level of scrutiny.
The marriage can be for mutual benefit and convenience but not for immigration benefit. In other word as long as the applicant doesn’t desire immigration as a consequence of marrying a Canadian resident, his or her marriage is admissible for admission into Canada.
In order to convince and obtain approval, the burden of proof is on the PA to show that, on a balance of probabilities, her/his marriage is genuine and was not entered into primarily for the purpose of acquiring a status or privilege under the Act
In my immigration law practice I advise all, specially fresh, applicants for a mandatory interview rehearsal. This interview training is all that I care for in representing a client. Going to this life changing visa interview without adequate practice is like going to the war without going to the boot camp. You will be crushed.
Visa interview questions
So what do visa officers likely ask in the marriage visa interviews ? They want to check and verify from the PA, his/her
- Previous immigration history.
- Dates and circumstances of all meetings, marriage ceremonies and later events related to cohabitation.
- Level of knowledge the PA has about the wife and in laws.
- Previous marital history of the PA and the sponsor.
- Discrepancy between what has been written on forms and what is being said in the interview.
- Circumstances of development of marriage.
- Contact with the sponsor and proof of communication both before and after marriage.
- Proof of joint activity by both as a married couple.
- Delay in filing of application post marriage.
- Presence of any deviation from current societal norms like difference in religion, age, economic status etc.
How many guests are coming to the wedding ?
Some applicants have ignorantly vouched that the numbers of guests for example or thousands of photos etc is enough to “impress” the visa officer.
Nothing could be further from the truth. The spousal relationship, as viewed by the Immigration is based upon evidence as they see from your testimony and not mere self declaration. I laughed when one applicant told me that he has a marriage certificate and why will the visa officer not consider his marriage genuine ?
To establish the strength of relationship Immigration/visa officer relies on a multitude of factors, the nature and weight of which differ depending on the case. These factors include, but are not limited to, the following:
- the beginning, development, and duration of the couple’s relationship;
- the time that the couple spent together before and after the wedding;
- the nature of the engagement and the ceremonies;
- the knowledge and involvement of both respective families in the development of the relationship;
- plans for the future;
- the absence of significant contradictions in the testimonies and documentary evidence;
- the compatibility of the two spouses, especially in terms of age, culture, education and background;
- the absence of economic or financial reasons or the search for a better life that may have been the primary motive for the two parties to marry;
- the spouse’s level of knowledge of their day-to-day lives;
- the consummation of the marriage and establishment of intimate relations.
Refusal can be based upon
- the lack of conclusive facts and satisfactory evidence of the existence of an established marital relationship;
- the hasty nature of the proposal, acceptance, and signing of the marriage certificate;
- the differences in age, religion, and culture;
- the applicant’s scant knowledge of the appellant, particularly regarding her prior divorces, her children, her job, her friends, and her family;
- the applicant’s scant interest in the appellant’s past and certain subjects concerning her;
- the applicant’s only plans for his future with the appellant are economic in nature (business) and intended to improve his situation.
Visa officers will invariably look to see
Evidence about nature of household for marital relationship
- Bank accounts, credit cards or other financial accounts.
- Ownership of the residential property.
- Residential lease
- Rental receipts.
- Utilities account.
- Management of household expenditures.
- Evidence of joint purchase especially of household items.
- Correspondences addressed to either or both the parties t the same address.
- Important documents of both the parties show the same address like ID docs, driver licenses, insurance policies ec.
- Shared responsibilities for household management, chores etc
- Evidence of children of one or both partners residing with the couple.
- Telephone calls.
Same-Sex Spousal Sponsorship-Conjugal relationship
In Canada one can sponsor one’s same-sex partner to become a permanent resident. Of course, in many parts of the world it is not possible to marry a same-sex partner, or even for partners to live together openly, and so marriage or common-law union cannot be the foundation for such a sponsorship. Instead, the sponsorship often proceeds upon the basis that the parties are conjugal partners. Before immigration status can be conferred in such a case, however, it must be established that the relationship of the sponsor and the applicant meets the definition of conjugal partnership, and that’s where Alain Morel and Rui Guo come in.
When their case was before the Federal Court of Canada, Mr. Morel was a 59-year-old Canadian man and Mr. Guo a 27-year-old citizen of the People’s Republic of China, and they had been in a relationship for about six years. However when their same-sex, conjugal-partner sponsorship application was filed, the two men had known each other for only about two years, and they had only been physically together during one visit of ten days duration. Still, they had been in daily communication with each other by phone or other means, their relationship was exclusive, and Mr. Morel had sent Mr. Guo money and made him the beneficiary of his will. During the next four years the relationship continued and deepened, but it is important to note that the question before the visa officer, then before the Immigration and Refugee Board that heard the appeal of the visa officer’s decision, and then before the Federal Court judge that judicially reviewed the Board’s decision, was whether the relationship met the conjugal-partner standard at the time the sponsorship application was filed.
According to the Supreme Court of Canada, as it expressed itself in the case of M. v. H.  2 SCR 3, the generally accepted characteristics of a conjugal relationshipare:
- SHARED SHELTER: whether the partners live together in the same home as a couple;
- SEXUAL AND PERSONAL BEHAVIOUR: whether the partners’ relationship is exclusive, committed, and evidenced by emotional, intellectual, and physical interaction;
- SERVICES: whether household and other family-type responsibilities are shared, and whether there is evidence of mutual assistance, especially in time of need;
- SOCIAL ACTIVITIES: whether the partners share time together or participate in leisure activities together, and whether they have relationships or interaction with each other’s respective families;
- ECONOMIC SUPPORT: whether the partners are financially interdependent or dependent, and whether they have, to some extent, joined their financial affairs or arranged them to reflect their ongoing relationship;
- CHILDREN: the partner’s attitude and conduct towards children; and
- SOCIETAL PERCEPTION OF THE COUPLE: whether the partners are treated or perceived by the community as a couple.
The Visa Officer refused the application because: (1) she was not satisfied that a conjugal relationship existed between the two men because their relationship was not marriage-like; and (2) their relationship was entered into primarily for the purpose of acquiring status or privilege under immigration law. The spousal sponsorship application therefore failed, the sponsorship was refused, the application fee was lost, and Mr. Guo remained in China.
Upon the appeal of Mr. Morel, the Immigration Appeal Division of the Immigration and Refugee Board reversed that decision, however, because the panel concluded that Mr. Morel and Mr. Guo had the characteristics of conjugal partners, because they were in daily contact, gave spontaneous and direct testimony, filed extensive supporting documentation, and established that their relationship was exclusive and somewhat financially interdependent. The implication of such a reversal is usually that the sponsorship refusal is set aside, there is a finding registered that the relationship meets the definition of conjugal partnership, and then the application is returned to the visa post overseas for final processing. At this point, it looked like Mr. Morel and Mr. Guo might be together in Canada a few months hence.
However, the Minister of Citizenship and Immigration was not content with the Board’s decision and asked the Federal Court of Canada to review it. Mr. Justice Lemieux did so, determining:
- email and telephone exchanges, a money transfer and a ten-day period of cohabitation were not enough to establish a conjugal relationship;
- it was wrong to conclude that Mr. Morel and Mr. Guo shared a life together through a computer;
- it was not the intention of Mr. Morel alone that was important, but rather the intention of both men; and
- the panel had neglected to consider some of the observations of the Visa Officer.
The court allowed the application for judicial review, set aside the decision of the Immigration and Refugee Board, and sent it back to the Board to be redetermined by a different panel. The long journey of Mr. Morel and Mr. Guo, who had hoped to be living together in Canada years before, was to continue.
What lesson can we learn from this case? Hindsight, as they say, is very clear. In re
trospect, Mr. Morel and Mr. Guo might have waited to develop more evidence that their relationship was marriage-like before filing the sponsorship application or, in the alternative, invested more heavily in establishing a physical connection. This might have happened had Mr. Morel traveled to China more than once before the application was filed, or had Mr. Guo come to Canada as a visitor, or at least tried to do so. To avoid the sorts of complications they experienced, it is always desirable to carefully assess the prospects for success before filing,
- to fully document the relationship sought to be established,
- to file comprehensive written submissions, and
- to thoroughly prepare for the visa office interview.
If you do the work up front, you may avoid a lot of additional work and expense later.
To read the full case, the citation for which is Canada (Minister of Citizenship and Immigration) v. Morel 2012 FC 1404, click here.