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Beating the Marriage Fraud Rap

Over the last few years, Citizenship and Immigration Canada has been tightening the rules to fight against marriage fraud or marriages of convenience. For couples accused of marriage fraud, how do you beat the rap?

What is marriage fraud?

In Canadian immigration law, a marriage of convenience is a marriage between a foreign national and Canadian citizen/permanent resident which is not genuine or is primarily for the purpose of immigration. In short, a marriage of convenience is not entered into because of love, but for a permanent resident visa.

In most marriage fraud cases, the Canadian resident is conned by their foreign national spouse/partner. Just last month , a Dartmouth man was charged with marriage fraud.  In rarer cases, the Canadian resident conspires with a foreign national to get him or her to Canada.  While cases of a Canadian conspiring with a foreign national are rare, this Canada Border Service Agency news release shows that charges are laid in these types of cases.

Can you be wrongly accused of marriage fraud?

While marriage fraud does exist, what happens when you are accused of marriage fraud or a marriage of convenience when, in fact, your relationship is genuine?

Last month, I was interviewed by the St. John’s Telegram on this issue.  As you will see in the article, this is a case regarding a Canadian doctor who married a Ghanaian citizen.  After months of waiting, the couple has received a decision from Citizenship and Immigration Canada that refuses the Ghanaian husband a visa to immigrate to Canada. The accusation is that this is a marriage of convenience or marriage fraud.

How does Citizenship and Immigration Canada assess marriage fraud?

In practice, Citizenship and Immigration Canada officers look for specific patterns when determining marriage fraud. Earlier this year, the Toronto Star  published an article on a McMaster University professor’s paper that addressed marriage fraud. For this paper, the McMaster professor was granted unprecedented access to visa offices where marriage cases were decided. According to the Star, some of the findings of his paper were as follows:

1.  There is greater scrutiny on applicants who come from poor countries, need a visa to visit Canada, and are from cities or regions of countries where fraud is common;

2. Couples who don’t have a common language of communication, have not met before marriage, do not know details in each other’s personal histories and current lives, and are deemed not compatible in age, physical appearance and values may see their application refused more often;

3. Significant age difference and marriages that occur quickly after a first meeting will draw suspicion;

4. Sponsored spouses who had previously lived in Canada – such as someone in Canada who suddenly gets married when facing deportation from Canada – always draw suspicions.

5. Canadian officials will scrutinize photographic evidence — who and how many people attended the ceremony, the general demeanor, and if the guests smiled — to help assess credibility

What happens if you are unjustly accused of marriage fraud?

Marriage fraud and marriages of convenience are not new. A number of years ago I wrote this article and this article on the subject. While these articles are a bit dated, the message is the same.

If faced with a marriage fraud accusation, the best thing to do is to collect as much evidence of your relationship.  Phone bills, letters, emails, photos, joint utility bills, joint account statements are some of the more common documents that can be provided to help bolster your case.

Now, while getting evidence is a good idea, each case is a bit different. There is no substitution for carefully reviewing the notes made by the visa officer on the file. Occasionally, visa officers will make outright mistakes or decisions not supported by the evidence. Being able to address these is essential.

As well, since this is a legal process, it is absolutely essential to make sure that you familiarize yourself with the relevant case law. In Canada, we are in what is called the “common law” system. This system of law allows individuals to argue previously decided cases as precedents. If you can draw an identical comparison to a case that was decided in the past, you can argue that an identical decision should be made in your case. Now, while finding an absolutely identical case is hard, finding analogous cases may not be as difficult.

What makes arguing the common law difficult?

One of the most confusing aspects of the common law is that rules can be created by judges and other decision makers that cannot be found in the statutes or regulations. As these “common law” rules are just as valid as what can be seen in statutes or regulations, not having knowledge of these can be fatal to your case.

For instance, under the current citizenship law, a person must be resident in Canada for 1095 days in a 4 year period to apply for citizenship. While most people would think that 1095 days of residency means a person must be in Canada for 1095 days, different federal judges have said this is not the case. These judges have said that “residency” and “physical presence” is not the same. As a result, in certain circumstances, a person can be in Canada for less than 1095 days in a four year period but still be found to be resident. (Under changes proposed to Canada’s Citizenship Act, changes are being proposed to change residency to physical presence.) If you miss a common law rule because you are unaware of it, you can weaken your case.

Fighting a marriage fraud allegation is tough. The odds are stacked against you and you are the one who must prove your case – not the other way around. Proper preparation is key if you have any chance of success.

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About Reis Pagtakhan

Reis Pagtakhan is an immigration law partner with MLT Aikins LLP. His extensive experience includes assisting businesses obtain temporary entry to Canada and permanent residency for their executives, employees and contractors from all over the world. Reis has lectured on and written papers on immigration law for the Law Society of Manitoba, the Manitoba Bar Association, the Human Resources Management Association of Manitoba, the Canadian Corporate Counsel Association, and the Community Legal Education Association of Manitoba. He has presented position papers before the Minister of Citizenship and Immigration, Immigration Department officials and Manitoba Labour and Immigration. He has written articles on immigration for the CBC, the Winnipeg Free Press, trade, industry and ethnic publications.

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