ARCHIVED – Operational Bulletin 613 – June 11, 2015

Instructions – Excluded relationship – Proxy, telephone, fax, internet or similar marriage forms where one or both parties not physically present

Summary

This Operational Bulletin (OB) provides operational guidance to Citizenship and Immigration Canada (CIC) and the Canada Border Services Agency (CBSA) staff regarding regulatory amendments that make proxy, telephone, fax, internet or similar forms of marriage where one or both parties are not physically present, an excluded relationship, in all temporary and permanent immigration programs.

1. Background

Proxy marriage is defined as a marriage in which one or both of the participants are not physically present and are represented by another person at the solemnization of the marriage. A telephone, fax, or internet marriage is a marriage in which one or both of the participants are not physically present at the same location, but participate at the solemnization of the marriage by telephone, fax, Internet or other means (e.g. Skype or FaceTime). It is possible that someone other than those getting married participates on their behalf as well as over the telephone, by fax, Internet or other means.

Prior to these regulatory amendments, foreign nationals who were not physically present at their wedding ceremony were eligible to immigrate to Canada as spouses as long as their marriage was legally valid in the country in which it took place. This applied to all permanent and temporary immigration programs.

The Government of Canada has made it a priority to address the vulnerability of women in the immigration context and has taken steps to address the issue of forced marriage. The nature of proxy, telephone, fax, Internet and other similar forms of marriage can help to facilitate forced marriages because one or both spouses are not physically present, making it more difficult to determine that they consent to the marriage.

Explicitly identifying a marriage where one or both parties were not physically present as an “excluded relationship” through regulatory amendments to section 5 and subsections 117(9) and 125(1) of the Immigration and Refugee Protection Regulations (IRPR), strengthens the tools to deny all such marriages for immigration purposes, given their possible connection to early and forced marriage.

1.1 New excluded relationship

Regulatory amendments have been made to section 5 and subsections 117(9) and 125(1) of the IRPR, all of which describe the conditions under which a relationship is considered “excluded”.

These regulations will include the following amendments:

• 5. For the purposes of these Regulations, a foreign national shall not be considered
  • (c) the spouse of a person if at the time the marriage ceremony was conducted either one of both of the spouses were not physically present unless the person was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law.
• 117. (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
  • (c.1) the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the foreign national was marrying a person who was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law;
• 125. (1) A foreign national shall not be considered a member of the spouse or common-law partner in Canada class by virtue of their relationship to the sponsor if
  • (c.1) the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the foreign national was married to a person who was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law; or

1.2 What it means to be “physically present”

In order for individuals to be considered physically present at a marriage ceremony, both parties (e.g. sponsor and spouse or principal applicant and accompanying spouse) must have participated in a wedding ceremony in person.

2. Coming Into force of the amended regulations

The regulatory amendments to no longer recognize proxy, telephone, fax, Internet, and other similar forms of marriage as valid spousal relationships for immigration purposes will come into force on June 10, 2015. The regulatory amendment applies to all temporary and permanent immigration programs, including protected persons, effective June 11, 2015.

All sponsorship, permanent resident or temporary resident applications received on or after June 11, 2015, will be subject to the new regulations [5(c), 117(9)(c.1) and 125(1)(c.1)].

All sponsorship, permanent resident or temporary resident applications received before June 11, 2015, will be subject to the previous regulations [5(c), 117(9)(c.1) and 125(1)(c.1)].

3. Procedures

3.1 Application

Effective June 11, 2015, CIC, with one exemption for Canadian Forces members, no longer recognizes marriages conducted by proxy, telephone, fax, Internet or other similar forms where one or both parties are not physically present during the ceremony for immigration purposes.

Provided it meets completeness requirements, a sponsorship or permanent residence application is deemed to be locked-in on the date that it is received. By received, this means date-stamped by a CIC office designated to intake applications for a specific permanent resident category or program.

A temporary residence application submitted on paper is considered to be received on the day date-stamped by the designated CIC intake office. An application submitted electronically is considered to be received on the date the application is submitted online. Temporary residence applications made directly at a Canadian port of entry (POE) are considered received on the date of examination.

3.5 Exemption – Canadian Armed Forces Personnel

An exemption exists for members of the Canadian Armed Forces who, due to travel restrictions related to their service, were not present at their marriage ceremony, whether that marriage was conducted and registered in a foreign jurisdiction where it is legally valid. However, it must be noted that marriages in which one or both parties are not physically present cannot legally be conducted or registered in any province or territory in Canada.

This exemption would apply to Canadian Citizens and permanent residents who are applying to sponsor a foreign national spouse who he or she married by way of proxy, telephone, fax, internet or similar means where he or she could not be physically present due to travel restrictions related to their military service.

Upon discovery that a marriage was conducted by one of these excluded means, the officer should identify the sponsor’s employer on the IMM 5481 (Sponsorship Evaluation Form) to determine whether he or she is a member of the Canadian Armed Forces. If it is confirmed that the sponsor is or was a member of the Canadian Armed Forces, the officer should send a letter requesting submissions or conduct an interview with the applicant to determine whether travel restrictions related to military service caused him or her to be incapable of being physically present at the marriage ceremony. If so, an exemption will be applied and the officer will continue processing the application as a spouse (ie. FC1).

3.6 Considerations

For sponsorship applications, before making the decision to refuse an application, the officer should consider whether the exemption for Canadian Armed Forces Personnel applies.

Before making the decision to refuse any application, if the marriage ceremony was conducted by proxy, telephone, fax, internet or a similar form where one or both parties were not physically present, the officer should determine whether the applicant meets the definition of common-law partner and can be processed as such (see section 3.8.1).

Before making the decision to refuse any application, if the relationship is found to be genuine despite the marriage having been conducted by proxy, telephone, fax, internet or similar means and the applicant does not meet the definition of common-law partner, Humanitarian and Compassionate (H&C) considerations may be applied to overcome the regulation, if sufficiently compelling circumstances exist (see section 3.8.2), including situations where the best interests of the child is a consideration.

CBSA BSOs should also review all considerations in section 3.6 and process accordingly before deciding to refuse an application based on the excluded relationship.

3.7 Refusal

If the officer determines that the applicant or spouse was not physically present during the marriage ceremony and they do not qualify as common-law partners and the use of H&C is not warranted, the officer may refuse the application based on the marriage meeting the definition of an excluded relationship under R5, R117(9)(c.1) or 125(1)(c.1).

Upon refusal of the application, the officer will inform the applicant that their relationship is considered an excluded relationship under the IRPR, with reference to the applicable regulations [R5, R117(9)(c.1) and/or 125(c.1) and that only marriages in which both parties were physically present at the ceremony are considered valid, given that the relationship meets all other requirements.

Family class applications will continue to have comprehensive bona fides assessments (R4(1)); therefore, relationships that are not genuine should still be detected and refused on R4(1).

If the applicant did not disclose that the marriage was conducted by proxy, telephone, fax, internet or similar means with the intention of withholding this information, the officer may find that the applicant has misrepresented a material fact or withheld a material fact and therefore, an A44 report based on A40(1) may be written.

3.8 Genuine marriages conducted by proxy, telephone, fax, internet or similar means

The following options exist to mitigate the impact of the new provisions on individuals in genuine marriages conducted by these means:

3.8.1 Processing of common-law partners

If an individual applying under any of the immigration streams is determined by an officer to be in a marriage that was conducted by proxy, telephone, fax, internet or a similar form where one or both parties was not physically present but the individual meets the definition of common-law partner, the officer will continue processing the application with the relationship status category as common-law partner in lieu of spouse. The officer can assess whether the applicant meets the definition of common-law partner by requesting that the applicant submit an IMM 5409 (Statutory Declaration of Common-Law Union) and other relevant documentation to support the existence of a common-law relationship.

If a visa-exempt individual at a POE applies for temporary resident status that is dependent upon their relationship with their spouse and the CBSA BSO determines that he or she was married by proxy, telephone, internet, fax, or similar means, the BSO will determine whether the applicant meets the definition of common-law partner. If the applicant does not have the proof of common-law relationship with them at the POE, the BSO may issue a temporary resident permit (TRP).

3.8.2 Humanitarian and compassionate (H&C) considerations

H&C is designed to be a flexible discretionary tool that enables exceptions to be made in compelling cases, with a statutory obligation to consider the best interests of any children affected.

In order to provide flexibility to respond to individuals in vulnerable situations, the H&C provisions under paragraphs 25 and 25.1(1) of the Immigration and Refugee Protection Act (IRPA) can be used to accommodate exceptional cases and facilitate family unity in all immigration streams. Officers should remain alert and sensitive to the best interests of the child (BIOC) when undergoing an H&C assessment through identification and examination of all factors related to the child’s life.

One example of an exceptional case where there may be sufficiently compelling circumstances to warrant an exemption is if an individual could not travel to attend the marriage ceremony due to medical reasons and has lived with their spouse for less than one year and therefore cannot meet the definition of a common-law partner.

An interview with the applicant may be required to assess H&C considerations.

4. Impact of excluded relationship on family class refusal appeals before the Immigration Appeal Division (IAD)

For all appeals pursuant to section 63(1) of IRPA where the application was received by CIC before June 11, 2015 and the visa officer’s decision was based on the pre-amendment procedures for proxy marriages and similar forms, the IAD should base its decision on the law that was in effect at the time the application was received by CIC. For appeals where the application was received by CIC on or after June 11, 2015, the new regulations with respect to proxy, telephone, fax, internet or similar forms of marriage where one or both parties are not physically present during the marriage ceremony [5(c), 117(9)(c.1) and 125(1)(c.1)] will apply.