QUICK TAKEAWAY
Immigration Marriage Fraud: Section 292 (1) of the Criminal Code states you can be charged with procuring a feigned marriage if you enter into matrimony for the primary reason of securing Canadian immigration status for yourself or a spouse. Regulations under the Immigration and Refugee Protection Act are designed to prevent people from taking advantage of our country's family-reunification regime. You can be given a five-year prison sentence for feigning a marriage or barred from the country for five years or more.
Table of Contents:
Immigration Marriage Fraud in Canada
Section 292 (1) of the Criminal Code makes it an offence for Canadians to procure a feigned marriage. That occurs when a Canadian or a permanent residentSomeone given permanent resident status in Canada but who is not a Canadian citizen enters into a marriage or common-law relationship with someone outside our borders solely with the intention of having that person immigrate to Canada. They sponsor them and once that sponsorship is complete, the newcomer receives their permanent residency card. After three more years they can file for a divorce and part ways.
In some cases, both parties in the marriage know it is a false union. In other circumstances, the sponsor is not aware that their partner has entered into the marriage only for immigration purposes.
Regulations Try to Filter Out ‘Bad Faith’ Marriages
Canada places great importance on bringing families together, which is why permanent residents or citizens are allowed to sponsor their spouse or common-law partner under the family-reunification category set out in s.12 (1) of the Immigration and Refugee Protection Act.
Section 177 (1) of the Immigration and Refugee Protection Regulations allows "the sponsor's spouse, common-law partner or conjugal partner" to be sponsored as a spouse. Section 4 (1) of those regulations forbid marriages made in "bad faithA Bad Faith marriage is where the relationship was entered into primarily for immigrating.," requiring spousal-sponsorship applicants to prove that their relationship is "genuine" and not "entered into primarily for the purpose of acquiring any status or privilege." This regulation is meant to prevent foreigners from taking advantage of our country's family-reunification regime.
What is Needed to Convict
For the Crown or immigration officials to find you guilty of immigration marriage fraud they must demonstrate beyond a reasonable doubt that you knew your actions contravened Canadian laws and that you knew your marriage as not real but just a ploy to gain citizenship.
Treated as a Hybrid Offence
A hybrid offenceAn offence prosecuted either as a summary conviction or as an indictable offence falls between a summary and an indictable offence, which immigration marriage fraudA marriage for the purpose of gaining immigration status to Canada. A Summary offenceLess-serious criminal offences is for less serious crimes such as thefts under $5,000, while an indictable offenceIndictable offences are more-serious criminal offences includes murder, sexual assault and aggravated assault. The Crown can deal with it as either a summary or indictable offence.
Penalties for Immigration Marriage Fraud
If you are found guilty of procuring a feigned marriage s.292 (1) of the Code states the maximum penalty is a five-year prison sentence, or a lesser offence if it is treated as a summary conviction. According to information from Immigration, Refugees and Citizenship Canada (IRCC), "It's a serious crime to lie, or to send false information" to Canadian officials when applying for passports, travel documents and marriage certificates.
The IRCC statement notes that it is a crime to lie on immigration forms. If that can be proven, people coming from outside the country will be barred entry for at least five years. Those within our borders could lose their permanent residency or they could be removed from Canada
Defences for Immigration Marriage Fraud
If you were unknowingly duped into a false marriage by your partner, that ignorance of the criminal activity could be a defence. Another defence would be that your rights under the Canadian Charter of Rights and Freedoms were breached during the police investigation. If the police conducted an unlawful search and seizure to obtain evidence, your lawyer can ask the court to exclude that evidence. In all cases, a successful defence is built on the facts of the case.
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McKay Ferg LLP
Patrick Flynn Lawyer
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Glossary of Legal Terms
Bad faith
When a foreign national enter into a marriage, common-law partnership or conjugal partnership for the primary purpose of immigrating to Canada.
Hybrid offence
Hybrid offences fall between a summary and an indictable offence. The Crown prosecutor chooses whether to treat the offence as a summary or indictable offence.
Immigration marriage fraud
A sham marriage entered into for the purpose of gaining immigration status to Canada.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Permanent resident
Someone who is given permanent resident status in Canada but who is not a Canadian citizen, as they are still citizens of another country. They enjoy many of the same benefits of Canadian citizens, however they must maintain their status by meeting certain requirements such as the residency obligation.
Summary offence
Summary offences are less-serious criminal offences such as disturbing the peace or unlawful assembly
