Hello, fellow practitioners! Today’s question deals with the issue of bigamy and how it affects the spousal sponsorship process.
Question:
My question relates to Outside Canada Spousal Immigration. The sponsor is a Canadian citizen who has a spouse (first wife) and children living in Canada as Canadian citizens. He again married another person (second wife) from outside Canada without divorcing her first wife. He remained in a polygamous relationship for about 6 months until he divorced his first wife.
A spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage [R117(9)(c)(i)]. This regulation prohibits a second (or third, etc.) wife from being recognized as a spouse within the family class and provides that only the first marriage may be recognized for immigration purposes.”
Then he hired a representative in Canada to sponsor his second wife from Pakistan. His representative filed a spousal sponsorship application for him in the year 2018 citing s.25 under Humanitarian and compassionate considerations. The application is still in process and there is no update on application even after the applicant was interviewed in Pakistan in the year 2019. During this time, two children were born. Their elder child got Canadian citizenship certificate as well.
Now he fired his previous representative and hired our services. What are my options as a new representative? The client is requesting me to withdraw his previous application and file a new application after he remarries his spouse.
Answer:
This question raises a number of interesting issues.
You and the client’s previous representative are both correct to note that the second marriage is not recognized by IRCC because it was contracted while the sponsor was still married to someone else. Under R117(9)(c)(i), the legal effect of this is to exclude the second spouse from membership in the family class, even though the marriage might be completely legal in the country where it was performed.
It is not clear from your description of the facts of the case, but one possibility would have been to process the sponsorship as a common law partnership, if the relationship meets the criteria to be considered as such. You would have to examine the relationship to see if it falls within the definition of a common law partnership. Chapter 5.34-5.35 of IRCC policy manual OP2 will be helpful to you in this regard.
Please note that this would NOT have been possible if the sponsor was still in a relationship with his first wife because common law relationships must bear the characteristic of exclusivity. You have stated that the first marriage is terminated, but you might want to double check with the client to make sure that relationship is not ongoing.
Barring the possibility of common law sponsorship, in my view, the previous representative did the right thing. I think the best legal way to resolve the issue is to sponsor the spouse and request humanitarian and compassionate discretion to overcome R117(9)(c)(i). This leads me to wonder why the client fired his previous representative and looked for a new one, because it seems that the strategy was viable. This would be a red flag for me in the initial consultation, and might cause me not to take on the case if I felt this was going to be a problem client.
After all, it’s not the previous representative’s fault that the application is taking a long time to be processed – first of all, requests for H&C discretion always take a lot longer because they are non-routine and require a different level of attention from the deciding officer. It bears noting that the client complicated his own situation by getting married a second time outside Canada while still married ot his first wife. One might excuse a newcomer for ignorance of the law, but your client appears to have been a Canadian citizen for some time now. He must have been residing in Canada for at least a few years already before the second marriage, and it strains credulity to believe that he didn’t know a bigamous marriage might pose a problem. Second, COVID has produced lengthy delays for cases across all lines of business in IRCC. So if the client thinks you have a magic wand and can force this case through faster, he is not being rational. I hope you have not made him any promises in this regard. I would proceed cautiously with this client, because it seems his expectations might be unreasonable, and if you fail to produce results for him, he is probably going to try to blame you for it.
As a general rule, I have a policy of not interfering in another representative’s relationship with their client unless there is real evidence of malfeasance from the other representative. I usually refuse to be retained by someone else’s client if I don’t see anything particularly wrong with the way the prior rep handled it. I generally tell the client to stay where they are unless there is evidence of wrongdoing or a total breakdown in relations.
The client’s idea to divorce then remarry his spouse, in my view, doesn’t work for a couple of reasons. First of all, the Regulations specifically prohibit entering or dissolving relationships primarily for the purpose of getting a benefit under IRPA. In the same way that there are marriages of convenience, there are also dissolutions of convenience. Persons who have engaged in this are excluded from the family class by operation of law.
The only reason these clients would seek to divorce and remarry each other would be for immigration reasons – but for the immigration problem, they probably wouldn’t otherwise have considered it. One could, I suppose, argue that the primary purpose of the divorce and remarriage is to convert the bigamous marriage into a monogamous one, but I think there is at least some risk that an officer might see the situation differently. In my view, this would be a divorce of convenience, contrary to the Regulations. Please see R4.1:
4.1 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 foreign national has begun a new conjugal relationship with that person after a previous marriage, common-law partnership or conjugal partnership with that person was dissolved primarily so that the foreign national, another foreign national or the sponsor could acquire any status or privilege under the Act.
Second, keep in mind that in certain countries it may not be legal to divorce solely for the purposes of remarrying. For example, if this second marriage was done under Islamic law, I think the client may encounter problems trying to divorce and remarry the same spouse. I am no expert on Sharia law, but I have seen evidence led in other cases that suggests a Muslim couple cannot legally divorce and remarry each other unless there is an intervening consummated marriage of the wife to another party in between the divorce and remarriage. Happy to be corrected on that one if anybody out there with more knowledge of Islamic marriage and divorce rules finds me wrong on this – I would love to hear more about that. Meantime, I have doubts that legally the couple would even be allowed to divorce and then remarry under any Islamic system. It is worth checking into this more carefully before giving the client any advice.
Given that the sponsorship has already been filed, has been pending for a long time, and there is some chance of success in it, I wouldn’t recommend withdrawing it and starting over, even if you think the case might qualify as common law. If the case had been in the early stages, I might consider filing something new, but it would be a pity not to follow through given that the client has been waiting over 2 years now and is likely close to getting a final decision. Rather, I would examine the submissions that have already been made on the couple’s behalf to see if they are complete and thorough. If the previous representative has already made solid and comprehensive submissions on the humanitarian aspects of the case, I would probably leave them undisturbed other than to perhaps update them if there is any new information. If the submissions are lacking in any way, such as important arguments that are missing, or arguments that are not corroborated by supporting evidence, then take this opportunity to file additional submissions and shore up the case before a decision is made.
I would also consider the following in terms of follow-up on the case, since there appears to be an undue processing delay:
- File an Access to Information request to access the GCMS notes. These notes will give you an idea as to whether anything is seriously wrong (ie the officer has doubts about the case) or whether this is just an administrative delay. If the officer has expressed concerns or doubts, take this opportunity to file additional evidence rebutting those doubts.
- File at least 1-2 webform inquiries to see if this generates any substantive response from IRCC.
- If these inquiries do not work, try having the sponsor ask their Member of Parliament to file a status update request. This can sometimes be faster.
- If none of the above works, consider asking a lawyer to go to the Federal Court to request an Order of Mandamus compelling IRCC to decide the case. This option should only be used after the above mentioned options have been attempted.
- If the case is rejected, keep in mind that the sponsor has no right of appeal to the IAD because his wife is not a member of the family class by virtue of R4.1. You would need to either go to Federal Court to challenge the decision, or else file a new application. That decision will depend on the reasons for refusal.