Operational Bulletin 605 – June 11, 2015

Change to minimum age of eligibility of spouses, common-law or conjugal partners in temporary and permanent immigration programs

Summary

This Operational Bulletin (OB) provides operational guidance to Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) staff regarding regulatory amendments that raise the minimum age of eligibility of a spouse, common-law or conjugal partner, in all temporary and permanent resident programs, from 16 to 18 years.

Background

Before June 10, 2015, a foreign national 16 years of age or older was eligible to immigrate to Canada as a spouse, common-law partner or conjugal partner. This applied to all permanent and temporary resident 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 protect women and girls from being victimized by early and forced marriage. Hence, a new regulatory amendment that will better protect against child, early, and forced marriage, and strengthen program integrity, comes into force today. This new regulation is in line with Canada’s stance against early and forced marriage and the United Nations Convention on the Rights of the Child, to which Canada is a signatory and which defines children as being persons under the age of 18.

Raising the minimum age will help decrease the risk of early and forced marriage and may also serve as a disincentive for individuals under 18 to enter into marriages of convenience in order to obtain immigration status in Canada, as they will no longer be able to be sponsored as a spouse, common-law partner or conjugal partner. It may also decrease the number of potentially vulnerable young spouses or partners immigrating to Canada who are unable to prevent an early or forced marriage from occurring because they have not yet reached full maturity or do not possess the ability to act in their own best interest.

New minimum age of spouse, common-law partner or conjugal partner

To support the change to the minimum age of eligibility for a spouse, common-law or conjugal partner, regulatory amendments have been made to paragraphs 5(a), 117(9)(a) and 125(1)(a) of the Immigration and Refugee Protection Regulations (IRPR), all of which describe the conditions under which a relationship is considered “excluded”.

Effective June 10, 2015, these regulations will read as follows:

• 5. For the purposes of these Regulations, a foreign national shall not be considered
  • (a) the spouse or common-law partner of a person if the foreign national is under the age of 18 years;
  • (b) the spouse of a person if
    • (i) the foreign national or the person was, at the time of their marriage, the spouse of another person, or
    • (ii) the person has lived separate and apart from the foreign national for at least one year and is the common-law partner of another person.
• 117. (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if
  • (a) the foreign national is the sponsor's spouse, common-law partner or conjugal partner and is under 18 years of age;
• 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
  • (a) the foreign national is the sponsor's spouse or common-law partner and is under 18 years of age;

Coming into force of the amended regulations

Changes to the minimum age of a spouse come into effect June 10, 2015. Effective that date, all references to “spouse”, “common-law partner” or “conjugal partner” are to be interpreted in a manner consistent with these regulatory amendments during the processing of applications across all permanent resident or temporary resident lines of business. The new regulations [5(a), 117(9)(a) and 125(1)] apply only to applications received on or after the day on which they come into force.

For all sponsorship, permanent resident or temporary resident applications received after June 10, 2015, the new minimum age of eligibility (18) for a spouse or partner will apply.

For all sponsorship, permanent resident or temporary resident applications received on or before June 10, 2015, the existing minimum age of eligibility (16) will apply.

Procedures

For sponsorship and permanent resident applications, a sponsored spouse or partner or an accompanying spouse or partner must meet the minimum age of eligibility at the time a complete application is received by CIC. Provided it meets completeness requirements, an application is deemed to be locked-in on the date that it is received. “Received” means date-stamped by a CIC office designated to intake applications for a specific permanent resident category or program.

For temporary resident applications, a spouse or partner must meet the minimum age of eligibility at the time a complete application is received by CIC or the Canada Border Services Agency (CBSA). An application submitted on paper is considered to be received on the day it is date-stamped by the designated CIC intake office (overseas). An application submitted electronically is considered to be received on the date the application is submitted online. An application submitted at a port of entry (POE) is considered to be received on the day the person makes the application at the POE. Effective June 11, 2015, officers reviewing sponsorship, permanent resident or temporary resident applications must determine that a person applying as a spouse or partner meets the applicable minimum age, based on the date of receipt of a complete application. If a person identified as a spouse or partner is at least 18 years of age, they are eligible to be processed. If they are 16 or 17 years of age, they are eligible as a spouse only if their complete application was received on or before June 10, 2015. This applies to both principal applicants and accompanying family members.

Effective June 11, 2015, foreign nationals who were married under the age of 18 but are 18 years of age or over at the time a complete application is received will be eligible to be processed as spouses, common-law partners or conjugal partners, as long as that marriage is valid both under the laws of the jurisdiction in which it took place and under Canadian law.

Spouses and partners under 18 years of age who are dependent on their parents

As of August 1, 2014, section 2 of the Immigration and Refugee Protection Regulations defines a dependent child as a child who

• (a) has one of the following relationships with the parent, namely,
  • (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or
  • (ii) is the adopted child of the parent; and
• (b) is in one of the following situations of dependency, namely,
  • (i) is less than 19 years of age and is not a spouse or common-law partner, or
  • (ii) is 19 years of age or older and has depended substantially on the financial support of the parent since before the age of 19 and is unable to be financially self-supporting due to a physical or mental condition.

Raising the minimum age of a spouse from 16 to 18 may result in a scenario where someone who is 16 or 17 years old, married or in a common-law relationship, but financially dependent on their parent(s), may be left alone and potentially vulnerable overseas. When this situation arises, given the fact that these children would not be considered as spouses according to this regulatory amendment, they can continue to be able to be considered dependent children and/or de facto family members. This interpretation of the regulations is consistent with the policy intent of raising the age of a spouse to prevent the vulnerability of young women.

Spouses and partners under 18 years of age who are in refugee camps

There is a risk that young spouses could be left behind in situations where they would be highly vulnerable. In situations where an underage spouse is in a refugee camp, officers are encouraged to use their discretionary power to assess the full range of circumstances on a case-by-case basis, be flexible in responding to individuals in vulnerable situations, and consider processing underage spouses and common-law or conjugal partners in situations of dependence as de facto dependants in accordance with existing policy guidelines in the refugee stream. For underage spouses, common-law or conjugal partners in situations of dependence who do not qualify as de facto family members, consideration should be given to processing them on humanitarian and compassionate grounds under section 25 and section 25.1 of the Immigration and Refugee Protection Act (IRPA).

Impact of raising the minimum age of a spouse on family class refusal appeals before the Immigration Appeal Division

There are no transitional provisions with respect to appeals filed by sponsors to the Immigration Appeal Division (IAD) under subsection 63(1) of the IRPA. Effective June 10, 2015, for all appeals pursuant to subsection 63(1) of IRPA where the application was received by CIC on or before that date and the visa officer’s decision was based on the pre-amendment minimum age of spouse, common-law or conjugal partner, 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 the minimum age will apply.