Operational Bulletin 640 – April 28, 2017

Repeal of conditional permanent residence

Issue

This Operational Bulletin (OB) provides operational guidance to Immigration, Refugees and Citizenship Canada (IRCC) and Canada Border Services Agency (CBSA) employees regarding regulatory amendments that repeal the two-year period of conditional permanent residence for spouses and partners who are in a relationship for two years or less with their sponsor and have no children in common at the time of the sponsorship application. The condition required sponsored spouses and partners to cohabit with their sponsor for a period of two years after the day they became a permanent resident. This OB replaces the instructions provided in OB 480.

The following persons are affected by the repeal of the conditional permanent residence:

  • Permanent residents who have been issued a Confirmation of Permanent Residence (COPR) with a condition to cohabit with their sponsor for a period of two years and for whom the two-year period has not expired.
  • Permanent residents who are the subject of a report issued pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (IRPA) for failing to comply with the requirement to cohabit with their sponsor for a period of two years, who have not yet been referred for an Admissibility Hearing at the Immigration Division (ID) of the Immigration and Refugee Board (IRB) pursuant to subsection A44(2) as well as those who have been referred but have not yet been issued a removal order.
  • Permanent residents who have been issued a removal order for failure to comply with the requirement to cohabit with their sponsor for a period of two years and have filed an appeal to the Immigration Appeal Division (IAD) of the IRB and for whom a decision has not been made on the appeal.

1. Background

On October 25, 2012, the Government of Canada put in place a conditional permanent residence measure for spouses and partners who were in a relationship for a period of two years or less with their sponsor and had no children in common at the time of the sponsorship application. The condition required sponsored spouses and partners to cohabit with their sponsor in a conjugal relationship for a period of two years after the day they became a permanent resident. The condition was intended to deter fraudulent applications, including marriage fraud in the family reunification program.

The condition applied to

  • spouses and partners who applied for permanent residence as members of the family class or the spouse or common-law partner in Canada class (including applicants who are eligible for processing under a public policy);
  • those who became permanent residents as an accompanying family member of someone who was subject to the condition; and
  • sponsored members of the family class of a permanent resident who was subject to the condition.

On October 29, 2016, the Government of Canada pre-published a proposal to eliminate the current conditional permanent residence measure so that new permanent residents would no longer be required to live with their sponsors for two years in order to maintain their permanent resident status. The repeal of the condition addresses concerns that conditional permanent residence may result in vulnerable spouses staying in abusive relationships. This change is in line with the Government’s commitment to reunite families and makes it easier for immigrants to build successful lives in Canada.

2. New regulatory amendments

Effective April 18, 2017, conditional permanent residence no longer applies to new and existing applicants for permanent residence under the spouse, common-law partner or conjugal partner category, to their accompanying dependent children and to applicants who are being sponsored by permanent residents who were subject to the condition. The condition also no longer applies to sponsored spouses and partners who have already received permanent residence with the condition, including their accompanying family members and any sponsored family members.

2.1 Amendments to the Immigration and Refugee Protection Regulations (IRPR)

Division 8 of Part 5 of the IRPR will be entirely removed beginning on the date of the repeal (sections 72.1, 72.2, 72.3 and 72.4).

  1. For greater certainty, the conditions set out in Division 8 of Part 5 of the IRPR as that Division read immediately before the date of the coming into force of these Regulations do not apply to sponsorship applications that are pending on that date.
  2. Any condition imposed on a person under Division 8 of Part 5 of the IRPR as that Division read immediately before the date of the coming into force of these Regulations is removed.

3. Scenarios and course of action

IRCC officers are to assess eligibility requirements for all permanent residence applications and determine if the applicant meets the requirements under the Act. For spousal and partner applications, officers must make a determination on whether the relationship is genuine pursuant to section R4. If the officer is satisfied about the bona fides of the relationship and is satisfied that the applicant is a member of the family class, the officer should enter the decision in the Global Case Management System (GCMS).

Possible scenarios of persons impacted by the repeal of the condition and course of action
Scenario Course of action
Eligibility has not been assessed on a new permanent residence application.

The officer processes the application and selects “condition does not apply” in the Eligibility tab in GCMS

See GCMS functionalities and workarounds.

The application is in progress, eligibility has been assessed (passed) and the applicant would have a conditional permanent residence (“YES” already selected under “Conditional PR” in the Eligibility tab).

The officer must enter a new eligibility decision in the Eligibility tab in GCMS to reflect that the condition does not apply.

See GCMS functionalities and workarounds.

The permanent resident is currently subject to the condition (has been issued a COPR with the two-year conditional permanent residence that has not expired). The permanent resident is no longer subject to the condition. The condition no longer applies, and no action is required.
The permanent resident has asked for an exception from the application of the condition due to the death of the sponsor or as a result of abuse or neglect during the two-year period, and no decision has been made on the request.

The requests will be cancelled. Officers should inform persons requesting an exception that the condition has been repealed and they are no longer subject to the condition. If officers suspect that a person is affected by domestic violence or abuse in their relationship, they can find additional information on the IRCC website to assist them.

Note: If an officer receives a request for an exemption from a permanent resident and there is an active investigation for marriage fraud, the officer must inform the permanent resident that the condition no longer applies. However, the investigation for possible marriage fraud should continue, and a section A44 report may still be issued to the permanent resident on grounds of misrepresentation.

The permanent resident is subject to a section A44 report for failing to comply with the requirement of the conditional permanent residence that has not yet been referred for an admissibility hearing at the ID of the IRB as well as section A44 reports that have been referred but an admissibility hearing at the ID of the IRB has not yet been scheduled and no removal order has been issued.

Where a report has not yet been referred to a Minister’s delegate, officers will conclude the examination as “no further action” in GCMS and will not refer the report to the delegate.

Where a report has been referred to a Minister’s delegate, the delegate will not refer the section A44 report for a hearing before the ID of the IRB.

The permanent resident will no longer be subject to the condition. A letter should be sent to the permanent resident informing them that the condition has been repealed and they are no longer subject to conditional permanent residence.

The permanent resident is subject to a section A44 report for failing to comply with the requirement of the conditional permanent residence, and an admissibility hearing at the ID of the IRB has commenced, but a decision has not yet been rendered.

The Minister’s delegate will withdraw the referral based on mootness because the permanent resident is no longer subject to the condition.

A letter should be sent to the permanent resident informing them that the condition has been repealed and they are no longer subject to conditional permanent residence.

The permanent resident is subject to a section A44 report for failing to comply with the requirement of the conditional permanent residence and has been issued a removal order and filed an appeal at the Immigration Appeal Division (IAD) of the IRB, but a decision has not yet been rendered on the appeal. The Minister’s counsel should concede or request that the appeal be granted on the basis that the regulation was repealed and the permanent resident is therefore no longer subject to the condition. The removal order for non-compliance with the former regulations will no longer be enforced.

4. GCMS functionalities and workarounds

Important note: The Conditional field in the Eligibility Assessment view used to indicate if an individual is subject to the conditional permanent residence will not be changed in GCMS until the release in June 2017.

Instructions

Until the GCMS change is made, officers must manually enter “No” in the Conditional field to confirm that the condition does not apply for all new positive eligibility decisions.

For applications where a positive final decision has been made before the coming into force of the repeal and the applicant was subject to the condition but the COPR has not yet been issued, officers must go into the Eligibility Assessment view and remove the condition before issuing the COPR.

If a positive eligibility decision has been rendered before the date of coming into force of the repeal but a final decision has not yet been rendered, a new eligibility decision must be entered indicating that the condition does not apply.

5. COPR [IMM 5688]

Beginning on the date of the repeal, any special note under the section Conditions mistakenly added to the COPR regarding the conditional permanent residence will need to be removed. If an officer does not select “NO” and instead selects “YES” under the Conditional field in GCMS, a new eligibility decision must be entered and the officer must indicate “NO” in the Conditional field. If a COPR has been printed indicating the condition, a new amended COPR must be printed.

Transition period: There will be a transition period where COPRs issued before the date of the repeal have already been transmitted to future permanent residents. The condition may appear on the COPR but will not be valid. Officers at the port of entry or at local IRCC offices will verbally inform new permanent residents affected by this situation that they are no longer subject to the conditional permanent residence. In addition, a letter will be sent to everyone who became a permanent resident within the last two years and had the condition on their COPR to inform them that the requirement has been repealed.

Further information

Related operational instructions
  • OB 238 – Amendment to section 4 of the Regulations
  • OB 386 – Five-year Sponsorship Bar for persons who were sponsored to come to Canada as a spouse or partner
  • OB 396 – Instructions to visa officers on making determinations on membership in the family class
  • OB 480Conditional permanent residence measure for spouses and partners in relationships of two years or less and who have no children in common (Expired)
  • OB 613 – Instructions – Excluded relationship – Proxy, telephone, fax, internet or similar marriage forms where one or both parties not physically present
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