Citizenship and Immigration Committee on April 9th, 2014

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Welcome to this 21st meeting of the Standing Committee on Citizenship and Immigration.

We will begin by hearing three witnesses.

Thank you very much to the three of you, for being with us today for our study on strengthening the protection of women in our immigration system.

By video conference, from Vancouver, British Columbia, as an individual, we have Kathryn Marshall, lawyer. Thank you for being with us, Madam Marshall

From Toronto, also by video conference, as individuals, we have Audrey Macklin, professor and chair in human rights law, faculty of law, University of Toronto. Thank you for being with us, Madam Macklin; and we have Elizabeth Long, barrister and solicitor, Long Mangalji LLP. Sorry if I got it wrong, but thank you very much for being with us too.

All three will have eight minutes for your opening remarks.

We'll start with you, Madam Marshall. Please go ahead. You have the floor.

[Kathryn Marshall, Lawyer, As an Individual]

Thank you.

I would first like to thank the committee for inviting me here today to speak about what can be done to better protect sponsored spouses in the immigration system.

My name is Kathryn Marshall. I'm a practising lawyer here in Vancouver. I have an honours degree with a specialization in women's studies and feminist research. I have been a columnist with a daily newspaper here in Vancouver where I have written about women's issues. The impact of our immigration system and women's rights are a particular passion of mine.

Immigrating to Canada as a sponsored spouse can be a very isolating experience. In the majority of cases, sponsored spouses are women, and my comments today will focus on them.

Women coming to Canada as sponsored spouses face barriers other immigrants may not face. The sponsor, already a landed immigrant, will have a knowledge of an official language and some form of employment. These provide him with a social network and a greater ability to communicate and integrate into Canadian society. Dependent children sponsored to Canada are put through the best system invented to make friends, to learn official languages, and to integrate, and that is known as the public education system. This leaves a sponsored spouse often without a social support network outside of family and without an easy way to make friends or learn an official language.

Women sponsored as spouses are very dependent on their sponsors, which can put them in a position of vulnerability. It is much harder for women to leave a situation of abuse and neglect when they lack a support network outside of the family. This is especially true in cases where women also had children to care for. It is also much harder for women to leave the relationship when they are victims of practices that are not acceptable in Canada, including polygamy, forced marriages, female genital mutilation, and honour-based violence and oppression. This is obviously not acceptable.

Action is needed now to help ensure that these women are protected and can enjoy their new lives in Canada as equal, free, and productive members of Canadian society. What we need to do is help women integrate, learn an official language, and understand their rights in Canada.

It has been discussed that language requirements should be imposed before spouses are allowed to immigrate to Canada. Critics have said that language requirements would prevent many family unification sponsorships. Perhaps the best solution would be to require spouses sponsored to Canada to take English or French lessons once they have arrived in Canada. Requiring courses once in Canada could be part of the conditions of residency for sponsored spouses, and these courses could be paid for by the sponsor.

Being able to communicate in one of Canada's official languages will better enable women living in Canada as sponsored spouses to become involved in the community, meet people outside the home, obtain employment, volunteer, and get education and skills training. Having these language skills will also help women interact with important services, such as women's crisis centres and health care providers. Mandatory language classes such as these would also have the benefit of providing socialization and the opportunity for women to meet people in those critical first few months while in Canada.

These courses could also include detailed information on women's rights in our country. Understanding their rights and what options are available to them will assist women who want to leave their spouse due to an abusive situation.

It is also important that women understand they do not have to put up with practices that are unacceptable and illegal in Canada. It is also important that they understand their rights with respect to marital and common-law property, and with respect to family law and child custody and access.

The reality is that many immigrant women fear leaving their spouse because they are worried they will not be able to see their children or will not have access to their home. They may also be fearful of their legal status in Canada in the event they leave their abusive spouse.

Part of the application process should include explicitly making sure that sponsored spouses and their sponsors are aware of women's rights in this country. One possible measure is signing a document, in whichever language they know best, enumerating their rights in Canada. This document would include that women are equal, have the right to end a relationship, have parental rights, and that spousal abuse is illegal, as is polygamy, forced marriage, and so-called honour-based violence.

Upon entry to Canada, sponsored spouses should also be made aware of the vast array of resources for women, including women's health facilities, crisis centres, and educational resources, and also how to access them. It would be beneficial if more information were provided beyond just a pamphlet that's given to them on arrival, so perhaps community organizations would be willing to voluntarily host seminars or workshops for women.

I know the study is focused on the situation of spouses, but I want to direct the committee's attention to the fact that spouses are not the only immigrant women who need our help. Wives are not the only women at risk. We have tragically seen in Canada situations where daughters have become the victims of honour-based violence. As a country, we need to do a better job of protecting girls from this violence.

Aqsa Parvez, a Mississauga teenager who was the tragic victim of an honour killing at the hands of her own family, had sought help at a shelter, which unfortunately failed to identify the signs and sent her back to the hands of her abusers. The Shafia girls, who were brutally murdered in Kingston, had reportedly sought help from law enforcement and social workers. However, they tragically fell through the cracks.

We need to offer better training to teachers, social workers, workers in women's shelters, police officers, and Children's Aid Society agents to help them recognize the signs of girls in danger, and where possible, take action. The study's scope should be broadened to take into account the situation of daughters. We must do everything we can do to make sure that every women and every girl is free and equal in Canada.

In summary, the best way to protect women coming to Canada as sponsored spouses, and to help these women break out of isolationism and better integrate into their communities, is through education. Learning an official language and understanding their full legal rights and what resources are available to them and how to access them will help fulfill these goals. Thank you for giving me the opportunity to speak about this important issue and to offer some practical advice.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Ms. Marshall, thank you for your opening remarks.

Now we're going to Madame Macklin, for your opening remarks. You have the floor.

[Professor Audrey Macklin, Professor and Chair in Human Rights Law, Faculty of Law, University of Toronto, As an Individual]

Thank you very much for this opportunity to address the committee.

I'd like to begin by commending Minister Chris Alexander for formally declaring in Parliament yesterday that his government does not have the intention of imposing either language requirements on spouses prior to sponsorship or minimum income requirements on sponsors. I think both of those declarations are commendable, in part because to the extent that these measures have been used in European countries they have demonstrably had no impact on the integration of women who are sponsored as spouses, but instead have only had the predictable impact of reducing family-based migration; that is to say, preventing and delaying family reunification. As the government and all Canadians put a high value on the intact family, it would certainly be a shame if policies were enacted by the government that had precisely the opposite effect on immigrant families.

In the time that I have, I would like to address areas that can appropriately be studied by this committee because they address the specific effect of immigration and citizenship laws on the vulnerability of women who migrate. Let me begin with immigration status.

We now have in Canada, of course, a two-year conditional status for spouses. A spouse who is sponsored must reside with his or her spouse for at least two years in order to confirm permanent resident status. A failure to reside together for those two years is taken as evidence that the relationship was not genuine, and the sponsored spouse is then liable to loss of status and removal from Canada.

What is the relationship between this and the vulnerability of immigrant women? What it does, for those women who are sponsored as spouses, is give their sponsors a new way in which to make the sponsored spouse vulnerable or exploitable. How does that work? Well, it gives the sponsor the possibility of threatening removal from Canada by withdrawing the sponsorship. Of course, what that has the effect of doing is to make the sponsored spouse intimidated, vulnerable, and afraid to do anything that would jeopardize her immigration status.

The link between that and the possibility of abuse is that if a sponsored spouse finds herself in a situation in which she is being abused, she may legitimately fear leaving the relationship, because the sponsor might claim that the sponsored spouse was in fact exploiting him and was not in a genuine relationship but in a mere marriage of convenience. Then she faces removal.

Our current guidelines on spousal sponsorship provide that when there is a relationship breakdown, it is possible for a sponsored spouse to seek a kind of humanitarian and compassionate consideration and not be removed in those two years even if she leaves the relationship. But there are a number of constraints on that provision.

The first is that she has to physically leave the house, leave the relationship. So she already has to initiate the separation—which could lead to her removal from Canada—without any assurance, of course, that she will be believed in her account of being abused.

Secondly, the requirements for demonstrating to the satisfaction of a Citizenship and Immigration Canada official that the woman is indeed subject to abuse are fairly strict and seem to rely heavily on forms of documentary evidence that may be difficult to obtain. I'll just read out some of them: court documents, protective orders, bail orders, letters from shelters or family services clinics, statements from medical doctors or health care professionals, sworn statements in the form of affidavits, police or incident reports, photos showing the victim with injuries, email messages, affidavits, and so on.

Here, the problem is that a woman may be in a very difficult situation and be unable to acquire and accumulate the kind of evidence that a Citizenship and Immigration officer demands of her. If she doesn't, then she may not be believed. If she isn't believed, then she is liable to removal from Canada instead of getting the kind of protection she needs.

Here, then, is an example of how the immigration laws in place do not alleviate, but rather exacerbate, the vulnerability of women to experiencing domestic violence.

As a matter of study, it might be useful for the committee to look at the practices of other countries around this matter and to ask two questions. First, to the extent that this conditional spousal sponsorship policy is meant to resolve the problem of so-called marriage fraud, or marriages of convenience, is there any evidence that conditional status actually achieves that objective? Second, what impact do these policies have on the vulnerability of women who are subject to them to domestic violence?

Let me turn now and say a few words about another dimension of citizenship and immigration policy, namely citizenship policy.

We have seen recently that there is increasing stringency around citizenship requirements, particularly as they relate to language. I'm sure it's clear and I'm sure everybody knows that citizenship is a very important kind of security that people have. They are assured, once they are citizens, that their status in Canada is stable. Accessing citizenship thus becomes a way of providing security, and withholding access to citizenship or making it more difficult exacerbates vulnerability.

Now, changes to the language requirements and the way in which those language requirements are evaluated may have an impact on access by women to citizenship. A study conducted by Professor Tracey Derwing of the University of Alberta for Citizenship and Immigration Canada in 2010 indicated that altering language benchmarks and increasing the stringency of testing will likely have a negative impact on two of the most vulnerable populations, namely refugees and sponsored women from east Asia and Southeast Asia, and may affect their ability to access citizenship. Again the committee might want to examine what impact more difficult and constrained access to citizenship has on the vulnerability of women.

Lastly, let me just reiterate to the committee that to the extent that we value family in Canada, any policies that deter or make more difficult or delay the ability of families to be reunited has both deleterious social consequences and also ultimately damaging economic consequences as well.

I would encourage the committee to study both of those matters in their deliberations.

Thank you very much.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much, Madam Macklin.

Madam Long, you now have the floor for your opening remarks.

[Elizabeth Long, Barrister and Solicitor, Long Mangalji LLP, As an Individual]

Thank you very much for inviting me here today.

I am a lawyer and I practise exclusively in immigration law. I'm also certified by the law society as a specialist in citizenship and immigration law.

In my practice I have quite a few clients who come from women's shelters and from legal clinics, such as the Barbra Schlifer clinic, that help abused women. I wanted to offer some advice and share some of the experiences that I've had with clients who have been abused through the spousal sponsorship system.

It is very unfortunate that when a lot of these women come to me I am helpless, based on the current immigration system, to offer them many choices other than to stay with the abuser. First of all, before they can get permanent residence there is a dilemma within the spousal sponsorship system itself, because the spousal sponsorship system is dependent on the family being together. If the woman leaves the husband, then they lose their ability to get permanent residence.

What that means is that it results in situations where the abuser has tremendous power, which is magnified by this system. This stretches throughout language ability, education, money. Women who are in spousal sponsorship situations will have that vulnerability where they're easily exploited by their abusers in these kinds of situations.

The abuser, I've seen, will often refuse to even file the papers or will threaten to withdraw. Even when they get permanent residence, they will threaten to tell immigration, send poison pen letters, and they often do. Even though the women are in genuine relationships with them, they have children with them, they are abused and they want to leave. This is the power that the abuser has over them.

What happens to the women and what happens to the children who are in these situations? Well, the women will often lose status. Their status will become precarious. They're put into detentions sometimes. The children are put into detentions sometimes or the children can be separated from them and put into the custody of the abuser. They're separated. This kind of fear is very real, and unfortunately I have to advise women that these are some of the consequences that they might face if they leave their husbands, leave the sponsors.

This is even before the sponsorship. It also happens after they get permanent residence with a conditional sponsorship. With the conditional sponsorship, it's hard enough for an abused woman, for example, in a court of law to prove that her abuser is an abuser, as we all know. Now I have to tell my clients, “You know what, you have to prove to an officer that you have been abused. If the officer doesn't believe you, you have to go to another hearing to prove that you have been abused”.

Now abuse can take many forms. Physical abuse can leave no marks. How do you prove emotional abuse? Mental abuse? Who is going to be believed?

These are often deterrents, when I am in a position of advising women. What can happen to me when I leave my husband? How will I cope with this? What will the system do to me if I leave? I have to advise them that these are possible consequences. This system is what perpetuates and what allows abuse.

I'd like to leave maybe with a few recommendations from my experiences to try to alleviate this kind of situation.

The first one is the conditional sponsorship. With the type of power that these men have over the women, it's not worth it. We need to take that away. It's not worth it to say that they can show that they're abused. Having to show that they're abused is a deterrent for them to leave because what they will lose if they were to leave means so much to them. They could lose so much if they left that it's just not worth it.

The second thing I'd like to recommend is that we have specific policies about allowing the women to stay temporarily if they leave and if they apply for humanitarian and compassionate grounds. We have a temporary resident permit that can be used to allow them to stay in the country temporarily and have status in the country temporarily, to allow them to work and to allow them to obtain permanent residence through their own means, through the Canadian experience class, for example. This has to be a specific policy instruction to the officers to allow women to be able to access this avenue.

We need to have officers specifically trained about abuse. Abuse can take so many different forms. It's not necessarily that if you don't go to the police there is no abuse. You have to have specific training about abuse in order to be able to deal with the situations.

Finally, we should have a “don't ask, don't tell” policy for police. Criminal law, where the victims are asked to testify against their abuser, should be separate from immigration. We can't have victims revictimized over and over again through the system.

Thank you very much.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you, Madam Long.

We'll now start our first round of questions with Mr. Menegakis.

You have seven minutes.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you, Madam Chair, and thank you to our witnesses for appearing before us today. I certainly found your testimonies to be very informative and very useful. Thank you for sharing your experiences with us.

This is a very important study for us. The Minister of Citizenship and Immigration, the Honourable Chris Alexander, spent the better part of January of this year doing country-wide consultations on this issue and heard many of the same things that you have brought up today, quite frankly. We have enough statistics and information to know that there is abuse in our spousal sponsorship program and it is our intention as a committee to study this and this is why we're studying it. In our deliberations we felt it prudent to do a thorough study to see how we can make improvements to the system so that we can catch those who perpetrate abuse, particularly on women.

We've touched a little bit in your testimonies on marriage fraud and marriage of convenience. We don't have an awful lot of statistics on that information. But I can tell you through our global case management system—I think, Ms. Macklin, you brought it up—the first complete year of that available to us was 2013. In 2013 for applications sponsored under the spousal or partner class, there were approximately 2,200 refusal ground instances based on bad faith relationships. So, clearly, marriage of convenience and marriage fraud are things we would like to prevent from happening and eliminate if we can in totality.

Having said that, I don't want to take away from the fact that women are being abused and they have to have an avenue. They have to have a way of getting some assistance. Certainly the conditional permanent residence, the two-year conditional PR, was not intended as a way to make life more difficult for them although I fully understand the point that you made, Ms. Macklin, as have other witnesses who have appeared before us.

There's also the other side of the coin. There are women who sponsor men to come here and those men who come here can be abusive. We recently had a case right here in Ottawa. It was very public and was published in the newspapers, of a man who was sponsored to come here and no sooner did he get here than he started abusing his wife. In his particular case, he used the system to his advantage and he's still here, and he was the abuser. We want to try to prevent these things from happening.

I'll start with you, Ms. Marshall, because you, as the others I believe, spoke about informing people of their rights under Canadian law before they come here perhaps. I believe you mentioned signing a document attesting to the fact that they have a knowledge of what their rights are. That's a very important point. I wonder if you could elaborate on that a little for us, Ms. Marshall.

[Kathryn Marshall]

Yes, certainly. I think when people are given information.... While it's nice to give them a brochure or booklet, that's what I would call a passive delivery of information. There's no guarantee that someone has actually read that information or really understands what their rights are. So I think it would be an important measure to actually include that within the application form for spouses who are doing the sponsoring, and whatever forms the sponsored spouse has to sign.

There should be a document included in there that they have to read and that lays out all of the rights that we have here in Canada with respect to women's equality, freedoms, spousal child access, family law rights, common-law property rights. It should be very explicit and clear that things like polygamy, spousal abuse, domestic abuse, female genital mutilation, and all forms of honour-based violence, are illegal in Canada. They are not acceptable practices. The individual should have to sign a document attesting to the fact that they have read and do understand these rights. Perhaps they can be written in whatever language they're most comfortable with.

But I think it's really important that people understand their rights, not just the individual coming to Canada as a sponsored spouse but also the person doing the sponsoring.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you.

Let me ask another question. Perhaps I'l refer this to Ms. Long and Ms. Macklin so that we can get input from you as well.

This is regarding proxy marriages. Proxy marriages are legal right now, as you know. It's true that a couple that is married over the phone, or sadly even by fax, can be eligible for the spousal sponsorship program. I'm under the impression that this can lead to more forced marriages, more abuse of the system, more spousal abuse cases. I'd like to hear your opinion on whether you believe that this practice should be stopped, Ms. Macklin or Ms. Long.

[Prof. Audrey Macklin]

I can only say that I don't know a lot about proxy marriages. The country where I do know proxy marriages happen quite a lot is Israel, where couples actually get married by proxy marriage quite frequently because the laws there are limited to religious marriage. I don't know if there has been a particular problem in Israel with proxy marriage, but this leads to my suggestion, which is that you might want to study the experiences of other countries where this is permitted to see if there is any correlation and then to figure out, if there is, what might be the best policy response.

It's not my understanding—but I have not studied it—that this is a particularly serious problem with regard to the incidence of forced marriage, but having said that, I confess that I have not done a close study of it.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Through our—

I'm sorry. Go ahead.

[Elizabeth Long]

I have not dealt with many proxy marriages in my experience, but here's the thing. I don't know that being married over the phone would be any different from someone standing next to them in the aisle in a church or in a mosque. If there is abuse in a situation, there will be abuse whatever the form of marriage, in my experience. That is just my opinion.

[Costas Menegakis, Conservative, Richmond Hill, ON]

Thank you very much.

[Prof. Audrey Macklin]

Maybe one thing to consider is this. There is one more point the committee may wish to consider, which is how difficult it can be for some people to come to Canada to marry their spouse in Canada. It can often be difficult to get visitor visas. What you are describing becomes an alternative to that, so it may be worth thinking that if proxy marriage is a problem, it might be important to look at Canadian visa policies with respect to the admission of people who are intending to come to Canada to get married.

[The Vice-Chair, NDP, Lysane Blanchette-Lamothe]

Thank you very much. We're out of time now.

Now, Madam Sitsabaiesan, you have the floor.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you, Madam Chair.

Thank you to all of our witnesses who are here.

I'd like to start with Ms. Long because you had made some recommendations, and in your first recommendation you spoke of the conditional sponsorship that it needs to be taken away. When you say conditional sponsorship, you're talking about the conditional permanent residency for the sponsored spouses. Is that correct?

[Elizabeth Long]

That's right.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

You're saying that the conditional PR should be removed?

[Elizabeth Long]

Yes. Here's the thing. If it is actual marriage fraud, under the previous laws, we can strip someone of their permanent residence based on misrepresentation. So if it is marriage fraud, we can use other laws to do that.

Really the harmful result of conditional sponsorship is clear for abused women, and I think it is not worth it to have that there.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Thank you.

Ms. Macklin, did you want to speak on conditional PR as well?

[Prof. Audrey Macklin]

I think that's true. I have very little to add. I think there is a choice here of what you care more about. Do you care more about the idea of marriage fraud, or do you care more about abuse of women?

If you care about marriage fraud, then my next question is this. Does this conditional sponsorship do any better job than the availability of revocation of status for misrepresentation? I don't think there is any evidence in support of the claim that it does, so if we know it does harm and it doesn't confer benefit, that raises a question of what its virtue is.

One more thing to point out here, we already screen overseas spousal sponsorship applications very closely, and as Mr. Karygiannis said, many people are screened out of that overseas, so we already have a mechanism that deals with that.

As for the in-Canada refusals that Mr. Karygiannis referred to—

[An hon. member]

It's Menegakis.

[Prof. Audrey Macklin]

I'd sure want to know what the result is, if and when those go to the immigration appeal division, rather than to simply rely on the refusal rate.

[Rathika Sitsabaiesan, NDP, Scarborough—Rouge River, ON]

Do I have time?