Can Refugees be Extradited?

As the legal community continues to debate whether Bill C-49 is constitutional, the Supreme Court of Canada has indirectly touched upon the issue in Németh v. Canada, a decision about whether a refugee can be extradited to his/her country of origin to face charges. The answer is yes.
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The Canada-European Comprehensive Economic and Trade Agreement

On September 21, 2017 the immigration provisions of the Canada-European Comprehensive Economic and Trade Agreement (“CETA”) came into effect.

Chapter 10 of CETA facilitates the temporary entry of business persons.  The European Union’s commitments are the most ambitious that the European Union has ever negotiated in a free trade agreement.  For Canada, CETA’s temporary entry provisions contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences.

CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“).  This means that companies do not have to first test the Canadian labour market before hiring a foreign worker, nor do they have to commit to labour market benefits.

Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA.  When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union.

If you are a Canadian business seeking to employ a European Union national, or you are a European national seeking to work in Canada, the following are things that you should know about CETA.

1. CETA Contractual Service Providers will not need a LMIA to work in Canada for a 12-month period every 24 months.  

Contractual service providers are people employed by a European Union enterprise that does not have an establishment in Canada and that has signed a contract to supply a service to a consumer in Canada that requires the presence on a temporary basis of the European company’s employee in Canada.  To qualify for a LMIA exemption, the contractual service supplier must:

  • be a citizen of a European Union member state;
  • be engaged in the supply of a service on a temporary basis as an employee of a European Union enterprise which has obtained a service contract in Canada;
  • have been employed by the European Union enterprise for at least the year immediately preceding the date of entry into Canada;
  • generally possess a university degree or a qualification demonstrating knowledge of an equivalent level;
  • generally possess professional qualifications where such qualifications are required to exercise an activity pursuant to the law, regulations or other requirements of Canada, where the service is supplied; and
  • possess three years of professional experience in the sector of activity that is the subject of the contract.

The CETA Professionals Contractual Services Suppliers category applies to all occupations which Canada classifies as professional or managerial in the following thirty-seven sectors:

  1. Legal advisory services in respect of international public law and foreign law (i.e. non-EU law)
  2. Accounting and bookkeeping services
  3. Taxation advisory services
  4. Architectural services and urban planning and landscape architecture services
  5. Engineering services and integrated engineering services
  6. Medical and dental services
  7. Veterinary services
  8. Midwives services
  9. Services provided by nurses, physiotherapists and paramedical personnel
  10. Computer and related services
  11. Research and development services
  12. Advertising services
  13. Market research and opinion polling
  14. Management consulting services
  15. Services related to management consulting
  16. Technical testing and analysis services
  17. Related scientific and technical consulting services
  18. Mining
  19. Maintenance and repair of vessels
  20. Maintenance and repair of rail transport equipment
  21. Maintenance and repair of motor vehicles, motorcycles, snowmobiles and road transport equipment
  22. Maintenance and repair of aircrafts and parts thereof
  23. Maintenance and repair of metal products, of (non-office) machinery, of (non-transport and non-office) equipment and of personal and household goods
  24. Translation and interpretation services
  25. Telecommunication services
  26. Postal and courier services
  27. Construction and related engineering services
  28. Site investigation work
  29. Higher education services
  30. Services Relating to Agriculture, Hunting and Forestry
  31. Environmental services
  32. Insurance and insurance related services advisory and consulting services
  33. Other financial services advisory and consulting services
  34. Transport advisory and consulting services
  35. Travel agencies and tour operators’ services
  36. Tourist guides services
  37. Manufacturing advisory and consulting services

2. CETA Independent Professionals will not need a LMIA to work in Canada for a 12-month period every 24 months. 

Independent Professionals are self-employed individuals in the European Union who have contracts in Canada.  To be eligible to work in Canada as a CETA Independent Professional, a European Union citizen must:

  • be engaged in the supply of a service on a temporary basis as a self-employed person in Canada;
  • have at least six years professional experience in the sector of activity which is the subject of the contract;
  • possess a university degree or a qualification demonstrating knowledge of an equivalent level; and
  • possess professional qualifications where this is required to exercise an activity pursuant to the law, regulations or other requirements of the Party, where the service is supplied.

The CETA Professionals Independent Professionals category applies to all occupations listed which Canada classifies as managerial or professional in the following sectors:

  1. Legal advisory services in respect of international public law and foreign law (i.e. non-EU law)
  2. Architectural services and urban planning and landscape architecture services
  3. Engineering services and integrated engineering services
  4. Computer and related services
  5. Research and development services
  6. Market research and opinion polling
  7. Management consulting services
  8. Services related to management consulting
  9. Mining
  10. Translation and interpretation services
  11. Telecommunication services
  12. Postal and courier services
  13. Higher education services
  14. Insurance related services advisory and consulting services
  15. Other financial services advisory and consulting services
  16. Transport advisory and consulting services
  17. Manufacturing advisory and consulting services

Importantly, the CETA Independent Professionals category does not include the following sectors:

  • medical and dental services
  • veterinary services
  • midwifery services
  • services provided by nurses, physiotherapists and paramedical personnel
  • higher education services

3. CETA’s Intra-Corporate Transferee provisions will allow a multi-national company to transfer Senior Personnel, Specialists and Graduate Trainees to Canada

CETA’s Intra-Corporate Transferee (“ICT”) provisions are similar to Canada existing Intra-Company Transferee provisions, with the key distinction being that Graduate Trainees qualify as ICTs under CETA.

Natural persons who have been employed by an enterprise in the European Union, or who have been partners in it for at least one year, can be transferred to a subsidiary, branch, or parent company in Canada.  To qualify, the seconded employee must also be either a Senior Personnel, a Specialist, or a Graduate Trainee.

Senior Personnel will be allowed work permits valid for the lesser of 3 years, or the length of the contract, with a possible extension of up to 18 months. To qualify, a seconded employee must:

  • work in a senior position within an enterprise and primarily direct the management of the enterprise, a department or sub-division thereof;
  • exercise wide latitude in decision making, which may include having the authority personally to recruit and dismiss or taking other personnel actions (such as promotion or leave authorisations), and (i) receive only general supervision or direction principally from higher level executives, the board of directors and/or stockholders of the business or their equivalent, or (ii) supervise and control the work of other supervisory, professional or managerial employees and exercise discretionary authority over day-to-day operations.

Specialists will be allowed work permits valid for the lesser of 3 years, or the length of the contract, with a possible extension of up to 18 months.  To qualify, a seconded employee must:

  • possess uncommon knowledge of the enterprise’s products or services and its application in international markets; or
  • possess an advanced level of expertise or knowledge of the enterprise’s processes and procedures such as its production, research equipment, techniques or management.

Graduate trainees will be allowed work permits valid for the lesser of 1 year or the length of the contract, whichever is shorter.  To qualify, aseconded employee must:

  • possess a university degree; and
  • be temporarily transferred to Canada for career development purposes, or to obtain training in business techniques or methods.

4. CETA will allow European investors to obtain LMIA exempt work permits to start their business. 

European investors who are staying for an extended period in Canada can also obtain LMIA exempt work permits.  Investors are defined as those who:

  • will establish, develop, or administer the operation of an investment in a capacity that is supervisory or executive;
  • are the investor; and
  • are employed by an enterprise that has committed or is in the process of committing a substantial amount of capital.

A CETA investor work permit will be issued for one year, with possible renewals.

5. Business Visitors will Continue to be able to Travel to Canada

Under CETA, there are two categories of business visitors: short-term business visitors and business visitors for investment purposes.  Because CETA business visitors are in some cases more narrowly defined than general business visitors under current Canadian immigration law, officers will apply whichever type of business visitor provision is broader.

Specific examples of CETA short-term business visitors include those conducting independent research and design, those conducting marketing research, those engaged in most types of international sales and purchasing, tourism personnel and translators. It is important to note that the maximum length of stay of short term business visitors under CETA shall be 90 days in any six-month period.

A business visitor for investment purposes is an employee in a managerial or specialist position who is responsible for setting up an enterprise but who does not engage in direct transactions with the general public and will not receive direct or indirect remuneration from a Canadian source.

The above is just a summary of very complex free trade agreement provisions, and we strongly recommended that prospective applicants under CETA consult the IRCC website or a professional to see whether CETA encompasses them.

More information about CETA can be found here. 


Citizenship Requirements to Change October 11

The Government of Canada today announced that its long awaited changes to Canadian citizenship requirements will take effect on October 11, 2017.

Here are some key changes that you should know about.

1. The amount of time that a permanent resident must spend in Canada before being eligible to apply for Canadian citizenship is decreasing.

Currently, permanent residents have to have been physically present in Canada for four out of six years before applying for Canadian citizenship. As of October 11, 2017 applicants will instead need to be physically present in Canada for three out of five years before applying for citizenship.

As well, permanent residents will no longer be required to be physically present in Canada for 183 days in four out of the six years preceding their application.

2. Physical presence will continue to be the test for meeting the citizenship residency requirement.

Prior to 2014, it was possible for permanent residents who were not physically present in Canada but who had substantial ties to Canada to meet the citizenship residency requirement.

In 2014, Canada’s citizenship law was changed so that only the days that a permanent resident was physically present in Canada counted towards the residency requirement. This will continue to be the requirement after October 11, 2017.

3. Part of the time that a permanent resident spent in Canada as a visitor, worker or student can now count towards the citizenship residency requirement.

Currently, time spent in Canada prior to becoming a permanent resident does not count towards the physical presence requirement for citizenship.

As of October 17, 2017, applicants may count each day they were physically present in Canada as a temporary resident (such as a worker, visitor or student) or protected person, before becoming a permanent resident, as a half-day toward meeting the physical presence requirement for citizenship, up to a maximum credit of 365 days, within five years preceding the date of application.

4. The age exemptions to knowing English / French and writing a language test are increasing.

Currently, applicants between 14 and 64 years have to meet the language and knowledge requirements for citizenship.

As of October 11, 2017, applicants between 18 and 54 years must meet the language and knowledge requirements for citizenship.

More information about the changes to Canada’s citizenship residency requirements can be found here.


Borderlines Episode 17 – Issues with PreClearance at Customs Offices, with Michael Green

Michael Green, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001

In this episode we discuss Bill C-23, the Preclearance Act, 2016.  This episode was recorded in June 2017.

The United States currently operates border preclearance facilities at a number of airports and ports in Canada. These are staffed and operated by U.S. Customs and Border Protection officers. Travelers pass through U.S. Immigration and Customs, Public Health, and Agriculture inspections before boarding their aircraft, ship, or train.

Bill C-23 will:

  • provide United States preclearance officers with enhanced powers, including the ability to carry firearms;
  • establish that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
  • authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;
  • allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained;
  • authorize Canada to set up preclearance facilities in the United States;
  • specifies how Canadian immigration law will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters; and
  • deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada, if the act or omission would constitute, in Canada, an offence relating to the entry of persons or importation of goods into Canada.

The Canadian Bar Association’s comments can be found here – http://www.cba.org/CMSPages/GetFile.aspx?guid=1b0e8f11-c92b-4d80-859b-1e06c379a538

 

 

 


Upfront Medicals in the Family Class

On September 20, 2017 Immigration, Refugees and Citizenship Canada affirmed that upfront medical examinations are no longer available for Family Class applicants.

http://www.cic.gc.ca/english/resources/tools/updates/2017/09110950.asp

The inability of Family Class applicants to do upfront medical examinations was one of the changes introduced when the Liberal Government of Canada announced that it had reformed the Family Class application processing system to reduce backlogs.  At the time it was unclear why removing the ability of applicants to complete their medical examinations before applying for permanent residence would speed things up, and it is still not clear if (or why) this is the case.

It is also problematic for those who want to work in Canada during the processing of their application in certain occupations.

The issue involves Inside-Canada Spouse or Common-Law Partner in Canada Class (“SCPCC“) applicants who work in health or education professions and who are eligible for SCPCC work permits.  Because of IRCC’s announcement, applicants have had difficulty obtaining work permits that do not have medical restrictions. Indeed, in at least one case a Panel Physician refused to do a medical exam for a nurse who needed the medical restriction on her work permit removed, on the basis of IRCC’s instructions.

I hope that if anyone at IRCC is reading they reconsider their decision to not let Family Class applicants do upfront medicals, or at least clarifies that applicants who are applying under the SCPCC are exempt from the upfront medical restriction.


Working without a work permit: what jobs can a visitor do in Canada?

The following is an article that I recent wrote for The Canadian Immigrant:

It is generally understood that visitors to Canada cannot work without work permits. The consequences for doing so can include removal from Canada, being unable to apply for work permits for six months, year-long prohibitions on returning to Canada and even possible criminal sanctions for employers.

Canadian immigration legislation defines “work” broadly. It includes any activities for which wages are paid or commission is earned, and any activity that competes directly with the activities of Canadian citizens or permanent residents in the Canadian labour market. Because of this, volunteer work, unpaid internships and practicums may also require work permits.

However, while the definition of what constitutes work is broad, there are many activities that people would generally consider work that do not require work permits.

Remote work

In our increasingly globalized and digitized world, perhaps the most important work permit exemption is for remote work. Canada’s immigration department allows visitors to Canada to perform long-distance (by telephone or internet) work if their employer is outside Canada and they are remunerated from outside Canada. As such, many people who work remotely for companies abroad are able to reside in Canada for extended periods and continue working for their foreign employers. Typical examples include IT consultants, website developers, accountants, and so on.

Self-employment in a purely remote business can also be permitted. For example, an individual who runs a subscription-based website may be able to do so while residing in Canada as a long-term visitor. However, the legality of this may become questionable if the individual begins selling products directly to Canadians.

Volunteer work

The fine line between work that requires a work permit and work that doesn’t is also apparent when it comes to volunteer work.

While unpaid work can require a work permit, the Immigration, Refugees and Citizenship Canada website also states that people can volunteer for positions “which a person would not normally be remunerated, such as sitting on the board of a charity or religious institution, being a ‘big brother’ or ‘big sister’ to a child, or being on the telephone line at a rape crisis centre.” As well, unpaid remuneration for family members that is incidental to why the person is in Canada is typically permissible, including, for example, a mother assisting a daughter with childcare or an uncle helping his nephew build a cottage.

Business visitors

The largest category of people who are able to work in Canada without a work permit is business visitors. To be a business visitor, the activity must be international in scope, the primary source of the worker’s remuneration must be outside Canada, the principal place of the worker’s employer must be outside of Canada, and the accrual of profits must be outside Canada.

A very popular business visitor category includes intra-company trainers and trainees. Indeed, most business visitors to Canada typically perform some combination of attending meetings, and either giving or receiving training.

Finally, Canada’s immigration department has proclaimed that film producers employed by foreign companies for commercial shoots and any essential personnel can work in Canada without work permits.

Other exemptions

Canadian immigration legislation lists many other types of work that do not require a work permit, including some performing artists, clergy, athletes, convention organizers, public speakers, emergency personnel and more. In fact, given how many exemptions there are to needing a work permit, the starting point for any tourist wondering how to apply for a work permit should be to first determine if one is even needed.


Meaning of Dependent Child

I was recently asked whether the lock-in age for dependency is when an application is submitted or when it was assessed. In short, in Hamid v. Canada (Minister of Citizenship and Immigration), [2007] 2 FCR 152, 2006 FCA 217, the Federal Court of Appeal stated:

A child of a federal skilled worker who has applied for a visa, who was 22 years of age or over, and who was considered dependent on the skilled worker at the date of application by virtue of his or her financial dependence and full‑time study, but who does not meet the requirements of a “dependent child” within the meaning of subparagraph 2(b)(ii) of theImmigration and Refugee Protection Regulations, SOR/2002‑227, when the visa application is determined, cannot be included as part of his or her parent’s application for permanent residence in Canada.

In Anata v. Canadathe Federal Court affirmed that there is nothing in the jurisprudence or the Rules or Guidelines relevant to a live-in caregiver application to suggest that “dependent child” in this context should have a different meaning, or should be assessed at the time the application is submitted, and should not take into account what happens between the time of the application and the time of the decision.