Language Requirements for Immigration (IR-11)

During the time that I have been writing this blog the most frequently asked question that readers have asked me is whether their IELTS band scores are sufficient for certain immigration programs.  Some people have even offered to book initial consultations with me just so that I would review their IELTS scores.  This has always been somewhat surprising to me given that the Citizenship and Immigration Canada (“CIC”) website publishes each of its program’s respective language requirements in a clear and concise manner.

Indeed, it is not just members of the general public that seem to be confused.  As shown in the exchange below, which I obtained through an Access to Information Act request, some immigration lawyers are unclear of the requirements.  (Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.)

Question – May 21, 2013

Dear Sir/ Madam,

I have been referred to your office, by Karen Flynn, of NHQ-Immigration in Ottawa, her phone number is _______.

I practice immigration law in Toronto, and I have the following question, regarding the Federal Skilled Worker Class, in light of the recent changes, in effect, as of May 4, 2013:

  • the IETLS benchmark is CLB 7, i.e. 6 points, for each ability. If the results of a foreign national are, for example, in 1, or 2, or 3 abilities in the CLB 8 or higher, but 1 ability, or 2, or 3, are at CLB 7level, can I give 5 or more points per ability, for the CLB 8, or higher, and 4 points, for the CLB 7 result, or once one of the results is in the CLB 7 area, all abilities can only receive 6 points, i.e. 16 points.

Basically, can I give points for each ability depending on where the ability is in the CLB range, e.g. 2 abilities are 6.0, and 2 abilities are 6.5, is the assessment 18 points or 16 points?

I look forward to your response.

Best regards,

Answer – May 22, 2013

Thank you for your inquiry.

As of May 4, 2013, all applicants under the Federal Skilled Worker Class must demonstrate that they meet the minimum language proficiency threshold of CLB 7 in all four language abilities.

As outlined in section 11.2 of the OP 6C operational manual, officers will award points for first official language proficiency based on the applicant’s demonstrated CLB level per language ability. For example, an applicant who had obtained CLB 7 in two language abilities and CLB 8 in the other two language abilities would be awarded a total of 18 points for first official language proficiency (4 points for each language ability in which their proficiency meets the minimum threshold+ 5 points for each language ability in which their proficiency exceeds the minimum threshold by one benchmark level).

There are three aspects of CIC’s response to the question above that I wish to elaborate on.  The first is where individuals can locate information about a program’s language requirements on the CIC website.  The second is the distinction between the Canadian Language Benchmark (“CLB”) and the IELTS bandscores, and how to calculate equivalence.  Finally, I will also address whether there are language requirements to becoming a temporary foreign worker.

The Languages Manual

The CIC website publishes all of its publicly available program manuals on its website here.  While there are some private manuals that can only be accessed through Access to Information Act requests, they probably only significantly impact to 5 – 10% of people interact with CIC. 

Operational bulletins and manuals - language

As shown in the image above, in order to simply its language requirements, CIC has consolidated its language requirements into a single, online manual on its website.  The languages manual is divided into the following sections:

Except for the language requirements for the Temporary Foreign Worker Program (“TFWP”), which is discussed below, the manuals above comprehensively describe most of the language requirements for CIC’s various programs.


It is important that prospective applicants distinguish between their IELTS scores and the CLB.  This can be especially confusing to people considering that the scoring system looks similar.

The CLB is the national standard used in Canada for describing, measuring, and recognizing the English language proficiency of adult immigrants and prospective immigrants for living and working in Canada. It classifies English language ability according to 13 language benchmarks.

The IELTS are one of the language tests that the Respondent has designated as being an acceptable test to asses an applicant’s CLB.  There are nine IELTS band levels, and CIC has produced numerous charts on its website showing equivalencies of the 9 IELTS bands to the 13 CLB levels.

Language test equivalency charts

The distinction is important.  I occasionally meet individuals who did not apply for the Canadian Experience Class (“CEC”) because they were told that they needed a 5.0 in all language abilities.  While this is technically true, the “5.0 requirement” refers to CLB, not IELTS.  As shown above, an IELTS Listening Score of 4.0 is equal to a CLB score of 5.0.  Hence, these individuals erred in assuming that they were not eligible.  As the CEC has application caps, delaying applying to unnecessarily re-write the IELTS can have significant detrimental consequences.

The Temporary Foreign Worker Program

Many people mistakenly assume that the TFWP does not have language requirements.  Work Permit applicants accordingly often question CIC’s authority to request proof of language ability during the Work Permit application process, which is becoming increasingly common.

Section 8.3 of the CIC’s Temporary Foreign Worker Manual states:

 R 200 (3) (a) states that:

“An officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.”

Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job.

Additionally, the officer can consider:

  • the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
  • terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”

An officer should NOT consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance. Such a consideration is beyond the scope of the current legislation.

The same principles respecting official language capability and the applicant’s ability to perform the work sought apply irrespective of the skill level of the intended occupation. There is no separate standard or criteria for applicants at NOC skill levels C or D.

An applicant’s language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMO requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that h/she would be able to perform the work sought.



Biometric Travel Headaches

On December 1, 2013, I noted that Canada has introduced a biometric requirement for nationals of certain countries.  I wrote:

Biometrics is the measurement of unique physical characteristics, such as fingerprints and facial features, for the purpose of verifying identity. Citizenship and Immigration Canada’s (CIC’s) goal in requiring that certain foreign nationals provide biometrics is to make it more difficult for individuals to use another person’s identity, and to prevent criminals, deportees and previous failed refugee claimants from (re-)entering Canada using false identification.

By Dec. 11, citizens of the following countries will be required to give their biometrics (fingerprints and digital photograph) when they apply for a visitor visa, study permit or work permit: Afghanistan, Albania, Algeria, Bangladesh, Burma (Myanmar), Cambodia, Colombia, Democratic Republic of Congo, Egypt, Eritrea, Haiti, Iran, Iraq, Jamaica, Jordan, Laos, Libya, Nigeria, Pakistan, Palestinian Authority, Saudi Arabia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tunisia, Vietnam and Yemen.

Applicants from the above-listed countries will be required to go to a Visa Application Centre (VAC) or a visa office (if a VAC is not available) to give their fingerprints and have their photographs taken. Digital copies will be sent to the Royal Canadian Mountain Police and to CIC, who will then check the fingerprints against criminal, refugee and visa application records. When successful applicants arrive at Canadian ports of entry, the Canada Border Services Agency will use the photograph and/or fingerprint to verify the identity of individuals.

Because of the biometrics requirement, it will no longer be possible for people from the above-mentioned countries to submit paper applications directly to a Canadian embassy or consulate. Instead, these individuals will have to apply in person at VACs. Online applicants will also receive instructions to appear at a VAC to provide their fingerprints.

The biometrics fee will be $85 per person. This fee is in addition to the visa/permit application fee. Individuals will need to give their biometrics, and pay the fee, each time they apply for a visa or permit, making the value of multiple-entry visas that much greater.

CIC’s goal is that by 2014 there will be more than 133 VACs in 96 countries with biometric capabilities. Unfortunately, until this goal is realized, people in countries including Afghanistan, Egypt, Iraq, Iran and Vietnam will actually have to leave their country in order to provide their biometrics at a VAC or Canadian Consulate which has biometric capabilities.

Applicants under the age of 14, over the age of 80, diplomats and people who are already in Canada are exempt from the requirement.

Difficulty Obtaining Biometrics

As stated above, many of the countries whose citizens are required to provide biometrics to visit Canada do not actually have CIC-approved biometric collection facilities.  CIC is requiring that such individuals travel abroad to provide their fingerprints at acceptable facilities.  The CIC website has a useful Google Map which shows individuals where the nearest biometric collection facility is.

As shown below, the citizens of some countries will have some serious travelling to do if they want to apply for a visa to visit Canada.  Ironically, they will likely have to apply for visas to visit countries to give fingerprints to apply for a visa to visit Canada.


Biometric Collection Point?

Nearest Biometric Collection Point











Burma (Myanmar)







Democratic Republic of Congo







Saudi Arabia





United Arab Emirates



















Palestinian Authority


Israel, Jordan

Saudi Arabia





South Sudan



Sri Lanka







Israel, Turkey







Saudi Arabia


Given this, it is difficult to see how many people from Afghanistan is going to be able to travel to Canada for the foreseeable future.  Is Turkey or Israel really going to admit Syrian nationals for the purpose of fingerprint submission? Will Iranians be able to travel to Abu Dhabi?

As well, citizens of the above countries who are currently abroad may find it difficult to submit their biometrics.  For example, I am representing a Pakistani national currently working in Oman.  He will have to travel to the United Arab Emirates to submit his fingerprints to then apply for a visa to visit Canada.  The table below shows how far apart the biometric collection facilities currently are.


Biometric Collection Point?

Nearest Office















Georgia, Mongolia

Some individuals have quipped that the decision to implement a biometric requirement prior to ensuring that biometric collection facilities were in place is the Government of Canada’s way of indirectly limiting the number of people from these countries who visit Canada.  Others have even written that there may be racial intonations behind the biometric requirement.  While I do not believe that this was the government’s motivation, it is difficult to see how the current situation will result in anything but the door to Canada being closed completely shut on the citizens of certain countries. 

Change to Age of Dependency Pushed Back

Citizenship and Immigration Canada is informing immigration representatives that the proposed reduction in the age of dependency from 22 to 18 is being pushed back.  (The same is rumoured to true for proposed changes to the study permit system.)

The e-mail that CIC is sending out reads:

Dear Sir/Madam:

Thank-you for your query.

Please be advised that a proposal to reduce the age of dependents from under 22 to under 19 was pre-published in the Canada Gazette Part I on May 18, 2013, along with the proposed regulatory changes to the PGP program.  The proposal to change the age of dependent children will not be coming into force at the time the PGP program re-opens on January 2, 2014.

Trusting this addresses your concerns.

As noted previously in this blog, currently, the children of immigrants may immigrate to Canada with their parents if they are under the age of 22.  As well, young adults over the age of 22 who have been continuous full-time students since turning 22 may also accompany their parents.

Under the proposed change, the maximum age of dependants will be reduced to 18 years of age for all immigration programs.  There will be no exception for full-time post-secondary students.  The only exception will be for those who are financially dependent on their parents due to a mental or physical disability.

Procedural Fairness Owed by Provincial Nomination Programs to “Fraudulent” Consultants

The Saskatchewan Queen’s Bench (the “Court“) in Kaberwal v. Saskatchewan (Economy), 2013 SKQB 244 has released a decision clarifying the procedural fairness owed by provincial nomination programs to immigration representatives accused of fraud.  To the best of my knowledge, it is the first decision on this issue.

The Facts of the Case

On December 31, 2012, Saskatchewan’s Ministry of Economy, Immigration Services (the “Ministry“) suspended an immigration consultant’s (the “Consultant“) right to submit applications to the Saskatchewan Immigration Nominee Program (“SINP“) for a period of two years.  SINP officials accused the Consultant of fabricating job offers for employers who informed SINP that they never saw or signed the job offers that the Consultant submitted to SINP without their knowledge.

The Ministry sent the Consultant a letter which, amongst other things, stated the following:

We have reviewed seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have you listed as the third party representative. Part of the review of the application includes verifying the validity of the documents and information included in the application. As a representative, you have signed and agreed to the Saskatchewan Immigrant Nominee Program (SINP)’s Code of Conduct for Representatives which states that you will provide truthful, accurate and complete information to the SINP and that you will be personally accountable to the SINP for all aspects of the application.

Our view of job offers from Saskarc Industries Inc. included contacting the company to confirm their validity. Our conversations with Saskarc revealed that they did not issue these seven job offers and they are not written in their standard format. Furthermore, they have indicated that these job offers are fraudulent.


We would like to give you an opportunity to respond to this information. We will afford you 30 days from the date of this letter to make any representations in this regard and to provide any reliable and verifiable evidence that you did not provide fraudulent information to the SINP. If it is determined that you have submitted fraudulent information to the SINP, you will be unable to act as a representative of any person(s) wishing to access our programs and services, including the SINP, for a period to be determined by myself. Additionally, all applications that are currently in process that list you as a third party representative will be returned and those that have been nominated will be reviewed to ensure that all information submitted is bona fide.

The Consultant, who did not retain counsel, responded, stating that:

I am writing in response to your letter dated August 2012 regarding the employer SASKARC INDUSTRIES INC.

Carl was HR of Saskarc Industries a year ago and he signed the offer for Welders and Fitters and at that time he was looking for 7-8 welders fitters and after that I didn’t contacted (sic) the company as we submitted the files and we are waiting for any reply from SINP office. And in second week of August 2012 I called the company to get an update and to find out if offers were still valid than (sic) I came to know that Roberta is HR of the company. Then I talked to Roberta and explained everything about the offers signed by Carl and I adviced (sic) her to do online registration and she did online registration as well.

Then on August 19th I left for India and when I came back I got this letter from your office. When I contacted Roberta she explained (sic) me that she was not aware of offers given by Carl and she signed 12 more offer (sic) and out of 3 or 4 already got nominations.


The format of offer letters was different because we always used this format for all files submitted by our office to SINP, which Carl had signed and the offer given by Roberta might have different format.

On December 31, the Ministry informed the Consultant that SINP was prohibiting the Consultant from submitting applications for two years.  The Ministry wrote:

Thank you for responding to the letter sent to you by the Program Integrity Unit (PIU) dated August 14, 2012. The letter was issued in order to give you the opportunity to respond to PIU findings that seven job offers from Saskarc Industries that you submitted on behalf of seven applicants that have been found to be fraudulent.

The PIU has confirmed with Saskarc Industries that while they did have a signed agreement with you, they did not sign these job offers and that they are fraudulent. Furthermore, they have indicated that all job offers issued by their office are on letterhead.

Based on this information the PIU has determined that you knowingly submitted fraudulent job offers to SINP. As a result of the foregoing, we will not accept any applications for any other programs and services, including the SINP, where you are indicted (sic) as the representative for a period of two years from the date of this letter.

SINP then informed the Consultant that applications in which she was the representative that SINP was currently processing would be returned to the prospective nominees with a letter informing the individuals that SINP was no longer accepting applications filed on their behalf by the Consultant.

No oral or in-person hearing was conducted by the Ministry.

The Consultant testified that the Ministry’s decision cost her 70% of her business.

Did the Ministry breach the duty of procedural fairness owed to Kaberwal by failing to hold an oral hearing before making its decision?

The Consultant argued that the Ministry had an obligation to hold an oral hearing before rendering its decision and in failing to do so breached the duty of fairness owed to her.  The Ministry argues that the Consultant was not entitled to an oral hearing.

The Court confirmed that the audi alterum partem principle, which requires a decision maker to provide adequate opportunity for those affected by a decision to present their case and respond to the case against them, does not confer an unqualified right to an oral hearing unless otherwise stipulated by statute.  Rather, what is required is that parties be given the opportunity to put forward their arguments.  Furthermore, unless otherwise prescribed by statute, the content of input rights (i.e. written submissions vs. oral hearing) is at the discretion of the decision-maker subject to the supervisory role of the court to review the propriety of that choice.

Citing Baker v. Canada, the Court noted that the factors relevant to the scope of participatory rights include:

1) the nature of the decision being made and the process followed in making it;

2) the nature of the statutory scheme;

3) the importance of the decision to the individual affected;

4) the legitimate expectation of the person challenging the decision in relation to the procedure to be followed, and

5) the choice of procedure made by the agency itself and institutional constraints particularly where the statute limits the decision-making ability to chose its own procedures.

The Nature of the Decision

The Court found that generally where the credibility of witnesses is considered relevant, its importance to the process often weighs in favour of holding an oral hearing.  If a tribunal’s decision may turn on findings of fact made from conflicting evidence or on the credibility of witnesses, there may be a right to an oral hearing and cross-examination of those witnesses. Where only the credibility of the individual affected is in issue, that party should be heard orally, even though the rest of the hearing may be conducted in writing.  If none of the important facts are in dispute and there is no “accuser” to be questioned, an oral hearing may not be necessary. If there is sufficient evidence on which to make a decision, other than the evidence on which credibility is an issue, an oral hearing is not necessary.

In this case, the Court held that the allegation of fraud was a serious matter based on credibility, that it is generally considered difficult to prove, and that this favored an oral hearing.

The Statutory Scheme

As noted by Court, SINP has no statutory basis and its officials do not exercise any statutory authority.  Its processes, forms, guidelines, criteria, requirements, evaluation and decision making, etc., are all created and governed by broad based ministerial policy.  As such, there is no statutory scheme applicable to SINP and thus no statutory appeal or other safeguarding processes open to the Consultant. The decision rendered was final and decisive, and this favored the granting of an oral hearing.

The Importance of the Decision

There was no question about the importance of the decision to the Consultant.  She lost 70% of her business, and her reputation was ruined.  In the legal and consulting industry, a poor reputation undermines both present and future relationships, referrals and business interests.

Legitimate Expectations

In the absence of a statutory scheme, the Court found that it was unclear what process the Consultant expected the Ministry to follow. There appeared to be no known track record for how a Provincial Nomination Program would conduct an investigation, receive, assess and weigh information provided by those affected, or how to resolve discrepancies of evidence.

Limitations Imposed by Statute

The Court reiterated that despite there being no statutory scheme governing investigations, third party allegations, degree of participatory input and ultimate decision making for the Ministry, the Ministry consciously choose to follow the written submission format without any direct in-person meetings.  There was no suggestion the Ministry possessed any particular expertise in developing its choice of process.


The Court stated:

Balancing the aforementioned factors, [the Consultant] should have been given an in-person hearing. It is unnecessary for the format of the actual hearing to conform to the traditional trappings of the judicial process so long as [the Consultant] had a meaningful opportunity to challenge the evidence and credibility of Carl Hodgson and Roberta Taylor, and a meaningful opportunity to respond.  It was equally important for Kaberwal to have been informed of the precise evidence relied upon by the Ministry in making its findings of fraud.

Interestingly, the Court also found that it could not order SINP to issue a retraction letter to the Consultant’s clients.

Environmental Overview – Accra

The following is a summary of the Environmental Overview of the immigration functions at the Canadian High Commission in Accra (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2013-2014 planning exercise, and is current as of January 2013.


The Canadian High Commission in Accra (“CIC Accra”) provides visa services to residents of Ascension, Benin, Gambia, Ghana, Guinea-Conakry, Liberia, Nigeria (permanent residents only), Sao Tome and Principe, Sierra Leone, St. Helena, Togo, and Tristan da Cunha.

Contrary to popular misconception, CIC Accra has no role in managing the Lagos Visa Office.  Notwithstanding that, since the fall of 2012, an officer from CIC Accra has assisted the Lagos Visa Office in processing temporary resident applications on two occasions for a total period of four weeks.  Upon return from one visit, the officer brought approximately 200 Temporary Resident Visa files from the Lagos Visa Office to CIC Accra.  Original passports were left in the Lagos Visa Office and visas were remotely printed there.

Quality Assurance

The last half of 2012 witnessed several changes to the Immigration Program at CIC Accra.  All permanent resident visas are issued by the Immigration Program Manager to ensure procedures and decision-making are consistent and fair.  Interview waiver citeria have been put in place to better triage and risk-manage Family Class cases and reduce processing times, when previously all cases were called to interview without exception.  The use of DNA tests has been limited to the exception rather than the rule.  Temporary resident processing times have been amended from same-day to five days.

[In 2013], Accra will implement two important quality assurance activities, as follows:

1) Our current inventory of refugee (CR) application is in disarray.  A significant number of files have been in process for many years.  A review of all CR cases in our inventory (approximately 170 persons) will be undertaken to determine if key processing stages were reliable, consistent, timely and procedurally fair.  To this end, a detailed refugee processing checklist will be developed to assess files currently in process and get them back on track and assist staff in processing new applications.

2) Accra has a complicated and aging Business Class inventory of mostly Nigerian applicants (621 persons).  Many of these cases have been or are currently the subject of litigation.

Permanent Resident Program

In 2012, CIC Accra issued 3,286 visas.

The officer/PA team structure that previously existed in the office has been dismantled, with all categories of permanent resident files being managed according to stage of process by a single team of officers, Case Analysts, and PAs, ensuring a degree of randomness in assigning files and better consistency in processing. All permanent resident visas are currently issued by the IPM to ensure procedures and decision-making are consistent and fair and to support shared workload in the office. Interview waiver criteria have been put in place to better triage and risk manage family class cases and improve processing times, when previously all cases were called to interview without exception. Currently, the FS01 CBS in Accra is supervising the processing of all economic and family class applications with the support of two LE06 case analysts and two LE04 program assistants; the DIO in Accra reports to the IPM; the FS02 CBS is managing the processing of all refugee classes.

Economic immigrants represent approximately 49% of CIC Accra’s inventory.  Approval rates in 2012 were 75%.  Processing times for 80% of the total economic class cases finalized in 2012 was 31 months.

CIC Accra’s overall approval rate for the total family class cases in 2012 was 59%.  Processing times for 80% of all family class cases in 2012 was 12 months.

Temporary Resident Program

CIC Accra made changes to its temporary resident processing times in the fall of 2012.

Previously, applications submitted in person were processed on a same-day basis, leading to significant unpredictability in workload pressures and difficulty in prioritising files in other categories. Offering same-day service was out-of-sync with the standards of other missions in the region, where processing times range from eight to 11 days. As the implementation of a VAC in the region will ultimately put an end to same-day service, extending processing times now will smooth that transition for our applicants and help manage client expectations. Advertised temporary resident processing times are now seven to 14 business days for visitors and 14 to 28 business days for study and work permit applications. The additional processing window has provided officers with the opportunity to better triage high-risk files, identify trends, and target cases for anti-fraud verifications.

CIC Accra approved 52% of 5,162 Temporary Resident Visa applications that it processed in 2012.  Applicants with connections to mining and other extractive industries, in particular, are brought to the attention of the Immigration Program Manager is a refusal is being considered so that additional information can be sought form the mission Trade Commissioner.

CIC Accra received 830 study permit applications in 2012, and approved 46% of them.  Eighty percent of all cases were processed in 28 days or less.

Establishing that applicants have sufficient financial support to pay for their studies in Canada is one of the key issues of concern when assessing Study Permit applications submitted in Accra. Officers are beginning to recognise that family and affective bonds extend much further here than they do in the western context, and that it is not unusual for friends and extended relatives to sponsor young people to undertake their studies abroad. Officers have been directed to take this cultural element into account when assessing funding sources. We have also refined our Study Permit application checklist somewhat in the hopes that officers might be able to gather additional information that will boost their confidence when reviewing study permit files. In particular, we have asked applicants to complete a thorough study plan and submit it with their applications so officers can better understand their motivations and aspirations. Our hope is that a more detailed study plan will help officers understand better not only the applicant’s intentions but also the willingness of the extended family to lend support.

CIC Accra processed 217 Work Permit applications in 2012.  The approval rate was 52%, with 80% of cases being processed in 46 days or less.

RIMBits Revealed (July 2010)

The following are some excerpts from the July 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The July 2010 RIMbits on admissibility consisted of eight questions and answers or bulletins.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in July 2010.

Canadian citizen Visiting Forces Act applicant

Q. We ask for your opinion on the process for a Canadian dual citizen and his family who wish to enter Canada under the Act on Visiting Forces at the request of the ________ government. The applicant and spouse currently have official _____  passports. The sons, also dual citizens, have an ordinary ____ passports stating “son of government agent.” With what documentation should the applicant and his sons travel? Obtaining proof of Canadian citizenship for the children could take 14-16 months.

Also, the spouse has no status in Canada. The Foreign Worker Guide indicates that dependents of people who are in Canada under the Visiting Forces Act qualify for an open work permit. As the spouse of a Canadian citizen, is the wife still eligible for a work permit or study permit?

A. The Canadian citizens (principal applicant and sons) could arrive in Canada with their Official passports ______ with no permits or visas; however, the Port of Entry will have to investigate again their status as Canadian citizens. Therefore, I suggest that the applicant and his children be issued Facilitation visas so that CBSA POE will have the full story at their fingertips. The visa-exempt spouse, as accompanying dependent under the Visiting Forces Act, should be issued an open study-work permit.

Permanent residence determinations -accompanying a now-deceased spouse

Q. We need your expertise and clarification on a permanent residence determination dealing with a permanent resident accompanying a Canadian citizen spouse outside of Canada.

The 5-year period of consideration is from _____ to _____ . We determined that the applicant had only spent 171 days in Canada and did not meet the residency obligations. However, until ______ when the applicant’s spouse died, he was accompanying a Canadian citizen.

My understanding for accompanying is that the spouse/common-law partner must be alive. If the spouse or common law partner is deceased and has been deceased for a number of years should we be counting the time spent while alive for residency determinations?

A. Yes, you should count the time the applicant was accompanying a living Canadian citizen. When determining physical presence in Canada, each part of a day in which a person is accompanying a Canadian citizen outside Canada counts as a day in Canada. In this case, the time spent accompanying the Canadian citizen spouse outside of Canada up to and including _______ should be considered.

A similar case can be made for permanent residents who were previously married to Canadian citizens. The period of time where the permanent resident accompanies a Canadian citizen spouse should count towards residency requirements until the date of a legal separation or, if no legal separation exists, the date of the divorce decree.

Medical inadmissibility

Q. I would like to find admissible an applicant that the medical officer has found inadmissible for excessive demand for social services (MOS).

The medical officer indicates that this individual is inadmissible for excessive demand on social services.

I disagree. I am not satisfied that this person is medically inadmissible, and I believe that this decision is mine under the Act and related jurisprudence. However, there are no instructions on how to issue a visa on a case where there is an MOS. I do not plan to send a procedural fairness letter, because I am not satisfied that there is inadmissibility.

A. Ultimately, it is the visa officer that determines if an individual is inadmissible, not the medical officer. If there is, in your opinion, sufficient information on file to counter the excessive demand component of an MOS assessment, then there would appear to be little gained by going through the procedural fairness exercise. You may want to confer with your IPM on whether it is appropriate to waive this administrative step.

For issuing a visa, you can “override” the MOS assessment in CAIPS. It is recommended that you record your argument for visa issuance in CAIPS notes.

OB 63B addresses this issue:


At the end of the process, if the applicant has satisfied the immigration/visa officer that they have the ability and intent to mitigate the cost of the required social services, the immigration/visa officer will enter a positive medical decision code “1” in FOSS or CAIPS, as applicable. Although the medical assessment code will remain unchanged (MOS), CAIPS will permit a Final Decision code “1” (visa issued).

RIMbits Revealed (May 2010)

The following are some excerpts from the May 2010 RIMbits.  RIMbits are messages sent from National Headquarters to missions overseas.  The May 2010 RIMbits on admissibility consisted of seven questions and answers.  I have reproduced three of them for free below.

Please note that the questions and answers below should not be viewed as legal advice.  Rather, they are simply reproductions of how CIC senior management answered specific questions from visa offices in May 2010.

Seized Travel Document

Q) We were notified by the authorities that a permanent resident travelling on a Canadian travel document has been charged with: (1) ______ (2) _____ and (3) _____. According to local authorities, the permanent resident has been released on bail with the condition that she surrender her travel document and that “Stop Orders” are placed with the Immigration exit controls at airports.  We have been formally requested not to issue a new travel document to this permanent resident “until the matters have been disposed.”  

As the charged person is not a Canadian, the Consular Section has referred this case to us.  Although she has not done so at this point, it is possible that in the near future, this permanent resident may request from the visa office a Permanent Resident Travel Document or other documents to facilitate her return to Canada.  Would you have any advice on what we may and may not consider if the permanent resident applies for a PRTD before the judicial proceedings have come to a conclusion? 

(A) The permanent resident’s Canadian travel document has been seized by local authorities in connection with a legal matter.  It is not lost or stolen, and she will get it back when the legal process is completed.  Thus, even if Passport Canada issued replacement travel documents overseas, it would not be inclined to do so in this case.

To issue a PRTD, a travel document is required.  Although the permanent resident might meet residency requirements for a PRTD, her circumstances would preclude a Single Journey Travel Document.  Avoiding prosecution is not the exceptional circumstance usually required for issuance of a SJTD.

IAD-granted special relief overcoming the requirement for an ARC

(Q) The subject arrived in Canada and was accepted as a Convention refugee five years later.  His application for landing was later refused, however, due to multiple criminal convictions.  He was ordered deported at his appeal hearing and the IAD concluded that he was a danger to Canadian society. 

The subject submitted an FC1 application to our office; this application was refused for criminal inadmissibility pursuant to paragraphs 36(1)(a) and 36(2)(a) or IRPA.  Subsequently, the subject was given a pardon and the IAD allowed the appeal.  

We would like to confirm that we are not bound by the IAD’s favourable comments to grant an ARC.

(A) Although the IAD does not have the jurisdiction to consider the requirements to obtain an ARC on its own, it does have the jurisdiction through its authority under A65 and A67(3) to consider whether special relief should be granted to members of the family class.  Special relief may overcome the requirement to obtain an ARC.  In this case, the IAD found that the applicant was a member of the family class.  The requirement to obtain an ARC was put before the IAD and consequently, the IAD was required to consider this in rendering its decision.

Hong Kong “Spent” Criminal Convictions

(Q) From time to time we see police certificates which list prior convictions with the note that they are considered spent according to s. 2(1) of the Hong Kong Rehabilitation of Offenders Ordinance.  Does the Hong Kong ordinance have the same effect as the Canadian and UK provisions?

(A) A spent conviction in Hong Kong is not equivalent to a pardon in Canada.  The equivalent offence under the Canadian Criminal Code should be looked at in determining admissibility as usual.

The issue was raised and settled in Federal Court in “Kan v. Canada”.

Briefly, in the Burgon decision (referred to in Kan), the courts ruled that British legislation did create the same condition as a pardon and that individuals rehabilitated under this legislation were not inadmissible.  The argument was made in Kan that the Hong Kong ordinance had the same effect.  However, the Federal Court determined that subsection 2(1) of the Rehabilitation of Offenders Ordinance is not equivalent to a pardon in Canada because it only has effect until the individual is again convicted of an offence in Hong Kong.  Further, subsection 2(1) is subject to numerous specified exceptions and does not have the effect of “cleansing the individual of any stain that the conviction caused” (Burgon).

Applicants may inadvertently incorrectly declare that they do not have any convictions believing that a “spent” convictions means that it no longer exists.

Changes to the Foreign Worker Program, Parent Sponsorship Program, and the Age of Dependency

On April 29, 2013, the Government of Canada announced that numerous changes were being made to the Temporary Foreign Worker Program, particularly the Labour Market Opinion (“LMO“) program.  While most of the changes will be phased in, some of them, including the suspension of the Accelerated Labour Market Opinion (“ALMO“) program, took effect immediately.

Just over one week later, on May 10, 2013, Citizenship and Immigration Canada (“CIC“) announced that the Parent and Grandparent Sponsorship Program (the “P&G Sponsorship Program“) would reopen in 2014 and accept 5,000 applications in its first year.  Several changes have been made to the program.

Finally, CIC also announced that it would soon reduce the age of dependency for all immigration programs from 22 to 18. In other words, only children under the age of 19 will be able to accompany their parents when they immigrate to Canada.

Changes to the Temporary Foreign Worker Program

There are numerous, significant changes being made to the Temporary Foreign Worker Program.  All of the changes appear aimed at making LMOs more difficult to obtain.  

  • Effective April 29, 2013, the ALMO has been temporarily suspended pending review.
  • Effective April 29, 2013, Human Resources and Skills Development Canada (“Service Canada”) ended the Variation to the Prevailing Wage Rate.  In the past, employers had the flexibility to pay temporary foreign worker wages up to 15% below the prevailing wage for a higher-skilled occupation, and 5% below the prevailing wage for a lower-skilled occupation, if the lower wage was the same as that being paid to their Canadian employees in the same job and in the same location.  Accordingly, as the Variation of the Prevailing Wage Rate has been cancelled, to obtain a LMO employers must pay their foreign workers the prevailing wage rate regardless of what their Canadian employees make.
  • The Government of Canada has introduced legislation which would increase its ability to suspend and revoke work permits and LMOs if it feels they are being misused. Service Canada will be able to suspend, revoke or refuse to process a request for an LMO if, for example, new information becomes available indicating that the entry of a temporary foreign worker would have a negative impact on the labour market, or if it is determined that the LMO was fraudulently obtained.  Once a LMO is revoked, then CIC will have the ability to revoke work permits issued pursuant to it.
  • Questions are being added to LMO application forms to ensure that the program is not being used to facilitate the outsourcing of Canadian jobs.
  • Employers who employ foreign workers will soon be required to have a plan in place to transition to a Canadian workforce over time. The requirements of the transition plan will vary depending on whether the employer is seeking to fill a lower- or higher-skilled position, the type and size of the industry and the regional unemployment rate, as well as the particular job being advertised. The employer will have to submit the transition plan to Service Canada as part of its LMO application.  A review of the employer’s progress against the transition plan will occur if the employer applies for a future LMO.
  • The Government of Canada will be increasing the cost of work permit applications, and introducing fees to LMO applications.  The exact amounts have not yet been announced.
  • Employers will be prohibited from identifying a language other than English or French as being a job requirement during recruitment.  Exemptions will only be given in specialized cases where a foreign language is an essential job requirement. In these cases, the onus will be on the employer to explain why a foreign language is a requirement of the job.  Although this change has not yet officially taken affect, the Service Canada Job Bank is reportedly refusing to post job advertisements which contain a language other than English or French.

Changes to the P&G Sponsorship Program

In 2011, CIC suspended the P&G Sponsorship Program.  It will reopen in 2014, and CIC will accept 5,000 applications to the program that year.

People who were previously considering sponsoring their parents or grandparents to immigrate to Canada should be aware of the following changes to the program:

  • The length of the sponsorship undertaking is being increased from 10 years to 20 years.  This means that sponsors will be responsible for repaying any provincial social assistance benefits paid to their parents or grandparents for the first 20 years after they immigrate to Canada.

  • The minimum necessary income for sponsoring parents and grandparents is being increased by 30%.  The amount of income a sponsor will require will depend on the number of persons who the sponsor will be supporting.  For example, a sponsor with a spouse and two children who intends on sponsoring two parents will be required to earn approximately $72,000.

  • Prospective sponsors will need to show that they have met the income requirement for the three years prior to submitting the sponsorship application, rather than one.

  • Evidence of income will be confined to documents issued by the Canada Revenue Agency.

Reducing the Age of Accompanying Dependants

Currently, the children of immigrants may immigrate to Canada with their parents if they are under the age of 22.  As well, young adults over the age of 22 who have been continuous full-time students since turning 22 may also accompany their parents.

This will soon change.  The maximum age of dependants will be reduced to 18 years of age for all immigration programs.  There will be no exception for full-time post-secondary students.  The only exception will be for those who are financially dependent on their parents due to a mental or physical disability.

More information about the changes to the Temporary Foreign Worker Program can be found here.

More information about the changes to the P&G Sponsorship Program can be found here.

More information about the changes to the age of dependency can be found here.