The Canadian Visa Requirement for Mexican Citizens – A Policy which is No Longer Needed

During Canada’s 2015 federal election, the Liberal Party of Canada, led by Justin Trudeau, promised that if they were elected government that Canada would lift its visa requirement on Mexico.  This campaign promise is reflected in now Prime Minister Trudeau’s mandate letter to John McCallum, the Minister of Immigration, Refugees, and Citizenship, which states that one of Minister McCallum’s top priorities will be to lift the visa requirement on Mexico.

The decision by the previous Conservative Government of Canada in 2009 to implement a visa requirement for Mexican citizens was extremely controversial.  It is difficult to determine whether it was a good public policy decision because of the numerous factors involved, each with corresponding benefits and costs.  It is clear, however, that the implementation of the visa requirement did achieve the government’s primary objective, which was to dramatically reduce refugee claims from Mexican citizens in Canada.  However, subsequent changes to Canada’s immigration refugee system, likely mean that the visa requirement is no longer necessary to achieve this objective.

The Visa Requirement

Canada imposed a visa requirement on Mexican citizens on July 14, 2009.  The Canadian government stated that it did so to dramatically reduce the number of unfounded refugee claims made by Mexican nationals due to their visa-free access to Canada.  Mexico was at the time the top source country for asylum claimants in Canada, and had been so since 2005.

The imposition of the visa requirement imposed a significant burden on Mexican citizens wishing to travel to Canada.  Instead of being able to simply board an airplane and travel to Canada, Mexican citizens now prior to travel have to apply for a temporary resident visa at a Canadian consulate, or online.  In addition to completing numerous forms, as of writing Mexican nationals are required to provide proof of financial support, including copies of bank statements for three months, employment verification, and other proof of connections to Mexico. Where a Canadian invitee will be paying for the trip, that individual is required to provide proof of funds.

Many individuals and organizations, including the Canadian government, predicted that the imposition of the visa requirement would result in a dramatic decrease in the number of Mexicans who travelled to Canada.  In 2008, there were over 270,000 entries by Mexican citizens into Canada.  When the Canadian government imposed the visa requirement, it stated that it anticipated that approximately 150,000 Mexican citizens would apply for temporary resident visas annually.  According to the Tourism Industry Association of Canada (the “TIAC”), the number of Mexicans visiting Canada plummeted by 50% after the implementation of the visa requirement, although the number of Mexicans visiting Canada has now reached pre-2009 levels.  The TIAC estimates that an additional 320,000 Mexicans would have visited Canada and spent over $465,000,000.00 from 2009-2014 were it not for the visa requirement.  The impact on trade has been forecasted to be in the billions.

However, if the Government of Canada’s primary objective in imposing the visa requirement was to reduce the number of Mexican refugee claims in Canada, then the decision was a resounding success.  In 2009 there were 7,592 asylum claims from Mexican nationals.  By 2012, this number had fallen to 321.  Mexico during this period went from being the highest source country for asylum claims in Canada to the 22nd highest country in 2012.  At the same time, the percentage of Mexican claims that were approved increased from 11% in 2010 to around 20% in 2013.

CIC data shows:

Year

Intake Finalizations Acceptance Rate (%) Rejection Rate (%) Abandon Rate (%)

Withdrawn / Other Rate (%)

2007

7,162 3,662 11 59 8 23

2008

9,472 5,707 11 60 6 24

2009

7,592 6,097 8 56 7 29

2010

1,202 5,880 11 59 6

24

2011 651 6,099 17 69 5

10

2012 321 3,041 19 71 4

7

2013 (Jan – Jun) 36 682 20 67 5

9

 

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Indeed, by 2013-2014 Mexico was a minuscule percentage of Canadian refugee claims.

Capture

It is important to note that CIC data also shows that 57% of Mexican asylum claims made in the first quarter of 2010-2012 were made by individuals who entered Canada prior to the visa imposition.

Indeed, based on the previous refugee acceptance rates prior to the imposition of the visa requirement for Mexicans, in June 2013 CIC estimated that without the visa requirement, Canada would have received an additional 19,895 asylum claimants from July 2009 through December 14th, 2012, of which 2,493 claims would have been accepted, 12,331 rejected, and 5,081 abandoned or withdrawn.  The cost to Canada would have been immense.

When Minister McCallum lifts Canada’s visa requirement against Mexico there will likely be those who suggest that it was never necessary, or, as the Globe and Mail did in 2014, that it was other changes to Canada’s immigration and refugee system that actually caused the drop in Mexican asylum claims.  These changes, however, happened after the steep decline occurred.  Having said that, while a review of the above data makes it clear that it was the imposition of the visa requirement that led to the steep decline in Mexican refugee claims, the previous government’s subsequent changes will hopefully ensure that the lifting of the visa requirement does not cause the situation to revert back to what it was in 2008.

Changes to the Immigration and Refugee System

After the imposition of the visa requirement the Canadian government made several changes to Canada’s immigration and refugee system which will likely ensure that the number of unfounded asylum claims by Mexicans in Canada does not revert to 2008 levels.  These are the decision to shorten the time that refugee claims make, the prohibition on submitting permanent residence applications based on humanitarian & compassionate grounds within one year of the refusal of a refugee claim, the designation of Mexico as a safe country of origin, and the upcoming implementation of the Electronic Travel Authorization.

On June 28, 2012, Bill C-31, the Protecting Canada’s Immigration Act, received Royal Assent.  Prior to the implementation of Bill C-31, the average Mexican refugee claim that was not withdrawn or abandoned took over eighteen months to process.  During this time the claimants would be allowed to work anywhere in Canada, and if their claim was refused they could submit an application for permanent resident status on humanitarian & compassionate grounds, citing their establishment in Canada as a positive factor in the application.  As a result of Bill C-31, the amount of time that it took was reduced to sixty days. As well, most asylum seekers became prohibited from submitting humanitarian & compassionate permanent residence applications.

Then, on February 13, 2013, the Canadian government designated Mexico as being a safe country of origin. This designation further reduced the amount of time that it takes to process a Mexican refugee claim to 45 days for those who make a refugee claim at a port of entry, and 30 days after referral for those who make a claim at an inland immigration office. As well, Mexican refugee claimants became ineligible to apply for work permits.  (The decision to designate Mexico as being a safe country was also controversial, and the Liberal government may eventually remove Mexico from the designated list.  Prime Minister Trudeau’s mandate letter to Minister McCallum states that he is to “establish an expert human rights panel to help you determine designated countries of origin,” and it may mean that this is a hint that Mexico may soon be removed.)

Finally, as of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a temporary resident visa to enter Canada will be required to obtain an Electronic Travel Authorization before they travel to Canada by air.  As such, even without the visa requirement, it will no longer be the case that Mexican nationals will simply be able to purchase tickets and board planes to travel to Canada.  Rather, they will be unable to board commercial airlines to Canada unless the airlines first confirm that they have permission to enter Canada.  Having said that, the requirements will be much less onerous than they are currently.

Although it is impossible to be 100% certain, the above changes should prevent a spike in the number of unfounded refugee claims by Mexican nationals in Canada when Canada lifts the visa requirement.

What About Brazil, Romania, and Bulgaria?

If Prime Minister Trudeau fulfils his campaign promise, his decision to lift the visa requirement against Mexico should not turn into a partisan affair.  In fact, the previous Conservative Government of Canada’s 2015 Economic Action Plan, the Conservatives promised that in 2015-16 that Canada would lift the visa requirement against Mexico, Brazil, Romania, and Bulgaria.

Indeed, if Prime Minister only lifts the visa requirement against Mexico, and not against Brazil, Romania, and Bulgaria, the question should be why just Mexico.


eTA Regulations Amended

On April 13, 2017 the Government of Canada introduced several regulatory amendments to the Electronic Travel Authorization (“eTA”) regime.  The changes to the eTA program came into effect on May 3, 2017.  Before reading about the changes, those who are unfamiliar with the eTA should read my previous posts on this topic titled ETA Regulations Announced and Electronic Travel Authorizations.

In brief, the eTA is an electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers who are visa-exempt must apply online for an eTA by providing basic biographical, passport and personal information. An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review.

It is similar to ESTA in the United States.

Brazil, Bulgaria and Romania

Effective immediately, citizens of Brazil, Bulgaria, and Romania no longer need to apply for temporary resident visas to visit Canada and can instead apply for eTAs if they have held a temporary resident visa at any time during the 10-year period immediately preceding the day on which they make their application or hold a valid United States nonimmigrant visa on the day on which they make their application.

However, Brazilians, Bulgarians and Romanians will still generally need a visitor visa if driving to Canada from the U.S. or arriving by bus, train or boat, including a cruise ship from Alaska (even if someone is not leaving the ship).

This requirement for a visa will be lifted for Bulgarians and Romanians on December 1, 2017.

There is no indication when it will be lifted for Brazilians.

As remains the case for all people who require visas to visit Canada, Brazilians, Bulgarians and Romanians will not need a visa to return to Canada by land if they travel to the United States, and only the United States, and return to Canada within the period authorized by their initial entry into Canada, which is typically six months but can be longer or shorter in certain circumstances.

Automatic eTA Applications

The regulatory amendments also clarify that work and study permit applications, and work and study permit renewal applications, will also be considered eTA applications. This will save many foreign nationals from having to submit a separate eTA application.

Ineligibility 

Previously, an officer could only cancel an eTA if the officer determined that a person was inadmissible to Canada or part of an irregular arrival to Canada.

Now, a foreign national who holds an eTA becomes ineligible to hold such an authorization to enter Canada if, following its issuance, the person either:

  1. becomes the subject of a declaration that they were part of an irregular arrival to Canada;
  2. is issued a Temporary Resident Permit to overcome an inadmissibility to Canada;
  3. becomes the subject of an admissibility report;
  4. becomes the subject of a removal order;
  5. withdraws an application to enter Canada at a port of entry;
  6. is refused a temporary resident visa becomes it is determined that they are unlikely to leave Canada by the end of their authorized stay;
  7. is refused a work permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
  8. is refused a study permit because it is determined that they are unlikely to leave Canada by the end of their authorized stay;
  9. for citizens of Brazil, Bulgaria and Romania it is discovered that they did not actually hold an American visa or that they had a previous Canadian visa.

In any of these circumstances, an officer may cancel the person’s eTA.

 

 

 

 



Religious Workers and Work Permits

There are generally two types of religious workers who seek entry to Canada to work. The first are clergy (which includes Buddhist monks, Sikh granthis, rabbis, priests, preachers, pastors, etc.) whose employment in Canada will consist mainly of preaching doctrine, presiding at religious functions, or providing spiritual counselling.  Section 186(l) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that such people may work in Canada without a work permit.  IRPR r. 186(l) states:

186. A foreign national may work in Canada without a work permit

(l) as a person who is responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling;

Generally, applicants applying to work in Canada without a work permit under IRPR r. 186(l) need to demonstrate that they have a genuine offer of employment from the religious denomination that seeks to employ them, that the organization employing them can provide for their care and support, and that they are able to minister to a congregation under the auspices of that congregation’s denomination.

To demonstrate this, applicants should provide the following documents, where applicable:

  • Certificate of Incorporation of the employer;
  • Proof of registration as a charity or non-profit;
  • Statement from the religious organization showing:
    • the date and place of founding of the religious organization;
    • length of time in continuous operation in the province or territory of destination;
    • description of the structure of the organization;
    • copies of relevant corporate and society documents;
    • financial statements;
    • copy of residential lease if a residence is not supplied to the foreign national; and
    • other documents which establish the relationship between the religious denomination and the religious worker.

The second type of religious workers are people who are entering Canada to perform charitable or religious work.  Depending on the circumstances, such individuals may be exempt from the Labour Market Impact Assessment (“LMIA“) process, if they are carrying out duties for a Canadian religious or charitable organization and the duties themselves are of a charitable or religious nature (e.g., teachers assistants supplied by a charitable organization to a school because funds were not available to the school to hire).  These individuals can apply for a work permit pursuant to IRPR r. 205(d), which provides that:

205. A work permit may be issued under section 200 to a foreign national who intends to perform work that

(d) is of a religious or charitable nature.

The Temporary Foreign Worker Guidelines (“TFWG“) provide that an individual may be considered to be engaging in charitable or religious work if they meet the following conditions:

  • the duties performed by the individual must be of a charitable or religious nature that help to relieve poverty, or benefit the community, educational or religious institutions. As well, IRCC has updated its manual to specifically include camps that provide programs and services to children and youth who have physical or mental disabilities or who are economically disadvantaged;
  • the organization or institution which is sponsoring the foreign worker will not, itself, receive direct remuneration from any source on behalf of, or for, the services rendered by the foreign worker; and
  • the work goes above and beyond normal work in the labour market, whether remunerated in some manner or not, for example: organizations which gather volunteer workers to paint or repair the houses of the poor may qualify, provided that the work would not otherwise be done, i.e. if the recipients of this work are not able to hire a professional or do the work themselves. L’Arche, which relies on people to live full-time in a group home with people who have developmental disabilities; (workers in the homes are remunerated, but they are committed to taking care of the disabled people on almost a 24-hour basis.) persons who are giving their time to community or religious organizations in a position which would not represent a real employment opportunity for Canadians or permanent residents. (Though it is not mandatory, such work normally entails a requirement for the foreign national to be part of or share the beliefs of the particular religious community where they will work, or to have the ability to teach or share other religious beliefs, as required by the employer..)

The following is an example of an approval under IRPR r. 205(d).  I note that this was not one of my files, as it is not my practice to post my files on this blog.  Rather, this example of an approval was obtained through an Access to Information Act request.

charitablework

It is important to note that a non-profit organization is not necessarily a charitable one.  A charitable organization has a mandate to relieve poverty, or benefit the community, educational, or religious institutions.  While most of these cases are linked to registered charities, being a registered charity with the Canada Revenue Agency is not a mandatory requirement.  Such organizations will face greater scrutiny, however, in determining whether their mandate is to help relieve poverty, benefit the community, educational, or religious institutions.

Of course, foreign nationals seeking to enter Canada to perform religious work may also apply for a Labour Market Impact Assessment if they do not meet one of the above two requirements.

Tips

The following are 6 useful tips for foreign nationals who are considering entering Canada to perform religious work.

  • When you are applying make it clear that you are applying under either IRPR r. 186 or under IRPR r. 205.  Even if you are eligible for Permit A, but you request Permit B, then Immigration, Refugees and Citizenship Canada is not under any duty to provide you with Permit A: Sharma v. Canada (Citizenship and Immigration), 2014 FC 786
  • While religious workers from visa-exempt foreign countries do not need to apply for a visa from outside Canada to work in Canada without a work permit under R186L, they do need to satisfy Port of Entry officers that they meet the requirements of R186L.
  • One of the larger issues that applicants face is whether the employer can support them in Canada.  If the religious organization is small, it is not uncommon for officers to request supporting financial documents.
  • Even if you are eligible to work in Canada without a work permit pursuant to IRPR r. 186(l) you may want to obtain one nonetheless.  Some advantages of having a work permit include the possibility of open work permits for spouses and children, access to provincial health care, dependent children being exempted from having to obtain a study permits, and more.
  • There are several documents which can be useful to show the genuineness of the job offer, including a certificate of incorporation, proof of registration as a charity under the Income Tax Act, copies of the Constitution, financial statements, and proof of ordination.
  • I always recommend that people at least provide a letter from the Canadian religious organization.  Statements from the religious organization should mention the date and place of founding of the religious organization, the length of time in continuous operation in the province, a description of the structure of the organization, the size of the adult congreation, the number of clery employed, the address of the regularl emeting place, schedule fo worship.

Permanent Residency

It is important that people who work under IRPR r. 186(l) not exceed the duties described in that section, which are being responsible for assisting a congregation or group in the achievement of its spiritual goals and whose main duties are to preach doctrine, perform functions related to gatherings of the congregation or group or provide spiritual counselling.  In Kaur v. Canada (Citizenship and Immigration), for example, the Federal Court found that a religious worker who was working in Canada under IRPR r. 186(l) had exceeded her duties by essentially being a religious teacher in a classroom setting at a religious institution. The Federal Court accordingly found that the work experience was unauthorised, and that the foreign national could not count that work experience towards the Canadian Experience Class.


Understanding Dual Intent

It is not uncommon for us to meet with clients who when applying for temporary residency are scared to admit anything that could convey a future desire to immigrate to Canada.  However, Citizenship and Immigration Canada (“CIC“) recognizes that having two intents (one temporary and one permanent) is legitimate.  Its policy on this is commonly known as “dual intent.”

Continue reading “Understanding Dual Intent”


Visa Requirement Removed for Taiwan

Effective November 22, 2010, holders of ordinary Taiwan passports that contain a personal identification number and are issued by the Ministry of Foreign Affairs in Taiwan will no longer require a Temporary Resident Visa (TRV) to visit Canada.
Continue reading →


Canadian Visa Requirements for Lithuania and Poland

On July 19, 2010, Citizenship and Immigration Canada released Operational Bulletin 221 – Passport Requirements for Citizens of Lithuania and Poland. The bulletin addresses the acceptability of non e-passports issued by the Governments of Lithuania and Poland.

On January 1, 2009, Canada introduced a regulatory amendment for nationals of Lithuania and Poland as a requirement to benefit from a visa exemption for individuals traveling to Canada on an e-passport.  People traveling on an e-passport would not require a visa, while those who did not would.

Electronic Passport

Canada also indicated that effective January 1, 2011, it would restrict all travel to Canada so that only Lithuanians and Poles who possessed e-passports would be admissible.

Operational Bulletin 221 seems to cancel the January 1, 2011, proposed restriction. Nationals that hold e-passports will continue to enjoy visa-free access to Canada, however, those that don’t hold electronic passports will be able to apply for a temporary resident visa.


Canada Imposes Visas on Five New Countries

Canada has imposed visa requirements on five new countries.  The countries are St. Lucia, St. Vincent, Namibia, Botswana, and Swaziland.

In its press release the government stated that the reasons for the imposition of the visa requirement on these countries were to:

  • Reduce the risk that individuals engaged in organized crime or the trafficking of persons could gain entry to Canada, and to address concerns over fraudulent documents.
  • Address the issue of unreliable travel documents from St. Lucia and St. Vincent because criminals from these countries can legally change their names and acquire new passports. In some instances, people who were removed from Canada as security risks later returned using different passports.

Refugee Data

Of course, the unspoken reason behind any decision to impose a temporary resident visa requirement on the country is that the government is concerned that people will not leave Canada at the end of their authorized stay, and in some cases claim refugee status.

Data from the Canadian Council of Refugees confirms that concern over refugee claims was likely a factor in imposing visa requirements on at least two of the above-mentioned countries.

In 2011, the Immigration and Refugee Board decided, or claimants abandoned, 824 refugee claims for individuals from Saint Vincent.  Indeed, this small island nation with a population of 120,000 was the 8th highest source country for refugee claims in Canada.  Of the 824 individuals, 76 abandoned their claims.  Only 38.5% of the remaining claims were accepted, which was below the 2011 global average.

To put the 824 individuals into perspective, in 2011 almost 0.7% of Saint Vincent’s population had a refugee claim decided in Canada.

There was also a large number of refugee claims (604) from Saint Lucia, another small Caribbean nation with a population of 176,000, and the 12th largest source country of refugee claimants (between much larger India and Pakistan)

There were less claims from the three African countries that now have temporary resident visa requirements (140 claims from Namibia, 148 claims from Botswana, and 39 claims from Swaziland).  However, it is worth noting that these three countries were the last three African countries to have visa requirements imposed on them, and the thought process at CIC may simply have been to round out the continent.

Procedure

Applicants from St. Lucia and St. Vincent will be required submit their visa applications by mail or in person to the Canadian visa office in Port of Spain, Trinidad and Tobago. Applications will be accepted by the visa office in Pretoria, South Africa, for those from Namibia, Botswana and Swaziland.

Hopefully processing will be fast, because people from St. Lucia, St. Vincent, Namibia, Botswana, and Swaziland with valid work permits and study permits who are currently outside of Canada (and not in the United States – with some exceptions) will need to apply for visas before they can enter or return to Canada.

I sure feel for students who went home for summer holidays thinking that they would easily return in September for school, and will now likely miss a substantial period of their semester.