Revocation and Statelessness after Budlakoti

Some of the more controversial sections of Bill C-24, The Strengthening Canadian Citizenship Act (“Bill C-24”), are its revocation provisions.

Bill C-24 will create a new s. 10(2) of the Citizenship Act which will state that:

Revocation by Minister — convictions relating to national security

(2) The Minister may revoke a person’s citizenship if the person, before or after the coming into force of this subsection and while the person was a citizen,(a) was convicted under section 47 of the Criminal Code of treason and sentenced to imprisonment for life or was convicted of high treason under that section;

(b) was convicted of a terrorism offence as defined in section 2 of the Criminal Code — or an offence outside Canada that, if committed in Canada, would constitute a terrorism offence as defined in that section — and sentenced to at least five years of imprisonment;

(c) was convicted of an offence under any of sections 73 to 76 of the National Defence Act and sentenced to imprisonment for life because the person acted traitorously;

(d) was convicted of an offence under section 78 of the National Defence Act and sentenced to imprisonment for life;

(e) was convicted of an offence under section 130 of the National Defence Act in respect of an act or omission that is punishable under section 47 of theCriminal Code and sentenced to imprisonment for life;

(f) was convicted under the National Defence Act of a terrorism offence as defined in subsection 2(1) of that Act and sentenced to at least five years of imprisonment;

(g) was convicted of an offence described in section 16 or 17 of the Security of Information Act and sentenced to imprisonment for life; or

(h) was convicted of an offence under section 130 of the National Defence Act in respect of an act or omission that is punishable under section 16 or 17 of the Security of Information Act and sentenced to imprisonment for life.

In order to comply with international conventions regarding the prevention of statelessness, Bill C-24 also introduces to the Citizenship Act a new section 10.4 which states:

Restriction

10.4 (1) Subsections 10(2) and 10.1(2) do not operate so as to authorize any decision, action or declaration that conflicts with any international human rights instrument regarding statelessness to which Canada is signatory.

(2) If an instrument referred to in subsection (1) prohibits the deprivation of citizenship that would render a person stateless, a person who claims that subsection 10(2) or 10.1(2) would operate in the manner described in subsection (1) must prove, on a balance of probabilities, that the person is not a citizen of any country of which the Minister has reasonable grounds to believe the person is a citizen.

The idea of revoking citizenship is a controversial one, and there are certainly strong arguments that can be made for and against.  What is interesting, however, is how the Government of Canada and Citizenship and Immigration Canada (“CIC“) have gone to great lengths to say that it is only “dual citizens” who risk having their citizenship revoked.  Despite Bill C-24 mentioning that revocation will not apply where statelessness occurs, the phrase “stateless” rarely appears in CIC press releases.  “Dual citizen” does.

The cynic in me would suspect that this is because the notion of “dual citizenship” applies to a small percentage of the Canadian population (some 863,000 out of 32,000,000 people, according to the 2006 census) who voluntarily hold multiple citizenships.  By stating repeatedly that Bill C-24’s revocation provisions only apply to dual nationals, the Government of Canada and CIC can thus assure the overwhelming majority of Canadians that they do not have to worry that the revocation provisions of Bill C-24 will ever apply to them.

But should they worry?

The Jews and Israel, as an Example

After Bill C-24 was introduced into the House of Commons, several people expressed concerns that the number of people who could face revocation of their citizenship might be much broader than what the Government of Canada was asserting.  Several lawyers, for example, expressed concern that the revocation provisions could technically apply to most Jewish Canadians because of Israel’s Law of Return.

Robin Seligman, an immigration lawyer in Ontario, for example, told the House of Common’s Standing Committee on Citizenship and Immigration (the “Committee”) that:

Looking around at the names in this room, I can tell you that most people here probably have a claim. It affects people that have Italian parents, British parents, U.K. parents, Chinese parents, and of particular concern is that every Jewish person in Canada has the right to move to Israel and claim Israeli citizenship. In effect—and I’ve provided materials on the right of the law of return—every Jewish person in Canada can be impacted by this legislation, because they could claim status in Israel.

Ms. Seligman’s opinion was not unanimously shared.  Addressing what Ms. Seligman stated, Simon Fogel, the Chief Executive Officer for the Centre for Israel and Jewish Affairs, said before the same committee that Bill C-24’s revocation provisions would not apply to most Jewish Canadians, and stated:

This is not the case.

According to the UN 1954 Convention relating to the Status of Stateless Persons, a stateless person is defined as someone who is not considered as a national by any state under the operation of its law. The UN High Commissioner for Refugees has clarified that the convention does not ask whether a person should or could be a national of a particular state based on its legislation, but rather whether the person is a national of another state. Israel does not consider Jews in Canada to be nationals of the state under the Law of Return; rather, they have a legal right to become naturalized as Israeli citizens through a voluntary immigration process subject to certain restrictions

For a Canadian Jew to be considered an Israeli national, they would first have to immigrate to that country and be certified as a new immigrant.

The possibility to become an Israeli citizen does not equate to dual nationality for Canadian Jews, according to the UN convention on statelessness, or according to Bill C-24. Were the minister to seek the revocation of a Jewish Canadian citizenship, the individual facing revocation, you’d only prove they are not a citizen of another state—be it Israel, the United States, the U.K., or anywhere else—in order to prevent the revocation due to Canada’s international obligations regarding statelessness. This is no different for Jews than for any other Canadian citizen. As long as Jewish Canadians are not dual citizens and do not commit one of the prescribed offences, there would be no ability for the minister to revoke their citizenship.

However, while it’s a right, it’s not an obligation. For example, I’m a Canadian-born, Montreal-born Jew. I’ve been to Israel more than a few times in my life. I carry a Canadian passport because I was born in Canada. I do not carry an Israeli passport. I’m not a citizen of Israel, because I haven’t made application to be a citizen of Israel. So there are no circumstances under which I as a Jew, as a Canadian citizen, could have my citizenship revoked by virtue of being a national of another country, be it Israel or any other country.

For the purpose of this blog piece, it is interesting to note that Mr. Fogel felt that it was necessary to reassure the Committee, and indirectly Canadian Jews, that they would not be potentially encompassed by Bill C-24’s revocation provisions.  However, is he right?

The Budlakoti Decision

On June 8, 2015, the Federal Court of Appeal issued its decision in Budlakoti v. Canada (Citizenship and Immigration), 2015 FCA 139 (“Budlakoti“).  Although the decision does not pertain directly to Bill C-24, the Federal Court of Appeal’s pronouncements on what “statelessness” means support the assertion that Bill C-24 will encompass a much broader range of the Canadian population than what the Government of Canada has been saying.

Mr. Budlakoti was born in Canada to parents who were employees of the Indian High Commission.  As a result of his parents’ employment, he could not be conferred citizenship under Canada’s Citizenship Act.  Mr. Budlakoti never applied for Indian citizenship, and India does not consider him to be a citizen.  Mr. Budlakoti argued at the Federal Court of Appeal that the Canadian government not considering him to be a citizen rendered him stateless.

Despite Mr. Budlakoti not having citizenship in any country, the Federal Court of Appeal disagreed that he was stateless.  The court stated:

It is true that as a result of the facts described above, the appellant is not recognized as a citizen of any country at the present time.

However, the Federal Court of Appeal then went on to state that:

But that is not statelessness in the international law sense. Under Article 1 of the 1961 Convention on the Reduction of Statelessness (acceded to by Canada on July 17, 1978), a person is stateless only where the person does not have national status or citizenship in Canada and the person is “otherwise stateless”—i.e., as a legal or practical matter the person cannot get citizenship or national status elsewhere.

On the state of the evidence before us, India is an adequate and effective forum for the appellant. The appellant has considerable connection with India. The Board found he was born to two Indian nationals while they were working for officials with the Indian High Commission. This raises the apprehension that the appellant could be a national of India by birth and that he may apply for Indian national status or citizenship. Many states grant national status or citizenship in circumstances such as these. If Indian authorities grant the appellant national status or citizenship, any alleged statelessness would disappear.

On the record before us, the appellant has not shown any legal or practical obstacle to acquiring national status or citizenship in India. Nothing has been placed before us that would suggest that a person born in Canada to two Indian nationals working for officials with the Indian High Commission cannot apply for Indian national status or citizenship or that, as a legal matter, India would deny the appellant national status or citizenship.

In attempting to prove statelessness for later administrative or legal proceedings, the appellant conceded at the hearing of the appeal that the best proof that India will not grant national status or citizenship is for him to apply to the Indian authorities and be refused. But the appellant has never applied to those authorities.

To briefly summarize the above, the Federal Court of Appeal found that Mr. Budlakoti was not stateless because it was reasonable to believe that he could acquire Indian citizenship, and he had not shown that he could not through a refused Indian citizenship application.

The Implication

If the Federal Court of Appeal’s interpretation of statelessness as articulated in Budlakoti apply to Bill C-24’s revocation proceedings, then the implications are clear.  Most Canadian Jews could be encompassed by Bill C-24’s revocation provisions given Israel’s Law of Return.  As Ms. Segilman stated before the Committee, the same could be true for people that have Italian parents, British parents, U.K. parents, Chinese parents, etc.

My point is not to argue that Bill C-24’s revocation provisions are bad, or that people who commit acts of terrorism or other significant breaches of national security should not have their citizenship revoked.  Rather, it is to stress that it is important that the debate occur within the proper context, and that in light of Budlakoti it is disingenuous to continue saying that the revocation provisions definitely only affect dual nationals. It is easy to support legislation that only affects “the other.”  It becomes a much more interesting and genuine analysis when you realize that the legislation could potentially apply to you.


Canada to Change Citizenship Requirements

On February 6, 2014 the Government of Canada introduced Bill C-24, The Strengthening Canadian Citizenship Act. If passed, Bill C-24 will significantly change the requirements for Canadian citizenship.  Prospective citizenship applicants who may not meet the new requirements once Bill C-24 passes are encouraged to apply for Canadian citizenship as soon as possible.  The new residency provisions described below will come into effect on June 11, 2015.

The following is a summary of the main changes that the Government of Canada is introducing.

Residence and other Basic Requirements

Under Canada’s current system, a permanent resident can apply for Canadian citizenship if he/she has resided in Canada for three out of the four years preceding the citizenship application.  Because the definition of “residence” is not defined, it has been possible for permanent residents who have not been physically present in Canada for three out of four years to obtain citizenship if they could show substantial ties to Canada.

As well, each day that an applicant lawfully resides in Canada before becoming a permanent resident counts as a half-day towards the residency requirement.   This means that many people can apply for citizenship 2 years after obtaining permanent resident status.

Finally, Canada’s current citizenship requirements do not require permanent residents to have an “intention to reside in Canada” once they are granted citizenship.  Indeed, it is not uncommon for citizenship applicants to apply for citizenship and then leave Canada during the entirety of the processing of their application.

Under the proposed system, a permanent resident will be able to apply for Canadian citizenship if he/she has been physically present in Canada for four out of the six years preceding the citizenship application, rather than three out of four.  Applicants will also be required to have a minimum of 183 days of physical presence per year in four out of the six years preceding the application. Only the time that someone is physically present in Canada will count towards both residency requirements.

As well, time spent in Canada as a non-permanent resident will no longer count towards the residency requirement.

Bill C-24 will also introduce the requirement that citizenship applicants demonstrate an “intention to reside in Canada” after they are granted citizenship.  Applicants must maintain this intention during the processing of their citizenship applications.

Finally, permanent residents must have filed Canadian income taxes as required under the Income Tax Act to be eligible for citizenship.

Fees

Citizenship and Immigration Canada is increasing the adult application from $100.00 to $300.00.  As well, there will be a $100.00 right of citizenship fee.

Citizenship and Language Test

Under the current system, adults aged 18-54 must meet language requirements and pass a knowledge test.  Applicants can use an interpreter for the knowledge test.

Under the proposed system, applicants aged 14-64 will be required to meet the language requirements and pass a knowledge test. As well, applicants may no longer use an interpreter for the knowledge test.

Bars to Citizenship 

Under Canada’s current system, people cannot be granted citizenship if:

  • they are under a probation order, a paroled inmate, or imprisoned in Canada;
  • during the three year period immediately preceding the date of a person’s citizenship application, or during the processing of a citizenship application, they are convicted of an indictable offence under any Canadian Act of Parliament; or
  • they are charged with an offence, on trial for, or are party to an appeal, relating to an indictable offence under any Act of Parliament in Canada.

Under the proposed system, people cannot be granted citizenship if:

  • they are under a probation order, a paroled inmate, or imprisoned in Canada, or, in most cases, if they are serving a sentence outside of Canada;
  • during the four year period immediately preceding the date of a person’s citizenship application, or during the processing of a citizenship application, they are convicted of any offence under a Canadian Act of Parliament, or for most offences outside of Canada;
  • they are charged with an offence, on trial for, or are party to an appeal relating to any any offence under an Act of Parliament or for most offences outside of Canada;
  • they have been convicted of certain terrorism and military offences, or were members of an armed force or organized armed group that was engaged in armed conflict with Canada.

Citizenship Fraud

Currently, the fines and penalties for citizenship fraud are a maximum of $1,000 and/or one year in prison.

Under the proposed system, the fines and penalties for citizenship fraud will be a maximum $100,000 and/or five years in prison.

Revocation

In most situations, the current process to revoke citizenship takes three steps.  First, Citizenship and Immigration Canada (“CIC”) indicates an intention to revoke citizenship.  If the citizen challenges CIC, then Canada’s Federal Court will determine whether the government’s allegation is correct.  If the Federal Court affirms the government’s allegation, then the Governor in Council will decide whether to revoke citizenship.

Under the proposed system, the Minister of Citizenship and Immigration Canada may now unilaterally decide on routine revocation cases involving fraud and misrepresentation. Complex revocation cases involving war crimes, crimes against humanity, security, international human rights violations, and organized criminality will be decided by Federal Court.

As well, Bill C-24 establishes the legal authority for the government to revoke the citizenship of dual citizens who have:

  • served as a member of an armed force or organized arm group that was engaged in an armed conflict with Canada;
  • been convicted of treason or spying offences and sentenced to imprisonment for life; or
  • been convicted of a terrorism offence and sentenced to five years or more imprisonment.

Armed Forces

The residency requirement will be reduced by one year for individuals on exchange who are serving in the Canadian Armed Forces.

Consultants

There is currently no requirement that citizenship consultants be licensed.  Under the proposed system, consultants will be required to be registered with and regulated by a designated organization.

Lost Canadians 

Bill C-24 will give Canadian citizenship to individuals who were born or naturalized in Canada, as well as to those who were British subjects residing in Canada, prior to January 1, 1947, but who were previously not eligible for Canadian citizenship.  Their citizenship will be retroactive.

The children of these “Lost Canadians” who were born abroad in the first generation will also be given retroactive citizenship.

More information about Bill C-24 can be found here.

Bill C-24 can be found in its entirety here.


A34 – Inadmissibility for Security Reasons

Section 34 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for security reasons.  It states:

Security

34. (1) A permanent resident or a foreign national is inadmissible on security grounds for

(a) engaging in an act of espionage that is against Canada or that is contrary to Canada’s interests;

(b) engaging in or instigating the subversion by force of any government;

(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(c) engaging in terrorism;

(d) being a danger to the security of Canada;

(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or

(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b), (b.1) or (c).

(2) [Repealed, 2013, c. 16, s. 13]

A Citizenship and Immigration Canada has produced a useful internal document summarizing the jurisprudence (up to about 2010) on the interpretation of this section, and I have reproduced it below.  More recent jurisprudence can be found throughout my blog, but the CIC document is a very useful summary.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Citizenship and Immigration Canada training guide through an Access to Information Act request (the “ATI”).  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.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.


Bill S-7 – The Zero Tolerance for barbaric Cultural Practices Act

On November 5, 2014, the Leader of the Government in the Senate introduced Bill S-7, An Act to amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to make consequential amendments to other Acts, otherwise known as the Zero Tolerance for Barbaric Cultural Practices Act (“Bill S-7“).

Bill S-7 has mainly received media attention because of its arguably inflammatory title.  The actual significant impacts for prospective immigrants and practitioners are:

Current Proposed
Practising polygamy does not result in a foreign national or permanent resident being inadmissible to Canada. A permanent resident or a foreign national is inadmissible on grounds of practising polygamy if they are or will be practising polygamy with a person who is or will be physically present in Canada at the same time as the permanent resident or foreign national.
Marriage requires the free and enlightened consent of two persons to be the spouse of each other.
No person who is under the age of 16 years may contract marriage.
There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is marrying against their will is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
There will be a new offence that everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
A judge may order a person to enter into a recognizance with conditions to keep the peace and be of good behaviour for the purpose of preventing the person from committing an offence relating to the marriage of a person against their will or the marriage of a person under the age of 16 years or relating to the removal of a child from Canada with the intention of committing an act that, if it were committed in Canada, would be such an offence.

 

Speaking before the Standing Committee on Citizenship and Immigration, Chris Alexander, the Minister of Citizenship and Immigration (the “Minister“), stated:

Polygamy would be added to that very limited set of inadmissibilities. It would provide immigration officers with the tools they need to render both temporary and permanent residents inadmissible for practising polygamy. The new inadmissibility would mean that those entering on a temporary basis who are in polygamous marriages abroad would be able to enter only on their own.

It also means that permanent residents found to be in a polygamous marriage will be removed on that basis alone. In other words, if someone applied for immigration and received permanent residence without informing authorities of the reality of their situation, and were found to be in a polygamous union, they would be removed. We would no longer need a criminal conviction or a finding of misrepresentation in order to begin deportation proceedings.

When asked how this would affect permanent residents who are now practicing polygamy in Canada, the Minister stated:

First of all, I think the point you’ve just made is that the long-standing criminalization of polygamy in Canada points to the fact that it has been a phenomenon in Canada for some time. That point reminds us of Bountiful, British Columbia, and some other communities across the country. It is absolute proof of the fact that there is no racial or xenophobic aspect to this. Polygamy is a practice that can be found in Canada, among people born here who have been here for generations, as well as among newcomers.

Polygamy is legal, to one extent or another, in over 60 countries around the world, and there have been recorded cases of polygamy involving Christians, Muslims, and Hindus. Anyone from the opposition side who says that one group or another is being targeted by this is absolutely wrong, and any cultural community in Canada that makes that claim is wrong. We know from our consultations that most cultural communities, particularly women, welcome protection from polygamy, as they welcome protection from forced and early marriage. That is why they came to Canada.

Now, what does the bill do? It essentially says that instead of having to have a criminal conviction for polygamy—and we know there have been nine of those in over a hundred years, although there are some cases under way today—or a finding of misrepresentation, which is a very high threshold of administrative proof in our immigration system, we will now, instead of meeting those very onerous thresholds, simply have to have an immigration officer satisfied by the evidence before them as they examine the file that polygamy has been practised. That in itself would be grounds for removal, just as a finding that someone, after immigrating to Canada, has been convicted of murder in their home country or has been a génocidaire in Rwanda would be grounds for removal. Polygamy will now be similar grounds.

On your question of peace bonds, I should add that there are some orders the court could give that haven’t yet been mentioned. The family could be ordered to refrain from making arrangements or agreements in relation to the marriage. They could also be ordered to participate in a family violence counselling program. There are some preventative aspects to a peace bond as well.

Are the Polygamy Provisions of the Bill Necessary?

Several organizations have questioned whether the polygamy provisions of Bill S-7 are necessary.  The Canadian Bar Association, for example, has written:

Practising polygamy is an offence under the Criminal Code of Canada.  In the current immigration context, s. 117(9)(d) of the Immigration and Refugee Protection Regulations (IRPR”) further provides that:

(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

(c) the foreign national is the sponsor’s spouse and

(i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or

(ii) the sponsor has lived separate and apart from the foreign national for at least one year and

(A) the sponsor is the common-law partner of another person or the sponsor has a conjugal partner, or

(B) the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or

The Spouse and Common-Law Partner in Canada Class contains similar provisions, as does IRPR r. 5, which essentially prohibits accompanying spouses in polygamous relationships.  These sections all prohibit a second (or third, etc.) wife from being recognized as a spouse and provides that only the first marriage may potentially be recognized for immigration purposes.  Furthermore, the Citizenship and Immigration Canada (“CIC”) Guidelines sets out that in polygamous cases, in order for the first marriage to be recognized as legally valid under Canadian law, the couple must live together in a monogamous relationship in Canada. A polygamous marriage can be converted into a monogamous relationship provided that the couple live together in a monogamous relationship from the time of arrival in Canada. A polygamous second (or third, etc.) marriage cannot be converted to one of monogamy.  If a husband wishes to sponsor a wife other than his first as a spouse, he must divorce his other wives and remarry the chosen wife.  The children born from the second or subsequent marriages, however, can be included in a permanent residence application if they meet IRPR’s definition of dependent.  Finally, a person who immigrates to Canada who practices polygamy but does not disclose all of their conjugal relationships may be found inadmissible for misrepresentation.

A Note on Bountiful, British Columbia

Much of the discourse around Bill S-7 has focused on the Muslim community.  However, one of the first communities that may be impacted is the community of Bountiful in British Columbia, a small allegedly polygamous community in south-eastern British Columbia.  Indeed, as noted above, the Minister specifically referenced Bountiful when speaking to the Standing Committee on Citizenship and Immigration.  Finally, as the internal e-mail obtained through an Access to Information Act request shows, CIC as early as 2012 started examining its role in the continued existence of the remote community. Bountiful


Flagpoling

“Flagpoling,” also known as “sidedooring,” are terms which describe the process of individuals who are inside Canada travelling briefly to the United States and then upon re-entry to Canada submitting an application at a Canadian port of entry (“POE“).  For most individuals who are eligible to flag-pole it is the preferred method to obtain study permits, work permits, and to have their Confirmations of Permanent Residence signed.  The reason is because it typically takes a Canada Border Services Agency (“CBSA“) officer less than 30 minutes to process an application, whereas it can take Citizenship and Immigration Canada (“CIC“) weeks or months to either process an application or schedule a landing interview.

Who Can Flag-Pole (Work Permits)

In the work permit context, regulation 198 of the Immigration and Refugee Protection Regulations (“IRPR”) provides that:

(1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa.

Exceptions

(2) A foreign national may not apply for a work permit when entering Canada if

(a) a determination under section 203 is required, unless

(i) the Department of Employment and Social Development has provided an opinion under paragraph 203(2)(a) in respect of an offer of employment — other than seasonal agricultural employment or employment as a live-in caregiver — to the foreign national, or

(ii) the foreign national is a national or permanent resident of the United States or is a resident of Greenland or St. Pierre and Miquelon;

(b) the foreign national does not hold a medical certificate that they are required to hold under subsection 30(4); or

(c) the foreign national is a participant in an international youth exchange program, unless they are a national or permanent resident of the United States or their application for a work permit was approved before their entry into Canada.

IRPR r. 190 sets out who is exempt from the requirement to obtain a Temporary Resident Visa before entering Canada.  Importantly, IRPR r. 193(3)(f) provides that:

A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely

(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they

(i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and

(ii) return to Canada by the end of the period initially authorized for their stay or any extension to it.

A copy of the implications of IRPR r. 193(3)(f) can be found here. It is very important to understand when an individual who typically requires a Temporary Resident Visa to enter Canada is exempt from the requirement to do so under IRPR r. 193(3)(f).  Our office routinely meets with individuals who misread this policy, which is beyond the scope of this post.

Who can Flag-Pole (Study Permits)

In the study permit context, IRPR r. 214 provides that:

Application on entry

214. A foreign national may apply for a study permit when entering Canada if they are

(a) a national or a permanent resident of the United States;

(b) a person who has been lawfully admitted to the United States for permanent residence;

(c) a resident of Greenland; or

(d) a resident of St. Pierre and Miquelon.

(e) [Repealed, SOR/2014-14, s. 10]

Who can Flag-Pole (Landing)

Anyone can flag-pole to land as a permanent resident.

Risks of Flag-Poling

The term “flagpoling” does not actually appear in Canadian immigration legislation.  In Yang v. Canada (Public Safety and Emergency Preparedness), 2014 FC 383, Justice Harrington remarked that (emphasis added):

It was on 21 May 2013 that Ms. Yang left Canada in body, if not in spirit, and presented herself to the U.S. authorities. They gave her a form called “Notice of Refusal of Admission/Parole into the United States”. This form was addressed to the Department of Manpower and Immigration, Douglas, B.C. Within a column which bears the title “Reasons for Excludability or Parole”, the word “Flagpole” was typed in. There were two other boxes in the form. One is to indicate whether the alien was refused admission into the United States. The other was whether the alien was refused admission and parole in the United States. Both boxes remained blank.

“Flagpole” obviously means something to both the U.S. and Canadian authorities, although whatever understanding there is, was not set out in the record. Counsel for Ms. Yang says it is well-known that individuals in Canada seeking extension of work or study permits simply walk across the border and come back in.

In addition to illustrating that “flag-poling” is a loosely defined concept, the above passage highlights another common practice that is actually very risky for individuals.

Many people who flagpole do not actually get admitted to the United States because they lack American visas.   In addition to these individuals being denied entry to the United States, which can possibly have long-term consequences, it is unclear whether such people actually meet the requirements of IRPR r. 198. After all, if they were denied entry to the United States, did they technically leave Canada? If they didn’t leave Canada, then how can they make an application on entry?  The question has had legal scholars scratching their head for some time.

Ultimately the prevalence of flag-poling may be diminishing.  As the document below indicates, CBSA is becoming increasingly frustrated with people flag-poling, and have voiced their concerns to CIC.  It remains to be seen what CIC ultimately does.

Please note that what I have reproduced below should not be viewed as legal advice.  I obtained a copy of this internal Service Canada question and answer through an Access to Information Act request (the “ATI”).  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.  (I have decided not to reproduce the names of the Service Canada officers involved.) Please e-mail me if you want a copy of the original question and answer contained in the ATI.

Flag-Poling_Page_1

Flag-Poling_Page_2


New LMIA Exemption – Repair Personnel

On May 21, 2015, Citizenship and Immigration Canada (“CIC”) introduced a new Labour Market Impact Assessment (“LMIA”) exemption for individuals who are coming to Canada to repair industrial or commercial equipment that is no longer under warranty or covered by an after-sales or lease agreement.

The LMIA exemption code is C13.

Continue reading “New LMIA Exemption – Repair Personnel”


Asking the Embassy to Re-Consider an Application

Once a decision has been rendered in relation to an application for a humanitarian and compassionate exemption, is the ability of the decision-maker to reopen or reconsider the application on the basis of further evidence provided by an applicant limited by the doctrine of functus officio?
Continue reading →


Determining Whether a Marriage Is Genuine

Arguably the most important part of any spousal or common-law sponsorship application is establishing that a relationship is not encompassed by s. 4(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRPR”), which provides that:

4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership

(a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or

(b) is not genuine.

Despite the importance of applicants demonstrating that their relationship is genuine and not entered into primarily for the purpose of acquiring any status or privilege under the Immigration and Refugee Protection Act (the “Act”), there are no set criteria which determine whether an application is bona-fide. As the Federal Court noted in Koffi v. Canada (Citizenship and Immigration), 2014 FC 7:

It is well established in the case law of this Court that there is no specific criterion, or even a set of criteria, to determine whether a marriage is genuine pursuant to section 4 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Ouk v. Canada (Minister of Citizenship and Immigration), 007 FC 891 at para 13; Zheng v. Canada (Minister of Citizenship and Immigration), 2011 FC 432 at para 23; Khan v. Canada (Minister of Citizenship and Immigration), 2006 FC 1490 at para 20). It is exclusively up to the visa officer to determine the relative weight to grant each of the factors, based on the facts, to ensure the inherent logic of the applicant’s story according to the particular clues, or references made by the applicant himself, meaning the encyclopedia of references, a dictionary of terms, a picture gallery of the applicant’s file in addition to an assessment to determine whether the facts on file taken together create harmony or discord (Keo v. Canada (Minister of Citizenship and Immigration) 2011 FC 1456 at para 24; Zheng, supra).

Notwithstanding the fact that there is no set criteria for IRPR r. 4(1) analysis, numerous Immigration Appeal Division (“IAD”) decisions have noted that a non-exhausted list of factors includes:

  • the compatibility of the spouses;
  • the development of the relationship;
  • communication between the appellant and the applicant;
  • financial support;
  • the spouses’ knowledge of each other;
  • visits by the appellant to see the applicant;
  • the presence of the applicant’s family in Canada;
  • the applicant’s previous attempts to land in Canada;
  • previous marriages; and
  • the cultural context.

While the burden of proof is on an applicant to establish that a relationship is bona-fide, officers should not presume at the outset that a relationship is mala-fide. As well, while visa officers are entitled to consider and weigh numerous factors when assessing a sponsorship application, the jurisprudence is also clear that officers must be alert to an applicant’s unique circumstances, including cultural customs, dating habits, and financial circumstances.

Citizenship and Immigration Canada has produced training materials to officers on how to spot non-genuine relationships.  Thankfully, most officers show much more common sense in assessing these applications than what their training materials suggests should be how they assess applications.