What Will Cause A Refused NEXUS Application

As I have previously written about in this blog, there are numerous benefits to being a member in the NEXUS program.  Membership in NEXUS enables people to save time through the use of automatic self-serve kiosks at airports, designated lanes at the land border, and expedited security procedures at airports.   Indeed, on November 13, the Canadian Air Transport Security Authority started a pilot project featuring a new, expedited screening line for NEXUS members at the security screening checkpoint for flights to the U.S. in Terminal 1 at Toronto Pearson International Airport.  NEXUS members who participate in this pilot are permitted to keep shoes, belts and light jackets on and leave laptops, large electronics, and compliant liquids, aerosols and gels in carry-on bags.

For many people, one of the frustrating things about the NEXUS program is that the Canada Border Services Agency (“CBSA“) website is very vague as to what may cause Canada to refuse someone’s NEXUS application.  It states:


Canada’s Presentation of Persons (2003) Regulations, SOR/2003-323 (the “PoP Regulations“) are also not clear as to what may disqualify someone from being able to enrol in NEXUS.  The Regulations state:

6. The Minister may issue an authorization to a person to present themself in an alternative manner described in paragraph 11(a), (b), (c) or (e) if the person:

(a) is

(i) a permanent resident, within the meaning of the Immigration and Refugee Protection Act, or a Canadian citizen, or

(ii) a citizen or permanent resident of the United States;

(iii) [Repealed, SOR/2005-385, s. 6]

(b) is of good character;

(c) is not inadmissible to Canada under the Immigration and Refugee Protection Act or its regulations;

(d) provides their consent in writing to the use by the Minister of biometric data concerning the person for the purposes set out in section 6.3;

(e) has provided true, accurate and complete information in respect of their application for the authorization; and

(f) has resided only in one or more of the following countries during the three-year period preceding the day on which the application was received:

(i) Canada or the United States, or

(ii) if the person is a citizen of Canada or the United States and is serving at a Canadian or American diplomatic mission or consular post in a foreign country, that foreign country.

NEXUS program (air, land and marine)

6.1 The Minister may issue an authorization that is recognized in both Canada and the United States to a person, other than a commercial driver, to present themself in the alternative manners described in paragraph 11(a),subparagraph 11(d)(ii) and paragraph 11(e) if the person

(a) meets the requirements set out in paragraphs 6(a) to (f);

(b) has their eligibility to obtain an American authorization to present themself on arrival in the United States in the alternative manners described in paragraph 11(a), subparagraph 11(d)(ii) and paragraph 11(e) confirmed by the United States Department of Homeland Security; and

(c) provides a copy of their fingerprints and consents in writing to their use by the Minister for the purposes ofidentifying the person and performing background and criminal record checks on them.

(d) [Repealed, SOR/2006-154, s. 4]

When I applied for my NEXUS membership, I wanted to certainty as to whether I qualified, and what exactly “good character” meant.  The use of the word “may” on the CBSA website also puzzled me.  I contacted the CBSA to enquire on the matter.  Eventually, prior to me having to submit an Access to Information Act request, a very helpful CBSA officer provided me with a copy of the CBSA’s NEXUS Strict Standard Policy (the “NEXUS Policy“).  The officer asked that I not publish the NEXUS Policy on this blog, and, I complied.

It appears that I was not alone in my confusion.

According to a recent In Focus on the CBSA website, the Standing Joint Committee for the Scrutiny of Regulations has requested greater clarity regarding the “good character” provision found in the PoP Regulations.  The SJC has raised an issue with the term “good character” due to its ambiguity.  As a result, the CBSA has developed a comprehensive list of eligibility criteria to be included in the PoP Regulations, which it is seeking feedback on.  They largely mirror what currently already exists in the NEXUS Policy.


The new PoP Regulations will confirm that a NEXUS applicant cannot have a criminal conviction originating from within or outside of Canada.  Exemptions include where an applicant has been pardoned and if they have been granted criminal rehabilitation by Citizenship and Immigration Canada in the case of criminal convictions outside of Canada.

The CBSA website further states that:

The policy intent on exemptions to having no criminal record or having a pardon is:

  • A summary conviction or two summary convictions arising out of a single occurrence if five years have elapsed
  • An indictable conviction punishable by less than 10 years if 10 years have elapsed
  • An indictable conviction punishable by more than 10 years = lifetime ban
  • Repeated convictions (except if two summary convictions arising out of a single occurrence) = lifetime ban
  • Exception to the above: whether a summary or an indictable conviction, if related to border enforcement priorities = lifetime ban


  1. The period of time to elapse begins at the completion of the imposed sentence (e.g. time served, and/or end of probation, and/or payment of fine, etc.).
  2. As done when assessing admissibility to Canada, for the purposes of assessing eligibility to a TTP, foreign criminal conviction(s) will be equated with appropriate Canadian offences.

In cases of pending criminal charge(s), for which a conviction could result in ineligibility, or outstanding warrant(s), the Regulations would state that applications may be put on hold until a decision is made by a Court or until, in the case of outstanding warrant(s), they are no longer valid.

Compliance with program legislation:

The CBSA website states:

The CBSA administers and enforces more than 90 Acts, Regulations and international agreements on behalf of other government departments, also known as “program legislation” as identified in the Canada Border Services Agency Act. The new criteria would state that applicants must adhere to all provisions administered and/or enforced by the CBSA in the program legislation; however, depending on the nature/seriousness of an infraction, the enforcement action that resulted, or the length of time that has elapsed, the applicant may still be eligible to join a TTP.

For example, a seizure for lack of compliance with the Customs Act will require a period of six years to have elapsed before an applicant can be eligible for membership in any TTP.

Furthermore, if there are reasonable grounds to suspect that an applicant may be suborned to commit an act or to assist or abet a person to commit an act contrary to the provisions of program legislation administered and/or enforced by the CBSA, the Regulations would specify that the applicant may be ineligible for membership in a TTP.

That the Regulations (and hopefully the CBSA’s NEXUS website) will finally confirm that a Customs Act seizure violation will not affect NEXUS eligibility after six years is a welcome development, and will remove much uncertainty regarding program eligibility.

National security:

Not surprisingly, if there are reasonable grounds to suspect that an applicant made be involved with or associated with one or more of the following activities, the applicant will be ineligible for NEXUS membership:

  • Terrorism; or
  • Espionage and/or subversion; or
  • War crimes and crimes against humanity; or
  • Criminal organizations – organized or not; or
  • Transnational crime such as smuggling and/or trafficking of persons and/or goods; or
  • Money laundering and/or terrorism financing.

Travel document:

Finally, the CBSA website states:

In certain legal proceedings, a Court may order the surrender of an individual’s passport so that they cannot travel outside of the country. As NEXUS and FAST membership cards can sometimes be used as travel documents in lieu of a passport, to avoid conflict with such an order, if an applicant has a Court order to surrender his/her travel documents, he/she may be deemed ineligible for membership in the NEXUS or FAST programs.

A Note on the Americans

In reviewing the above, it is important to note that both Canada and the United States must approve NEXUS applications.  There are slight variations in how each country determines admissibility (especially regarding criminality) that applicants should be aware of.


The CBSA is once again seeking to update the regulations on largely the same terms as above.


Introducing a Residency Requirement for Social Transfers

The Federal-Provincial Fiscal Arrangements Act (the “FPFAA“) establishes the Canada Social Transfer, a federal block transfer to provinces and territories to support post-secondary education, social assistance, social services, early childhood development, and early learning.   In 2014-15 the total Canada Social Transfer transferred to all provinces and territories will be almost $12.6 billion.

The FPFAA stipulates that one of the objectives of the Canada Social Transfer is to maintain a national standard in which no period of minimum residency is required or allowed for an individual to receive social assistance, and the current version of s. 25.1 of the FPFAA achieves this by stipulating that:

Criteria for eligibility — Canada Social Transfer

25.1 In order that a province may qualify for a full cash contribution under [the Canada Social Transfer] for a fiscal year, the laws of the province must not

(a) require or allow a period of residence in the province or Canada to be set as a condition of eligibility for social assistance or for the receipt or continued receipt of social assistance; or

(b) make or allow the amount, form or manner of social assistance to be contingent on a period of such residence.

In other words, provinces and territories cannot currently impose a minimum period of residence on the receipt of social assistance without a reduction in their Canada Social Transfer payments.

One of the measures in the Conservative Government of Canada’s second Omnibus Bill titled “A Second Act to Implement Certain Provisions of the Budget Tabled in Parliament on February 11, 2014 and other measures” (the “Budget Implementation Act“) would modify this national standard to clarify that provinces only cannot impose residency requirements on the following people:

  1. Canadian citizens;
  2. Permanent residents;
  3. Persons who have been determined to be victims of human trafficking and who hold Temporary Resident Permits; and
  4. Convention refugees and people who are persons in need of protection.

The consequence of the Budget Implementation Act is accordingly that some provinces may introduce residency requirements for foreign nationals, including refugee claimants, before they can receive social assistance.

Continue reading “Introducing a Residency Requirement for Social Transfers”

The Caring for Children Class, and the Caring for People with High Medical Needs Class

On November 28, 2014, the Government of Canada issued Ministerial Instructions completely overhauling Canada’s caregiver immigration programs.

The changes consist of:

  • Suspending the in-take of applications under the existing Live-in Caregiver Program;
  • Establishing the Caring for Children Class; and
  • Establishing the Caring for People with High Medical Needs Class.

The above changes all take effect on November 30, 2014.

Continue reading “The Caring for Children Class, and the Caring for People with High Medical Needs Class”

Environmental Overview – Colombo

The following is a summary of the Environmental Overview of the immigration functions at the Canadian High Commission in Colombo, Sri Lanka (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2014-2015 planning exercise, and is current as of January 2014.

Areas in blockquote are direct passages from the Environmental Overview.  If you would like to obtain a copy of the full Environmental Overview, please contact me.

Continue reading “Environmental Overview – Colombo”

Environmental Overview – Chandigarh

Earlier this year I published a partial reproduction of the Environmental Overview of the immigration functions at the Canadian Consulate in Chandigargh current to 2012.  The post was quite popular, and the following is a summary of the most recent Environmental Overview of the immigration functions at the Canadian Consulate in Chandigarh (the “Environmental Overview”).  The Environmental Overview was prepared as part of the Citizenship and Immigration Canada 2014-2015 planning exercise, and is current as of January 2014.

Areas in blockquote are direct passages from the Environmental Overview.


The Canadian Consulate in Chandigarh (“CIC Chandigarh“) provides temporary residence processing in northwest India.

Chandigarh is a non-immigrant processing office. However in 2013 we processed some family class files in order to assist Delhi with their targets and to provide a learning experience for officers in Chandigarh. Over 400 family class applications were interviewed and processed to conclusion in 2013.

SuperVisas continue to account for 15% of our total visitor intake.

Systemic fraud necessitates a careful review of applications in all lines of business.

Interestingly, CIC Chandigarh has been active in meeting with Punjab government officials to provide input on the new Punjab Prevention of Human Smuggling Act, a law which provides a registration system for those performing immigration consultant services and provides stiff penalties for those who operate without being registered or who commit fraud.

Two quality assurance exercises have been completed in the past year, one on the genuineness of WP applicant’s employment history and one on the genuineness of bank documents provided by TRV applicants. Significant fraud was detected within the WP program and processing changes have been made to include up-front verifications on all worker cases. Little fraud was found in the bank document QA.


The AFLO participates in FCC initiatives and is a member of the New Delhi Taskforce. AFLO participated in Project Chakra, an FCC project to target unscrupulous agents in Punjab. This resulted in the arrest of six agents, including one arrest from a Canadian referral.

It is clear that CIC Chandigarh faces numerous fraud issues.

In Punjab, corruption with police continues to be a major challenge…………. It is widely reported in the media and senior police officials have admitted that their officers are easily bribed.

Identities of legitimate sponsors and their documentation is being recycled by agents in subsequent applications, especially with siblings……. and fraud is detected in about 10% of the cases.

Chandigarh has recently been receiving a large number of TRV applications that have nothing more than a hotel reservation and airline booking as supporting documents. Further investigation has uncovered that many of these applicants believed that they were applying for a WP but the agent only submitted a TRV application. After the inevitable refusal, in some cases, agents will convince the applicant they have been issued a WP by sending them a scan of a fraudulent WP and charging very large fees before the passport is returned.

As revealed in a WP QA exercise, there is a continuing trend of worker applicants submitting fraudulent experience letters. Over half of all WP applicants misrepresent their employment history.


Temporary Resident Program

CIC Chandigarh had a decrease in Temporary Resident Visas in 2013 over 2012.  Combined with a small growth in the study and work permit programs the overall decrease in application intake was 6%.


The vast majority of applications are submitted via the VAC. Applicants are able to submit urgent applications (e.g. death in the family) in person. We will soon close our window except for exceptional cases and plan to have urgent cases sent to us from the VAC with special coding so they will receive one day service.

PG1 applications continue to account for 15% of our total TRV applications. We strongly encourage applicants to do upfront meds and have changed information on the website to encourage them to do so.

Work Permits

Low skilled workers with unreliable documentation continue to add complexity to decision making.

Applicants submitting fraudulent employment reference letters especially with the truck driver applicants.

….. the vast majority of temporary worker applications are refused.

If you would like me to send you the full version of the Environmental Overview for Chandigargh please e-mail me.

Labour Market Impact Assessments- Prevailing Wage

In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area.  The prevailing wage is set by Employment and Skills Development Canada (“ESDC”)/Service Canada.  It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.

Continue reading “Labour Market Impact Assessments- Prevailing Wage”

Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations

Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state 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.

There has been developing jurisprudence on the disjunctive nature of IRPR r. 4(1), including a recent Federal Court certified question on whether IRPR 4(1)(a) is ultra vires the Immigration and Refugee Protection Act (“IRPA“), which provides that:

The objectives of this Act with respect to immigration are to see that families are reunited in Canada.

Continue reading “Genuineness and Primary Purpose – The Disjunctive Test – Section 4(1) of the Regulations”

Environmental Overview – Chandigarh – 2013

The following is a summary of the Environmental Overview of the immigration functions at the Canadian Consulate in Chandigarh (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.

Areas in blockquote are direct passages from the Environmental Overview.


The Canadian Consulate in Chandigarh (“CIC Chandigarh”) provides temporary residence processing in northwest India.  It recorded a record number of decisions in 2012.

In partnership with Delhi and the VAC (VFS), prospective non-immigrant applications are created in GCMS overnight for all applications received by VFS in India, before the
applications are physically delivered to mission the following morning. File creation by QRC is not possible due to Indian law prohibiting the international transfer of personal data. As there is no more requirement to scan the 2D barcodes, file creation is completed much more quickly. Only consequence is that Chandigarh appears as the secondary office for all applications received in India (Delhi showing as the principal office); statistical reports and the monitoring of pending applications must take this into consideration.

The elimination of 20 barcode scanning and the overnight creation of prospective applications has freed up some time for the LE3 Registry Clerks, which has been directed to actioning incoming correspondence (no backlog) and also to the scanning of finalized applications into GCMS. Latter takes more time than traditional filing, but gains will be enjoyed downstream; eg. for actioning A TIP requests because the supporting 2013-2014 International Region Integrated Management Plan documents will already be in GCMS and will be accessible to the A TIP section at HQ.

A full-time resource is devoted to responding to the 75-100 e-mail communications that CIC-Dakar receives each day.

Temporary Resident Program

CHADG experienced an overall18% increase in the number of non-immigrant applications in 2012 compared to 2011:45617 vs 38603. TRVs up 19%; Students up 13% and Workers up 31%


TRV applicants are rarely interviewed. The vast majority of applications are submitted via the VAC. Applicants are able to submit urgent applications (eg. funeral) in person outside of regular public hours.

PG1 applications account for approximately 15% of total TRV applications. These applications involve more processing as all applicants require medicals and many are furthered, which requires resources to action and monitor. For the first 4-6 months after the introduction of the PG1 category, applicants were given the opportunity to submit additional documents to satisfy PG1 criteria; this prolonged processing and increased the resources required to process such applications.

Religious workers (WX1) also require more processing compared to other TRV applications: involves confirming invitation with Canadian Gurdwara which is given 15 days to respond.

An analysis of CHADG’s TRV processing times as reported by OPMB revealed that it was often cases such as the Religious Worker which tipped CHADG’s processing times to 14 days, whereas 70-75% of cases had actually been processed within 5 days.

The Study Permit approval rate is 64%.  The increase is attributed to the mandatory IELTS requirement of the SPP.

Working closely with ACCC and Scotia bank, we began offering SPP students the ability to purchase a $10,000 GIC to show the ability to cover their first year’s living expenses. There was a strong uptake in this program and over 1 980 GICs were funded for the January 2013 cohort. We are currently working to make this a mandatory requirement for the SPP program and anticipate this will address the issue of fraudulent bank loans which continues to be a problem.

Study Permits

Student applications increased by 13%: 1145 more applications than in 2011. However, only 7 more SPs were issued. This is due to the large number of applicants who reapply after refusal. 21.8% of total student applications in 2012 were repeat applications. This also has the result of increasing CHADG’s refusal rate which increased from 52.7 in 2011 to 57.7 in 2012.

The reapplication rate is most likely driven by the consultants. Fraud continues to be encountered in SP applications, mainly misrepresentation of IEL TS and academic record. For integrity purposes, IELTS is verified 100%.

Work Permits

The number of applications increased by 31% in 2012. The refusal rate is very high: only 21.5% were approved in 2012, same as in 2011. And yet, the worker category has the highest rate of refugee claims, approximately 8% of visas issued.

WP applications are largely for long-haul truck drivers or low-skilled. Approved truck drivers usually have overseas (UAE) experience and have submitted reliable evidence of English language ability. Refused truck drivers have not submitted reliable evidence of English. The low skilled (agricultural workers, janitors, counter attendants) are usually refused for bona fides.

An analysis of refugee claims from TFWs revealed that the claims are often submitted 1-3 years after entry to Canada, are from low-skilled who showed no English. This suggests that they do not have the skills to qualify for PNP or any other avenue for PR.