The Canada Border Services Agency (“CBSA“) in 2011 produced the Integrated Intelligence / Enforcement Priorities Report (the “Report“). The Report is interesting because it presents succinct descriptions of what CBSA considers to be areas of importance in the enforcement context related to immigration, and why it considers these issues important.
Practitioners may find these summaries useful in explaining to clients why we ask some of the questions that we do.
I have reproduced sections of the report below:
|What Is It
Canada’s immigration and citizenship legislation both contain residency obligations which must be met in order to be granted citizenship or maintain PR status in Canada. Section 28(1) of the IRPA requires that a PR be physically present in Canada for 730 days in a 5 year period. Failure to meet the residency obligation can result in the loss of PR status and removal from Canada. Furthermore, in order to be eligible for citizenship, section 5 the Citizenship Act requires that a PR accumulate at least 3 years of residence in Canada within the 4 years immediately preceding their application.In many instances, individuals who do not meet the residency requirements under the IRPA use fraudulent documentation or other means to falsely establish their presence in Canada in order to maintain their PR status. This problem is compounded if the fraud is not detected and the person becomes eligible for citizenship based on erroneous information.
Residence Fraud is believed to involve a mix of individuals acting of their own accord and organized attempts to circumvent the provisions of the IRPA and Citizenship Act in order to gain status although the magnitude of the problem remains unknown. The incentive to commit fraud can be great, in part because maintaining PR status permits an individual to become eligible for citizenship and for various other Federal/ Provincial/Territorial (FPT) benefits.
|Why Is it a Priority?
This type of fraud links to FPT benefits, the PR Card program and the Citizenship program which requires that applicants be a PR and which also has a residence requirement for PR. Consequences for Residence Fraud may include criminal prosecution, revocation of citizenship and removal from Canada. PR who commit fraud may lose their PR status and may be subject to removal from Canada. As indicated in media reports, there are a number of other ongoing police investigations regarding potential Residence Fraud across Canada. Continuing into 2012, the Government of Canada (GC) is investigating 6,500 people from more than 100 countries for fraudulently attempting to gain citizenship or maintain permanent resident status. CIC has begun the process to revoke the citizenship of nearly 2,000 citizens who obtained it fraudulently and has flagged the files of nearly 4,400 permanent residents known to be implicated in residence fraud should they attempt to enter Canada or obtain citizenship.
|What Is It
In 2004, the Immigration and Refugee Protection Regulations (the Regulations) were amended to ensure that only persons who were authorized representatives could, for a fee, represent, advise or consult with
a person who was the subject of a proceeding or application under the IRPA.
While they are not required to do so, potential refugees and immigrants to Canada may seek advice from third parties about the various immigration processes to which they are subject. Such assistance is often costly and varies considerably in quality. Some third parties are not qualified to provide the advice they dispense, and some have exploited immigrants by providing false information, and engaging in fraud.
Certain consultants who held themselves out as experts had no training or experience in handling complex files. Others made false promises, and charged exorbitant fees for their services. In a number of
reported cases, consultants charged fees for an unfulfilled promise to file immigration applications, while providing fictitious file reference numbers and advising clients that the GC had refused the application. In the most egregious cases, consultants have reportedly counselled misrepresentation.
The Regulatory Impact Analysis Statement for the recent Regulations Amending the Immigration and Refugee Protection and the Legislative Summary of Bill C-35 describe persistent and credible reports
that some unscrupulous immigration consultants, both in Canada and abroad, were facilitating people smuggling and fabricating documents permitting foreign nationals to enter Canada illegally.
Bill C-35 creates a new offence by extending the prohibition against representing or advising people- or offering to do so -for consideration. This offence applies not only to all stages of a proceeding or application under the IRPA, but also to all stages occurring even before an application is made or a proceeding instituted.
|Why Is it a Priority?
Efforts by the CBSA to prevent Consultant Fraud are part of a broader strategy to protect people wanting to immigrate to or stay in Canada from Immigration Fraud.
Consultant Fraud undermines the immigration system’s objective of ensuring that the public is well served by ethical and professional immigration consultants. The Minister of Citizenship, Immigration
and Multiculturalism has publicly described Consultant Fraud as a problem that poses a significant threat to the immigration system and has created a lack of public confidence in the regulation of consultants. Despite efforts by CIC and the CBSA to address the issue, there have been, through the years, several complaints from the public, through the House of Commons Standing Committee on
Citizenship and Immigration, and from within the profession about unacceptable practices of immigration consultants.
Some consultants in Canada and abroad act on behalf of clients who would otherwise not qualify under Canada’s immigration or refugee programs: their role is to provide fake documentation, stories etc. to gain entry for their client into Canada. The consequences for prospective immigrants can be severe, ranging from rejected asylum applications to penalties for misrepresentation, such as fines, imprisonment or being barred from entry to Canada for a period of at least two years.
The GC has made it clear that it is important to ensure that regulated consultants who engage in fraudulent operations and unregulated consultants, or ghost consultants, be prosecuted to the full extent of the law.
Marriages of Convenience
|What is it?
Marriages of Convenience fraud can take many forms such as: Canadians and PR that are victimized by fraudsters
Complicit fraud, where both parties are aware of the fraud,· and Fraud involving three or more people (Couple +facilitator etc)
Many cases of MoC fraud consist of cases where a Canadian citizen or PR enters into what they believe is a bona fide marriage but their foreign national spouse is entering into the marriage solely to obtain status in Canada and Canadian citizens/PR who knowingly marry a foreign national solely to facilitate their obtaining status in Canada. Instances of Canadian citizens/PR marrying foreign nationals to help them obtain status vary from private arrangements between individuals to organized efforts to circumvent Canada’s immigration laws. While entering into a marriage primarily for immigration purposes is prohibited under the Immigration and Refugee Protection Regulations, it is often a challenge to identify and substantiate these kinds of relationships.
The GC recognizes that even genuine marriages can fail. However, if a person enters into a MoC and comes to Canada as an immigrant, enforcement action can be taken by the CBS A. This enforcement action includes investigating cases of fraud in cooperation with CIC, gathering intelligence on organized networks and the removal of persons ordered deported from Canada.
|Why Is it a Priority?
Canada’s immigration system attempts to discourage MoC. Anyone who wants to sponsor their spouse or partner to immigrate to Canada makes a serious legal commitment. As part of this commitment, sponsors must support their spouse or partner for three years, even if the relationship fails.
If the couple breaks up and the sponsored person gets social assistance, the sponsor must pay back the amount of social assistance the former spouse received. This can place a financial and emotional strain on Canadians directly involved.
The objective of this integrated CIC/CBSA priority is to deter MoC fraud while maintaining the spirit of the family reunification program by continuing to facilitate the reunification of genuine spouses and partners and their dependents. A focus on MoC fraud would serve to further strengthen the integrity of Canada’s immigration system and send a message that Canada is taking a strong stance against marriage fraud.
There is increased public concern about abuse of Canada’s family immigration program through MoC fraud, and the issue has received considerable media attention. In order to gauge the seriousness of the marriage fraud challenge, in the fall of 2010, the Minister of Citizenship, Immigration and
Multiculturalism held town hall meetings focused on the issue. CIC also held on-line consultations on MoC fraud in the Fall of 2010 in order to gather public and stakeholder views.
While firm figures on the extent of MoC fraud are not available, we know that about 46 300 immigration applications for spouses and partners were processed in 2010 (39 800 from abroad and 6500 from Canada). There is evidence of organization behind some MoC fraud: Organized crime may be using this means to bring persons to Canada for trafficking, though more information is required to establish patterns and trends of cases with clear links to organized crime.
|What is it?
The ongoing abuse of the welfare and social benefit systems by certain refugee claimant populations is a problem being reported by all levels of government and members of the public. This includes refugee claimants who have abandoned or withdrawn their refugee claims or who have been determined not to be a refugee but remain in Canada and continue to receive FPT and municipal benefits through direct deposit or other means. In some instances, refugee claims are made under multiple identities and in different provinces in order to obtain multiple welfare payments.
|Why Is it a Priority
The GC has a responsibility to work together with all levels of government to ensure that benefits are paid only to individuals who are entitled to them.
Welfare/Benefit fraud affects everyone and compromises the effectiveness of Canada’s strongest social programs. The likelihood of Welfare and Health Services related fraud is very high. Specific groups perpetrating the fraud are thought to be known although the full scope is unclear and requires further research.
Welfare/Benefit Fraud may represent a significant financial liability for the health and social systems administered by the Provinces and Territories (PT) and has the potential to erode public confidence in the integrity of those systems.
|What Is it?
CIC is responsible for issuing the documents required for foreign workers to enter Canada, and helps make the final decisions as to whether foreign workers may enter and work in Canada. The selection criteria for foreign skilled workers assess individuals against criteria prescribed in the Immigration and Refugee Protection Regulations and awards points if the applicant meets the criteria. One of these criteria is an offer of permanent employment from a Canadian employer, which can facilitate the approval of a federal skilled worker application. With the introduction of a cap on the number of Federal Skilled Worker applications, a valid AEO is sometimes seen as a way to circumvent the cap. As a result, the AEO process is becoming more common and it is a target for fraud. The GC has reacted to the program abuse by strengthening screening and monitoring initiatives to make sure the offers of employment are bonafide.
The Immigration and Refugee Protection Regulations require that impact on the Canadian labour market be assessed as part of the visa issuance process. A Labour Market Opinion (LMO) assesses the impact
the hiring of a foreign worker would have on Canada’s labour market or, how the offer of employment would likely affect Canadian jobs. In some instances, fraudulent information is being provided to Human Resources Skills Development Canada (HRSDC) in order to influence their assessment of the labour market with respect to certain occupations. LMO includes misrepresentation of any information relevant to HRSDC/Service Canada’s assessment of the labour market impact factors in order to falsely influence the outcome of that assessment.
This fraud represents a threat to employment opportunities for Canadians. For example, some Canadian Visa Offices suffer from higher levels of fraud, which has an impact on the approval rates in different visa offices. In such cases, it takes longer to assess the genuineness of an application and the acceptance rate is also lower.
|Why Is it a Priority
Although fraud undermines the Arranged Employment Offer (AEO) program, its policy goal of helping Canadian companies attract permanent skilled workers to Canada remains a public policy goal. The GC has expressed a desire to balance long-term and short-term solutions for employers to access the labour and skills needed to sustain Canada’s economy.
Combating both AEO and LMO fraud is also consistent with and supportive of work being done with a number ofPT and the GC to better protect the interests of foreign workers in Canada. For example, a new Integrity and Horizontal Coordination Division has been created at HRSDC national headquarters to facilitate matters relating to employer monitoring and compliance in cases where HRSDC has provided opinions.
Consultants and Canadian businesses may be facilitating AEO fraud, sometimes with prospective foreign workers paying Canadian companies thousands of dollars for fake job offers in order to facilitate their immigration applications.
With this significant increase in temporary foreign workers (TFW), the GC has become increasingly aware of instances where employers, or third-party agents working on their behalf, are failing to abide by commitments made to workers. Breaches that could occur include employers paying TFW less than promised, inadequate accommodations for some TFW, and third-party agents charging fees to workers, rather than employers, in contravention of PT legislation.