Canada’s family class and the spousal sponsorship program have recently been hit with two significant changes that are largely based on immigration programs found in other Western nations. The first recent change is the proposed introduction of a sponsorship bar, which prohibits recently sponsored spouses from sponsoring a new spouse for three years after they land in Canada. The second is a proposed change to move towards conditional permanent residency for sponsored spouses who have been in a relationship for less than three years with the person that sponsored them.
Given that the current Conservative government appears to be basing much of its changes to Canada’s immigration system on what other Western countries are doing, it is worth exploring another feature of many European countries’ immigration system that is absent in Canada. This is the requirement that family class applicants either pass a language test or a test on their respective destination country’s culture in order to immigrate.
On June 9, 2010, for example, the United Kingdom introduced language tests for foreign spouses. Under the program, all non-European immigrants to the United Kingdom must pass a basic English language test before being granted a visa. The rules apply to anyone wanting to join their spouse or partner in the United Kingdom.
Effective November 15, 2010, meanwhile, a similar requirement was introduced in Denmark. Applicants under Denmark’s family reunification program must pass an immigration test before they can immigrate. The test is an oral one consisting of a language section and a knowledge section. There are 70 questions, consisting of 40 language questions and 30 culture questions. Applicants are required to get 30 out of 40 of the language questions correct, and 21 out of 30 of the Danish society questions correct in order to pass the test.Read more ›
Last updated on August 7th, 2019
One of the challenges in immigration law is determining the appropriate balance between the understandable necessity of ensuring that visa applicants are upfront and honest and humanitarian & compassionate considerations (“H&C considerations”).
In the removals context, s. 67(1)(c) of Canada’s Immigration and Refugee Protection Act specifically provides that removal orders issued as a result of misrepresentation may be excused in light of sufficient H&C considerations. As the Federal Court of Canada noted in Li v Canada (Public Safety and Emergency Preparedness), 2016 FC 451, even though Parliament intended there to be consequences for misrepresentation, it also recognized that there may be circumstances where a removal order issued due to misrepresentation may be cured by H&C relief
The balancing act can be especially complex when children are involved. In Baker v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada stated that H&C considerations require that immigration officers consider the best interests of a child when there are children involved.
As I have previously discussed on this blog, this principle has created a bit of a myth that the bests interests of a child will be determinative in any application. This is simply not the case. For example, in Canadian Foundation for Children, Youth, and the Law , the Supreme Court declared that:
It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. For example, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests. Society does not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice.Read more ›
Last updated on February 16th, 2019
One of the ways to satisfy the residency obligation of maintaining permanent residency is to be employed outside of Canada on a full-time basis by a Canadian business or in the federal public administration or the public service of a province.
A thorny issue that has arisen in the context of determining whether someone meets this requirement is whether an employee has been “assigned” to an overseas affiliate of a Canadian business, and whether it was necessary for there to actually be an “assignment” from the Canadian business.
In Canada (Citizenship and Immigration) v. Jiang, 2011 FC 349, the Federal Court addressed this issue.
At issue before the Court was whether the Immigration Appeal Division had erred in determining that neither the Immigration and Refugee Protection Act or the Immigration and Refugee Protection Regulations required that an assignment of a foreign employee must be effected from Canada. In the Jiang case, a Canadian permanent resident living in China had been hired by a Canadian business while she was in China.
The relevant section of the Regulations reads:
Employment outside Canada
(3) For the purposes of subparagraphs 28(2)(a)(iii) and (iv) of the Act, the expression “employed on a full-time basis by a Canadian business or in the public service of Canada or of a province” means, in relation to a permanent resident, that the permanent resident is an employee of, or under contract to provide services to, a Canadian business or the public service of Canada or of a province, and is assigned on a full-time basis as a term of the employment or contract to
(a) a position outside Canada;Read more ›
On May 17, 2011 the Fraser Institute published a study titled “Immigration and the Canadian Welfare State”. It was the first Fraser Institute study that I’ve read on a topic which I am very familiar with. Unfortunately, by the time I had finished reading the report, I realized that I might have to approach their studies with a greater degree of skepticism.
The study found that immigrants on average paid $10,340 in income and other taxes while all Canadians on average paid $16,501. Subtracting that amount from the amount of government benefits that immigrants receive on average, the study concluded that immigrants imposed an annual fiscal burden of between $16-billion and $23-billion on the Government of Canada.
Now, if you are an immigrant reading that statistic and feel guilty, don’t worry.
The study did not consider that if you were an international student you paid double what domestic students did. It also did not factor in the $250,000 – $800,000 loan that you made to the Government of Canada if you were in the investor program. If you were a professional overseas and could not get your foreign credentials recognized in Canada the study briefly mentioned the issue in a footnote, but assigned very little weight to it.
Incredibly, the study also did not distinguish between economic immigrants, family-class immigrants, business-immigrants, and refugees. Presumably, the fiscal burden between these groups would vary dramatically.
The study glossed over or dismissed some of the other benefits of immigration. Regarding the argument that second and third generation children of immigrants do exceptionally well in Canada, the study’s authors simply expressed doubt on this notion. Perhaps the authors should have read the MacLeans feature on whether Canadian universities are too Asian before simply dismissing this argument.Read more ›
Get ready for the Croatians. On May 10, 2011, the Canada-Croatia Arrangement on Youth Mobility came into effect.
Croatia is now the latest country to sign a Youth Mobility agreement with Canada. The arrangement facilitates Croatian citizens between the ages of 18 and 35 to travel and work in Canada without the need for an employer specific work permit or a Labour Market Opinion.
There are three specific programs available to Croatians:
- Working Holiday;
- Young Professionals; and
- International Co-Op.
On April 19, 2011, the Federal Court of Appeal declared that Citizenship and Immigration Canada has the authority to waive application fees for humanitarian & compassionate purposes.
My favorite part of the judgment was the following passage:
I do not accept the Minister’s argument on this point. The result of the Minister’s interpretation is this. It is possible as a matter of law for a person with no financial resources to be granted permanent resident status if the Minister is of the opinion that such a decision is warranted by humanitarian and compassionate considerations or public policy considerations. However, because that same person does not have $550, the Minister cannot permit the opening of the door that would engage the Minister’s statutory authority to assess those considerations. In my view, that state of affairs makes no sense.
Accordingly, section 25(1) of IRPA allows the Minister to waive any applicable criteria or obligation under the Act for humanitarian and compassionate considerations and public policy considerations.
It is important to note that while Citizenship and Immigration Canada has the authority to grant a request made by a foreign national in Canada to waive the requirement to pay an application fee, and that if asked by an applicant it has to make a decision on the matter, Citizenship and Immigration Canada does not have to waive the fee.
So don’t jump for joy at the prospect of of not having to pay application fees, because it’s hard to imagine that Citizenship and Immigration Canada will be granting too many, if any, waivers.
Read more ›
Last updated on June 13th, 2019
The subject unreasonable delays often arise in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was.
As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process. It is less clear whether the Immigration and Refugee Board can issue stays of proceeding for delays. In Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, Associate Chief Justice Gagné held that it does, but certified the following question:
Do the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee Board have the jurisdiction to grant a permanent stay of proceedings based on an abuse of process on the basis of a delay which is alleged to have occurred following the signing of the s. 44(1) report and/or s. 44(2) referral?
Blencoe v. British Columbia
The leading Supreme Court of Canada decision on this issue is Blencoe v. British Columbia, 2000 SCC 44 .
In Blencoe,Read more ›
You’ve been working in Whistler on a one-year working holiday visa and you want to stay and work for another season. Or maybe you’re a former post-secondary student in Toronto who has six months remaining on your post-graduate work permit and you want to keep working for your company. Perhaps you’re a foreign worker who just wants to renew your work permit.
You start talking to friends and colleagues, and you hear horror stories about what they call a Labour Market Opinion, or LMO. You learn about the process that companies go through to hire foreign workers, and begin to wonder if your employer will even bother. You start wondering if your future in Canada is as certain as you thought.
To understand how to approach the application for a Labour Market Opinion it is important to understand the theory behind it, and to determine whether you actually need one.
The purpose of Canada’s Temporary Foreign Worker Program is to allow Canadian employers to hire foreign workers on a temporary basis. In order to protect the Canadian Labour Market, the government has determined that Canadian employers must show that it was necessary to fill a position with a temporary foreign worker instead of with a Canadian citizen or permanent resident.
As is evident, the Temporary Foreign Worker Program is designed for people that will only work in Canada temporarily. If you want to work in Canada on a permanent basis, then you should consider other options such as, for example, your respective province’s Provincial Nomination Program (“PNP”). For whatever reason, the Citizenship and Immigration Canada website does not make it easy to find these programs. But they are out there,Read more ›
On July 14, 2009, the Canadian government introduced a Temporary Resident Visa (“TRV”) requirement for Mexican nationals. The decision was and continues to be extremely controversial. Mexico responded by slapping a visa requirement on Canadian diplomats. During the 2011 Federal Election campaign, the Liberal Party promised to revoke the visa requirement. On May 9, 2011, the Globe and Mail featured an editorial titled “The Visa for visiting Mexicans has run its course.”
I believe that once Bill C-11 is in full affect, the costs of the TRV requirement will far outweigh its benefits, if they do not already.
Acknowledging the Success of the TRV Requirement
There is no question that the TRV requirement has reduced the number of refugee claimants from Mexico. In the first three months of 2009, 2,757 Mexicans applied for refugee status. During the same period in 2010 the number was 384.
The acceptance rate, which was always low, continues to hover at around 10%.
The Inconvenience to Travelers is Massive
While the TRV requirement has reduced the number of Mexican refugee claimants, it has also greatly inconvenienced tens of thousands of Mexicans, and deterred many hundreds of thousands more from coming to Canada.
In 2010, the Canadian embassy in Mexico City processed 57,966 temporary resident visa applications. The Mexico City embassy is only responsible for processing temporary resident visa applications for people who have been residing in Mexico with status. From 2006-2008, the Mexico City embassy processed an average of 1,500 temporary resident visa applications. Assuming this number remained constant in 2010, then it can be assumed that in 2010 approximately 55,500 Mexican nationals applied for a visa to visit Canada. Indeed, Mexicans have gone from not having to apply for a temporary resident visa to being the second largest applicant source country.Read more ›
One of the frustrations people who successfully appeal family class decisions to the Immigration Appeal Division (“IAD”) often face is that there is a significant delay between when the IAD allows an appeal and when a mission abroad resumes processing. This delay is often several months.
Citizenship and Immigration Canada has recognized this issue, and has introduced a pilot project to address it.
After a successful appeal, the processing of a Family Class Application for a Permanent Residence Visa will no longer be sent back to the original embassy, but rather will resume at Case Processing Pilot – Ottawa.
The implementation of the pilot project will take place in two phase.
From now until September 2011, all family class appeals that are allowed will be forwarded to CPP-O. CPP-O will create a file, conduct security checks, and forward the file to the respective visa office for processing.
Starting in September, CPP-O will conduct security checks, and then triage the files into relatively low admissibly risk files and complex ones. For a relatively low risk files, CPP-O will process the entire file, and print the Confirmation of Permanent Residence. Files that are identified as having complex admissibility issues will still be forwarded abroad.
Although the change is largely procedural, applicants who are successful at the IAD will undoubtedly feel a substantial benefit if the expected several months reduction in processing time happens.Read more ›