Flagpoling

26th May 2015 Comments Off on Flagpoling

Last updated on August 13th, 2019

“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 Immigration, Refugees and Citizenship Canada (“IRCC“) 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);

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New LMIA Exemption – Repair Personnel

21st May 2015 Comments Off on 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.

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Determining Whether a Marriage Is Genuine

15th May 2015 Comments Off on Determining Whether a Marriage Is Genuine

Last updated on March 12th, 2019

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 (citations removed)

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. 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.

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Bill C-60, The Removal of Serious Foreign Criminals Act

13th May 2015 Comments Off on Bill C-60, The Removal of Serious Foreign Criminals Act

On May 13, 2015, the Minister of Public Safety and Emergency Preparedness introduced Bill C-60, An Act to amend the Criminal Records Act, the Corrections and Conditional Release Act, the Immigration and Refugee Protection Act and the International Transfer of Offenders Act, also known as the Removal of Serious Foreign Criminals Act (“Bill C-60Removal of Serious Foreign Criminals Act”).

Bill C-60 will:

  • Make it easier and faster to remove certain foreign nationals and permanent residents who are inadmissible to Canada for serious criminality.
  • Make all foreign nationals and certain permanent residents ineligible for a record suspension.
  • Allow the Correctional Service of Canada to inform registered victims of crime of the date and destination of criminals released from immigration detention; and
  • Make it easier for Canada to transfer criminals without their consent to serve their sentence in their home country.

A more detailed breakdown of the provisions is as follows:

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Consequences of Recent Changes to Live-in Caregiver Program

12th May 2015 Comments Off on Consequences of Recent Changes to Live-in Caregiver Program

The following article appeared in the January edition of The Canadian Immigrant.  At the end of the article I have reproduced two Access to Information Act which confirm the great reduction in the program.

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Judicial Reviewing Electronic Decisions

12th May 2015 Comments Off on Judicial Reviewing Electronic Decisions

Bill C-59 – An Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 (“Bill C-59“) and other measures introduces certain amendments to the Immigration and Refugee Protection Act (“IRPA“).  One of them is:

186.1 (1) The Minister may administer this Act using electronic means, including as it relates to its enforcement.

(5) For greater certainty, an electronic system, including an automated system, may be used by the Minister to make a decision or determination under this Act, or by an officer to make a decision or determination or to proceed with an examination under this Act, if the system is made available to the officer by the Minister.

It is well known that most Electronic Travel Authorization decisions will be electronic.  Bill C-59 allows for the possibility that automated decision making may occur elsewhere.

As computers possibly start deciding temporary and permanent residence applications, the question has to be asked.. how do you judicially review the decision of a computer? Is the computer an expert?

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Renouncing Permanent Resident Status

11th May 2015 Comments Off on Renouncing Permanent Resident Status

Last updated on August 23rd, 2019

Prior to November 21, 2014, there was no formal way for permanent residents to voluntarily renounce their permanent resident status in Canada.  Incredibly, permanent residents who wanted to voluntarily relinquish their status had to generally first be declared inadmissible to Canada by Immigration, Refugees and Citizenship Canada (“IRCC”).  This changed in 2014, and the ability to formally relinquish permanent resident status will benefit numerous individuals.  As the IRCC website states:

In some cases, permanent residents know that they failed to meet the residency obligation and have no desire to remain in Canada as permanent residents, but they wish to visit Canada without being reported for non-compliance with respect to their residency requirements. In other cases, individuals may be required to provide proof that they have given up Canadian permanent resident status in order to obtain benefits from their country of origin or a third country, such as accepting a diplomatic posting, renewing civil documents (national identity cards, health or pension coverage, etc.) or entering military service.

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