Administrative Deferrals of Removal

31st May 2019 Comments Off on Administrative Deferrals of Removal

Last Updated on May 31, 2019 by Steven Meurrens

Administrative deferrals of removal (“ADR“) are temporary measures when the Government of Canada determines that immediate action is needed to temporarily defer removals of foreign nationals to countries experiencing humanitarian crisis.  Once the situation in a country stabilizes the ADR is lifted and removals resume.

Those who are inadmissible to Canada on grounds of criminality, international or human rights violations, organized crime, or security can still be removed despite the ADR.

An ADR is currently in place for certain regions in Somalia (Middle Shabelle, Afgoye, and Mogadishu), the Gaza Strip, Syria, Mali, the Central African Republic, South Sudan, Libya, Yemen, Burundi, Venezuela and Haiti.

H&C Applications

Pursuant to the Federal Court of Canada decision in Bawazir v. Canada (Citizenship and Immigration), 2019 FC 623, the existence of an ADR should not negate the hardship analysis that officers conduct in humanitarian & compassionate applications.  As Justice Norris noted:

One can certainly understand why Mr. Bawazir would like to secure his status in Canada by obtaining permanent residence here. In my view, a reasonable and fair-minded person would judge the requirement that he leave Canada and go to a war zone where a dire humanitarian crisis prevails so that he could apply for permanent residence as a misfortune potentially deserving of amelioration. The existence of the ADR demonstrates that Canada views the conditions in Yemen as a result of the civil war to “pose a generalized risk to the entire civilian population.” The conditions are so dire there that, with a few exceptions, Canada will not remove nationals to that country. Applying the usual requirements of the law in such circumstances clearly engages the equitable underlying purpose of section 25(1) of the IRPA (cf.

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Borderlines Podcast #29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead

29th May 2019 Comments Off on Borderlines Podcast #29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead

Last Updated on May 29, 2019 by Steven Meurrens

Molly Joeck and Erica Olmstead are lawyers with Edelmann & Co. They, along with Peter Edelmann, acted for the Canadian Council for Refugees as interveners before the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina.

In Chhina the issue before the Supreme Court was whether immigrant detainees have access to habeas corpus. We discuss Chhina, how immigration detention works in Canada, habeas corpus and issues going forward.

2:20 – Why would someone be detained in Canada for immigration reasons?

3:50 – In the federal detention review system who decides if an immigrant should be detained? What is the Immigration Division?

4:30 – How often would an immigrant who is detained have their detention reviewed?

5:30 – What are some issues arising with long term detention?

12:20 – Is there a difference in the issues that arise in long term detention in Ontario as opposed to British Columbia?

18:00 – Is an immigrant refusing to assist with removal by not getting a passport grounds for detention?

24:30 – What is habeas corpus?

27:30 – Why would someone in immigration detention want access to habeas corpus?

30:30 – Why is habeas corpus an alternative to federal court judicial review?

36:00 – The majority in Chhina appears to have commented negatively on certain aspects of the federal detention review process without striking it down. Why did they not just strike it down?

41:00 – How long do habeas corpus applications take?

46:00 – How many times can someone file habeas corpus applications?

51:00 – How has the Immigration Division reacted to the spate of habeas applications?

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Borderlines Podcast #28 – Canada’s Caregiver Programs

22nd May 2019 Comments Off on Borderlines Podcast #28 – Canada’s Caregiver Programs

Last Updated on May 22, 2019 by Steven Meurrens

Natalie Drolet is the Executive Director / Staff Lawyer for the Migrant Workers Centre.

We discuss the history of Canada’s caregiver programs, current issues and what the future looks like.

2:30 – What is a caregiver and how have Canada’s caregiver work permit and immigration programs traditionally worked?

7:00 – What are employer specific work permits? How do these impact caregivers?

14:40 – How do Canadian caregivers find families who are overseas?

16:00 – Why is the caregiver program necessary? Why are Canadians not applying for these positions? What role do wages play?

21:10 – How does the Interim Pathways program work?

29:14 – Could an Expression of Interest Intake model come to the caregiver program?

31:30 – What are employer compliance issues in the caregiver program? What are some of the abuses that occur?

38:00 – Are the problems now similar to problems that the program has traditionally faced?

43:00 – Where do caregivers live out typically stay?

45:00 – What will the program likely look at in the future?

56:00 – Do the caregiver programs allow governments to avoid funding daycare?

57:30 – Where do most caregivers come from?

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Sponsoring Someone Who is Out of Status in Canada

22nd May 2019 Comments Off on Sponsoring Someone Who is Out of Status in Canada

Last Updated on May 22, 2019 by Steven Meurrens

It is generally well known that Canadian citizens or permanent residents wishing to sponsor their spouses or common-law partners from abroad can typically do so.  As well, most people know that Canadians who live with their spouses or common-law partners who are inside Canada as legal visitors, workers or students can sponsor them as well.  What is less known is that they can also sponsor those who are in Canada without status.

Requirements

Canada since 2005 has had a public policy in which Immigration, Refugees and Citizenship Canada will process permanent residence applications from the spouses and common-law partners of Canadian citizens and permanent residents in Canada who do not have legal immigration status.  The objective of the policy is to facilitate family reunification and facilitate processing in cases where families are already residing together in Canada.  It is to prevent the hardship caused by family separation.

Lack of legal immigration status includes people who overstayed visas or permits, people who worked or studied without authorization from the government to do so, people who entered in Canada without required visas and people who entered Canada without valid passports.  The most typical situation involves people who travelled to Canada, became romantically involved with a Canadian, and then forgot that they needed to leave Canada by the end of their authorized stay.  It also frequently occurs where people did try to extend their status in Canada, but their applications were returned due to incomplete forms or incorrect fee payments.

The public policy does not extend to those who were previously deported and returned to Canada without authorization, those who entered Canada with fraudulent or improperly obtained passports or visas and those who are facing deportation for reasons such as misrepresentation or criminality.

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Work Permits Under The North American Free Trade Agreement

19th May 2019 Comments Off on Work Permits Under The North American Free Trade Agreement

Last Updated on May 19, 2019 by Steven Meurrens

(the following is largely paraphrased from the IRCC website)

The North American Free Trade Agreement (“NAFTA“) is a free trade agreement between Canada, the United States and Mexico.  It facilities the temporary entry of individuals, including providing certain Americans and Mexicans with the ability to work in Canada without first requiring Labour Market Impact Assessments (“LMIAs“).

NAFTA does not assist permanent admission, does not apply to permanent residents of the United States and Mexico and does not remove the need for Americans and Mexicans to undergo security screening before entering Canada.

The categories are:

  • Business Visitors;
  • After – Sales Services;
  • Investors;
  • Intra-Corporate Transferees; and
  • Professionals.

Business Visitors

To qualify as a business visitor, an American or Mexican citizen must be entering Canada to conduct activities that are international in scope, have no intention to enter the Canadian labour market, have their primary source of remuneration be outside of Canada and their principal place of business remain outside of Canada.

For example, business visitors engage in international business activities related to research and design; growth, manufacture and production; marketing; sales; distribution; after-sales service; and general service.  Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional or business conventions or meetings and soliciting business.

Marketing includes trade fair and promotional personnel attending a trade convention.

Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the U.S. or Mexico qualify for entry as Business Visitors, however, they cannot deliver goods or providing services. 

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What Happens After a Judicial Review

4th May 2019 Comments Off on What Happens After a Judicial Review

Last Updated on May 4, 2019 by Steven Meurrens

The Federal Court of Canada (the “Federal Court”) has the jurisdiction to review immigration decisions, including those of Immigration, Refugees and Citizenship Canada (“IRCC”) and the Canada Border Services Agency (“CBSA”).  The Federal Court will not order a specific result.  Rather, the Federal Court will order that the application be sent back for re-determination by a different officer.

Many people often wonder how that process works.

I recently obtained through a Proactive Disclosure a copy an Access to Information Act request that somebody else submitted which provides insight to these questions.  The request stated:

Please send me all information that you have on how your institution responds to orders from the Federal Court or the Federal Court of Appeals to re-evaluate refused Temporary Resident Visa (TRV) applications, including, but not limited to: – any penalties or other actions that your institution imposes on visa officers refuse TRV applications that the Federal Court ordered to be re-evaluated, including, but not limited to penalties, reductions in salaries, reductions in employment rank, retraining, termination of employment, notes in performance evaluations, verbal warnings, written warnings, etc. – any changes to training materials, procedures, etc. Please also send me information on whether your institution keeps track, at a visa officer level, of the number of visa applications that each visa officer evaluates, the number that the visa officer refuses, and the number of refused applications that the Federal Court has ordered to be re-evaluated. If your institution keeps track of this information for each visa officer, then please send me this information, along with information you have about each visa officer, including but not limited to: dates and places of employment as a visa officer,

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The Student Direct Stream (SDS)

2nd May 2019 Comments Off on The Student Direct Stream (SDS)

Last Updated on May 2, 2019 by Steven Meurrens

On May 2, 2019 Immigration, Refugees and Citizenship Canada unveiled the Student Direct Stream (the “SDS”), an expedited study permit processing program available to legal residents of India, China, Philippines and Vietnam.

Eligibility 

To be eligible for the SDS, an applicant must:

  • be a legal resident of India, China, Philippines and Vietnam;
  • provide proof of a valid language test result, completed within 2 years of the date of the SDS application, showing an IELTS score of 6.0 or higher in each language skill, or a TEF score that is equivalent to Canadian Language Benchmark 7;
  • provide proof of a Guaranteed Investment Certificate “GIC” of CAN $10,000.00 or more issued from any bank that is insured by the Canadian Deposit Insurance Corporation (“CDIC”) or any bank listed on the IRCC SDS webpage;
  • provide proof of full payment of tuition for their first year of study;
  • provide a letter of acceptance to a Designated Learning Institute (a “DLI”);
  • complete an upfront medical exam.

 

The GIC must meet the following criteria:

  • when the GIC has been purchased, the bank provides a letter of attestation, the GIC certificate, the Investment Directions Confirmation or the Investment Balance Confirmation to the applicant;
  • the bank holds the funds in an investment account or a student account that is inaccessible for release to the applicant until the applicant’s arrival in Canada;
  • upon entry to Canada, the bank must validate the client’s identity before releasing funds to the study permit holder; and
  • the applicant receives an initial disbursement upon identifying themselves, and the remaining funds are disbursed in monthly or bi-monthly installments over a period of 10 to 12 months.

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Missing Deadlines

1st May 2019 Comments Off on Missing Deadlines

Last Updated on May 1, 2019 by Steven Meurrens

As per the Federal Court of Canada decision in Haile v. Canada (Citizenship and Immigration), 2019 FC 538, it is a breach of procedural fairness to set aside the principle of audi alteram partem on the basis of a short delay in the delivery of the written submissions.

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