Article 1E of the 1951 Refugee Convention states:
This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.
The leading case for interpreting Article 1E is Canada (Citizenship and Immigration) v. Zeng, 2010 FCA 118. There, the Federal Court of Appeal stated:
Considering all relevant factors to the date of the hearing, does the claimant have status, substantially similar to that of its nationals, in the third country? If the answer is yes, the claimant is excluded. If the answer is no, the next question is whether the claimant previously had such status and lost it, or had access to such status and failed to acquire it. If the answer is no, the claimant is not excluded under Article 1E. If the answer is yes, the RPD must consider and balance various factors. These include, but are not limited to, the reason for the loss of status (voluntary or involuntary), whether the claimant could return to the third country, the risk the claimant would face in the home country, Canada’s international obligations, and any other relevant facts.
In Desir v. Canada (Citizenship and Immigration), 2019 FC 1164, the Federal Court stated that the burden is on the Minister of Citizenship and Immigration to establish a prima facie case that a claimant holds or held status substantially similar to that of nationals in a third country before being able to invoke Article 1E. The Court also found that a claimant’s choice to allow his or her status in a third country to expire amounts to an impermissible form of asylum shopping.Read more ›
Prospective temporary foreign workers in addition to deciding which work permit program they will apply to also need to decide how they will apply for their work permit. There are generally two options. The first is to apply either online or at a Visa Application Center to Immigration, Refugees and Citizenship Canada (“IRCC”) and wait for it to be approved before travelling to Canada. The second is to submit the application to the Canada Border Services Agency (“CBSA”) when entering Canada. There are advantages and disadvantages to each approach.
The Initial Work Permit
Foreign nationals who need a temporary resident visa to visit Canada must submit their work permit applications either online or at a Visa Application Center before they travel to Canada. However, those who do not require a temporary resident visa to visit Canada can apply in person at a port of entry. There are many advantages to applying at a port of entry, and it is typically the preferred approach. First, while IRCC’s work permit processing times range from two weeks to several months, the CBSA will process work permits on the spot. Second, many applicants prefer interacting face to face and speaking with the person who is adjudicating their application. While IRCC will often simply refuse a work permit application because of missing or vague information, the CBSA will essentially interview the person to fill in the gaps.
There are, of course, disadvantages to applying for a work permit in person at a port of entry. First, some people simply do not interview well, especially if English or French is not their first language. Second, if CBSA refuses the work permit application, the person will likely be told that they have to go back to their country of origin, and be denied entry to Canada.Read more ›
Andrew Hayes is a US immigration lawyer who practices in Vancouver.
In this episode we discuss how the immigration systems of Canada and the United States each deal with the issue of immigrants and social assistance.
How similar is the “public charge” rule in the United States and “financial inadmissibility” in Canada? What is a sponsorship bar? Can permanent residents be deported for imposing a fiscal burden on the state?
00:30 – How does US immigration law and policy development work?
1:45 – What is the public charge rule?
2:30 – What is an affidavit of support?
4:00 – Does the United States have a points based economic immigration system?
5:40 – What are the concerns about Donald Trump’s changes from a substantial impact?
8:00 – What is the Low Income Requirement in Canada? Is there a similar requirement in the United States?
11:00 – There are often situations where the sponsor of a family member may be poor, but the breadwinner of the family is the prospective immigrant. How does Canadian and American immigration law account for this?
13:00 – Are affidavits of support usually enforced? What about sponsorship undertakings?
23:00 – How does financial inadmissibility work in Canada?
25:30 – What is the consequence of being determined to be financially inadmissible?
27:00 – Can a permanent resident of Canada be financially inadmissible to Canada? What about to the United States?
38:20 – Can someone be medically inadmissible to the United States?
43:30 – How are the courts likely to react to Trump’s changes to the public charge rule?
57:20 – Can refugees be financially inadmissible?Read more ›
Sean Rehaag is an Associate Professor at Osgoode Hall Law School. His academic research focuses on empirical studies of immigration and refugee law decision-making processes.
Sean, Deanna, Peter and Steven discuss his quantitative research which has used large data-sets to study extra-legal factors that influence outcomes in Canadian refugee adjudication. Does immigrating to Canada, getting refugee status or winning a judicial review simply depend on the luck of who decides your application?
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Jamie Chai Yun Liew is a law professor at University of Ottawa and an immigration lawyer. She acted for the Canadian Council for Refugees as intervener before the Supreme Court of Canada in Kanthasamy v. Canada (Citizenship and Immigration).
Jamie, Peter, Deanna and Steven discusses humanitarian & compassionate considerations in Canadian immigration law, including the Supreme Court of Canada decisions in Baker and Kanthasamy. We also discussed Regulation 117(9)(d), which excludes unexamined family members from future sponsorship, and the recently announced pilot to mitigate the impact of this exclusion.
2:45 – What is Regulation 117(9)(d)?
6:30 – What is a Family Member?
7:00 – What does it mean to be “examined” for immigration purposes?
7:30 – What are the consequences of someone’s ability to immigrate to Canada if they have an inadmissible family member?
14:00 – How does IRPR r. 117(9)(d) work to exclude immigration?
15:45 – Why would someone not declare a family member when they immigrate?
26:00 – What options are available to bring a family member excluded by Regulation 117(9)(d) to Canada?
33:00 – What is the difference between a humanitarian & compassionate application vs. a family sponsorship?
36:00 – What was the Supreme Court of Canada decision in Baker?
39:00 – What was the Supreme Court of Canada decision in Kanthasamy?
50:00 – What were the Minister’s recent announcements regarding Regulation 117(9)(d)?Read more ›
Immigration, Refugees and Citizenship Canada (“IRCC“) has a call-center to provide customer service. The information is here:
Telephone: 1-888-242-2100 (in Canada only)
- Automated telephone service (available 24 hours a day, 7 days a week)
If you have a touch-tone telephone, you can listen to pre-recorded information about our programs, and check the status of your application.
- Client Support Centre agents – Monday to Friday, 8 a.m. to 4 p.m., your local time, except for statutory holidays. Services are available in French and English.
Agents can help you with general and case specific enquiries. They cannot:
- make decisions on applications
- help process applications faster, unless you meet the criteria for urgent processing
Relying on the Call Center
In Ni v. Canada (Citizenship and Immigration), 2014 FC 725, the IRCC call-center instructed an applicant to provide a certain document, and made a representation that this would result in the approval of the application. The applicant did just that, and the application was refused. Justice Brown wrote:
… the failure of justice in this case arises solely from the Applicant following CIC’s instructions. Therefore, as between these two parties, responsibility must fall on the party who directed the erroneous course of conduct, which is in this case is CIC through its call centre. The Applicant cannot be required to suffer the loss of her PGWP, loss of temporary student resident status and her immediate removal from Canada, simply because she followed CIC’s instructions even though those turned out to be incorrect.
Contacting the IRCC Call Center
When the IRCC call-center e-mails someone, it is important that applicants follow their instructions.Read more ›