Open Spousal Work Permits and Marriage Genuineness

30th Apr 2020 Comments Off on Open Spousal Work Permits and Marriage Genuineness

While the assessment of the bona fides of a marriage has long been a requirement in Canada’s family reunification programs, it has traditionally not been a significant factor in temporary residence applications.  This has recently changed, especially for those submitting applications to Canadian visa posts in India, and at the start of 2020 there were numerous Federal Court of Canada decisions involving refusals of open spousal work permit applications because of concerns over the genuineness of marriages.  Many applicants were also barred from entering Canada for five years due to misrepresentation.

As discussed below, the increase in misrepresentation findings in open spousal work permit applications has been a deliberate Immigration, Refugees and Citizenship Canada (“IRCC”) policy choice.  Canadian visa officials are explicitly trying to “send a message” to communities in India where they believe that marriages of convenience are increasingly occurring.  Federal Court jurisprudence on the procedural fairness required in such cases is still developing, and it remains to be seen whether the courts are going to impose greater procedural fairness requirements than what is generally expected in temporary residence applications.

In order to understand the e-mails and internal public policies obtained through Access to Information Act requests below, it is important to understand that there are two types of open-spousal work permits.   The first is for the spouses or common-law partners of skilled workers, which fall under Labour Market Impact Assessment (“LMIA”) exemption classification C-41.  The second is for spouses or common-law partners of full-time international students in Canada, or LMIA exemption classification C-42. Other acronyms to be aware of include R4, which is the Canadian immigration regulation that prohibits marriages of convenience (or MOCs) from Canadian immigration programs, and A40, which is the Canadian immigration legislative provision which bans people who have committed misrepresentation from immigrating to Canada for five years.

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COVID-19 and Canadian Immigration

23rd Apr 2020 Comments Off on COVID-19 and Canadian Immigration

Last updated on May 13th, 2020

In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada.  These include:

  1. Prohibiting Symptomatic Individuals from Entering Canada
  2. Restricting who can Travel to Canada from the United States of America
  3. Restricting who can Travel to Canada Internationally
  4. Masks During Travel and Self-Isolation Upon Arrival into Canada
  5. Suspending the Processing of Certain Temporary Residence Applications
  6. Providing Flexibility for Students
  7. Introducing new Rules for Employers of Foreign Workers
  8. Introducing a new Ground of Inadmissibility for Failure to Self-Isolate
  9. Not Returning Incomplete Permanent Residence Applications
  10. Suspending the Collection of Biometrics
  11. Suspending Immigration and Refugee Board Hearings
  12. Suspending Federal Court Timelines

Please note that the Canadian government is expected to amend its policies as needed in the coming weeks and months and as such we ask that you contact us for advice before relying on the information provided in this memo. Note also that validity of these orders may be extended or cancelled at any time.

  1. PROHIBITING SYMPTOMATIC INDIVIDUALS FROM ENTERING CANADA

On April 17, 2020 Transport Canada enacted Interim Order to Prevent Certain Persons from Boarding Flights to Canada due to COVID-19, No. 6.  It provides that any persons exhibiting COVID-19 symptoms will not be allowed to board an aircraft to fly into Canada, regardless of their status in Canada.  This includes Canadian citizens.

Air operators are required to do a health check for all air travellers before they board the flight based on guidance from the Public Health Agency of Canada.

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Visiting Professors and Work Permits

20th Apr 2020 Comments Off on Visiting Professors and Work Permits

Regulation 205(b) of the Immigration and Refugee Protection Regulations provides that a work permit may be issued under section 200 to a foreign national who intends to perform work that would create or maintain reciprocal employment of Canadian citizens or permanent residents of Canada in other countries.

The Immigration, Refugees and Citizenship Canada Guidelines (the “Guidelines”) state that visiting professors may be issued work permits pursuant to R205(b).

Eligibility

To be eligible, an applicant must:

  • be applying for a work permit of not more than two academic years;
  • to take a position with a post-secondary institution; and
  • retain their position abroad.

Visiting professors may also include those on sabbatical who are doing collaborative research with a Canadian post-secondary institution.

The term “retain their position abroad” means that the professor must maintaing their employment abroad as a professor.

Extensions

Work permits for visiting professors are authorized for a maximum period of two academic years.

Visiting professors are not eligible to extend their work permits under this category, and their employers must apply for a Labour Market Impact Assessment to extend their stay.

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Remorse

13th Apr 2020 Comments Off on Remorse

Whether an individual is remorseful is a factor in assessing humanitarian & compassionate considerations.

In Pu v Canada (Citizenship and Immigration), 2018 FC 600 Justice Diner held that:

With respect to remorse, the IAD concluded that the Applicant’s remorse was not genuine principally because (a) she had continued to misrepresent her position in 2009, and (b) at the IAD hearing she had attempted to deflect responsibility for her earlier actions. The IAD acknowledged the Applicant’s expressions of remorse at the appeal, but found that she had had since 2009 to take responsibility for her actions, and that the Applicant was ultimately remorseful only for having been caught at the hearing — several years after her initial interview with CBSA, during which she again misrepresented the circumstances of the marriage.

Although the Applicant disagrees that she deflected responsibility at the IAD appeal, I am of the view that the IAD’s findings were reasonably open to it based on the evidence before it. I also note that the IAD’s reasoning is consistent with other areas of law where late-stage accountability can weigh significantly against a party who seeks discretionary relief.

To conclude on this issue, I will cite from the IAD’s comments in Lin v Canada (Minister of Public Safety and Emergency Preparedness), 2017 CanLII 26505 (CA IRB), which are on point for this case:

Remorse is defined as deep regret or guilt for a wrong committed, and a feeling of being sorry for doing something bad or wrong in the past. There are two components to remorse in the context of a misrepresentation: one involves the actions preceding the IAD appeal; and the other is the expression of remorse in testimony at the appeal itself.

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IRCC Increasing Processing Fees

7th Apr 2020 Comments Off on IRCC Increasing Processing Fees

Immigration, Refugees and Citizenship Canada is increasing processing fees.

  • Starting in 2020-21, permanent resident processing fees for Economic class applicants increase as follows:
    • Fees for principal applicants of the Economic business class (including self-employed, start-up visa, Quebec investor, Quebec entrepreneur, and Quebec self-employed) will increase from $1,050 to $1,575 (an increase of 50%).
    • Fees for principal applicants of the Economic non-business class will go from $550 to $825 (an increase of 50%). Note: this increase will not apply to fees for principal applicants and their families in the Caregivers programs, which will remain unchanged.
    • Fees for spouses or common-law partners of all Economic classes will go from $550 to $825 (an increase of 50%).
    • Fees for dependent children of all Economic classes will go from $150 to $225 (an increase of 50%).
    • The right of permanent resident fee will increase from $490 to $500 (an increase of 2%).
  • Starting in 2022-2023, on the day of the two-year anniversary of the coming into force of these Regulations and every two years thereafter, selected permanent resident processing fees will be increased every two years by the applicable Consumer Price Index (CPI) increase, rounded to the nearest $5. The approximation assumption being that the CPI is 2% per year on average, but the fees would nevertheless be subject to inflation calculated cumulatively from the time of coming into force. The following prospective fee increases below are provided for illustrative purposes only:
    • Permanent resident processing fees for all economic business class principal applicants (including self-employed, start-up visa, Quebec investor, Quebec entrepreneur, and Quebec self-employed) will be increased to approximately $1,640 (projected) in 2022-2023, to $1,705 in 2024-2025, and so on.
    • Permanent resident processing fees for most economic non-business class principal applicants (including federal skilled workers,

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Applying to Immigrate During COVID19

1st Apr 2020 Comments Off on Applying to Immigrate During COVID19

Last updated on April 6th, 2020

During the last two weeks of March, 2020, the Government of Canada implemented many measures in response to the COVID19 pandemic.  In the immigration context, these measures included travel bans, the suspension of biometrics and the transition of most Immigration, Refugees and Citizenship Canada (“IRCC”) officers to remote work.  The changes were frequent, dramatic and difficult to keep up with.  They have left a lot of prospective immigrants wondering what exactly is open with regards to Canada’s immigration programs.

 

Please note that this article was written on April 1, 2020.

 

Travel Bans

 

Canada is currently denying boarding to most foreign nationals on flights to Canada.   There are, however, numerous exemptions to this.

 

First, individuals who are travelling from the United States who have been in the United States for at least 14 days before they try to travel to Canada by land, sea or air, can travel to Canada if they are asymptomatic.  Such individuals must show that they are coming to Canada for essential reasons and not for reasons that are optional or discretionary, such as tourism, recreation or entertainment.

 

Second, all temporary foreign workers, as well as international students who have a valid study permit or who were approved for a study permit before March 18, 2020, and foreign nationals who were approved for permanent residence before March 18, 2020, but who have not yet travelled to Canada to land as a permanent resident, can travel to Canada.

 

Third, the immediate family members of Canadian citizens and permanent residents can travel to Canada. Immediate family members includes spouses,

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