The following is an e-mail exchange between an immigration representative and Citizenship and Immigration Canada regarding expungements. The Federal Skilled Worker Program allows certain individuals employed in Canada without a Labour Market Opinion to qualify for Arranged Employment. As with any program, questions emerged regarding specific requirements, including whether intra-company transferees qualify for Arranged Employment without a Labour Market Opinion. Please note that what I have reproduced below should not be viewed as legal advice. The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. Question – May 15, 2013 Dear CIC, I would be grateful if you would kindly answer the following question about the Canadian Experience Category (“CEC”): My question relates toR. 87.1(3)(c) and in particular the wording near the end of this subsection which reads “and any period of full-time study or training”. That wording appears to be a “carry over” from the previous iteration of the CEC category, when there was a “graduates” stream and a “foreign worker” stream. Now that the concept of qualifying education in Canada is no longer part ofthe CEC category, the existence of this wording inR. 87.1(3)(c) is confusing. … Read More
Sponsors
Part 7 Division 3 of the Immigration and Refugee Protection Regulations (the “IRPR”) governs who can be a sponsor. It provides that in order to sponsor family members, a sponsor must: be 18 years of age or older; be a Canadian citizen or permanent resident; currently residein Canada if they are a permanent resident; file a sponsorship application in respect of a family member in accordance with section 10; and if the sponsor landed as a principal applicant through a family reunification stream, wait 5 years since the date of landing before they submit the sponsorship application. Although the IRPR does not explicitly state it, Registered Indians are also eligible to sponsor family members. Legislation Training Manuals Several Family Class training manuals.
Spousal Sponsorships where the Sponsor Does not Live in Canada
Section 133(2) of the Immigration and Refugee Protection Regulations (the “Regulations”) provides that: A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes [an application to sponsor a member of the Family Class] and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident. (Emphasis Added) Immigration, Refugees and Citizenship Canada (“IRCC“) may scrutinize in some detail the sponsor’s intention to actually reside in Canada with their spouse, or to simply get the principal applicant permanent resident status without actually immigrating to Canada. Permanent residents may not sponsor from outside Canada under any circumstances. Questions The Embassy of Canada in the United Arab Emirates previously asked applicants to complete a Residency Questionnaire for their sponsors if they reside outside of Canada. These questions can serve as a useful guide to anyone submitting a family class application where s. 133(2) of the Regulations applies. Is your sponsor currently a Canadian citizen or a Permanent Resident? Is your sponsor currently in Canada? If yes, then how long has the sponsor been physically residing … Read More
Expungements, Pardons and Inadmissibility
A question that often gets asked is whether a United States pardon or expungement results in a person no longer being inadmissible to Canada. Expungements As noted in IRCC’s 2021 United States Criminality Assessment Guide (the “IRCC NY Guide“), in reviewing a rehabilitation application that includes an expungement or other permanent relief mechanism, it is recommended that a thorough review be conducted to determine whether the relief issued by the individual state equates to the conditions of a record suspension in Canada. Canada (Minister of Citizenship and Immigration) v. Saini, [2001] F.C.J. No. 1577 is the leading case in relation to the recognition of foreign pardons. There, the Federal Court of Canada created a three pronged test to establish whether Canadian law will recognize a foreign pardon or expungement. The test is: The foreign legal system as a whole must be similar to the Canadian one; The content, aim and effect of the foreign law in question must be similar to the Canadian law; and No other valid reason exists that would compel Canadian authorities not to recognize the effects of the foreign law. According to the IRCC NY Guide, IRCC has determined that the United States possesses legal traditions … Read More
The CBSA Databases – ICES, FOSS, CPIC, and NCIC
In 2013 the Federal Court released its decision in Martin-Ivie v. Canada (Attorney General), 2013 FC 772 (“Martin-Ivie“), a case which involved a Canada Border Services Agency (“CBSA“) officer who sued CBSA over what she regarded as safety issues. The case revealed much about the operations of the CBSA at land ports of entry. I have combined information from Martin-Ivie with what is found in the People Processing Manual and the Customs Enforcement Manual to help provide further understanding of what CBSA officers are looking at on their computers at primary inspection (“Primary“). The Databases There are four databases which CBSA officers have access to at Ports of Entry. Integrated Customs Enforcement System (“ICES”) ICES is a national Canadian database of lookout information and enforcement activities that, amongst other things, contains information about Canadians who have come into contact with CBSA, or individuals who might seek to enter the country and might pose a risk. In addition to traveller records, ICES contains information on customs seizures for a period of five years. As well, ICES contains a record of every vehicle (and theoretically individual person) entry into Canada. (Practitioners generally request copies of ICES when representing individuals in permanent resident card renewal … Read More
The BC PNP Has Re-Opened with all New Programs
On July 2, 2015, the British Columbia Provincial Nomination Program (“BC PNP“) re-launched with new program requirements and processes. The BC PNP remains divided into the Skills Immigration stream and the Entrepreneur Immigration stream. The most significant changes to the BC PNP include: Introducing an online application process with an electronic payment system; Streamlining the Business Skills and Regional Business programs into one Entrepreneur Immigration stream based on an expression of interest model similar to Citizenship and Immigration Canada’s (“CIC”) Express Entry program; Capping the intake in the Skills Immigration program to 200 new applications in 2015 (Express Entry BC, the Health Care Professionals Stream, and the North East Pilot Project are excluded from this cap); and Requiring in the Skilled Immigration Stream that applicants with job offers in National Occupational Classification (“NOC”) B positions pass an English language test. Skills Immigration and Express Entry BC The Skills Immigration is divided into the following substreams: Skilled Worker Health Care Professionals International Graduates International Post-Graduates Entry Level and Semi-Skilled North East Pilot Project As well, the Express Entry BC stream is divided into the following substreams: Skilled Worker Health Care Professional International Graduate International Post-Graduate Most of the requirements to the Skills Immigration … Read More
When Procedural Fairness Requires a Fairness Letter
One of the most complicated topics in immigration law is determining when procedural fairness will require an immigration officer who is assessing an application to seek clarification in the form of a fairness letter or interview. As the Supreme Court of Canada noted in Baker v. Canada (Minister of Citizenship and Immigration) the the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case. When a visa officer does not rely on third party extrinsic evidence to make a decision it can often appear unclear when exactly it is necessary for an officer to afford an applicant an interview or a right to respond to the officer’s concerns. However, there will be a right to respond under certain circumstances. Requirement to Provide Complete Applications Visa officers do not have any legal responsibility to advise applicants of incomplete or inadequate applications. In Kaur v. Canada (Citizenship and Immigration), 2010 FC 758, for example, the Federal Court dismissed a judicial review application of a visa officer’s refusal of an applicant under the Federal Skilled Worker Program. A visa officer determined that the application was deficient as it failed to include required information regarding … Read More
Substituted Evaluations for Federal Skilled Worker and Federal Skilled Trade Applicants
There is a myth amongst potential Federal Skilled Worker Program applicants that their application is guaranteed if they can get 67 points. This is not true for several reasons, including the possible use of substituted evaluations.
The Bill of Rights and Canadian Immigration
The Canadian Bill of Rights, S.C. 1960, c. 44 (the “Bill of Rights“) is a Canadian federal statute that was enacted in August 1960. It is quasi-constitutional in nature. As it is an Act of Parliament it applies only to federal law. It also predates the Charter of Rights and Freedoms, which has largely superseded the Bill of Rights in importance. However, not all of the provisions of the Bill of Rights were reproduced in the Charter of Rights and Freedoms. Section 2(e) of the Bill of Rights provides: 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to […] (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. In Canadian National Railway Company, the Federal Court established that four basic conditions must be met … Read More
Differential Treatment for People from Africa
An unfortunate reality of Canada’s immigration system is that one’s country of citizenship can impact the likelihood of success in a visa application. When it comes to visitor visas, study permits and work permits certain source countries consistently have higher approval rates than others. The approval rate for people from Africa has been consistently lower than other regions for years. In October 2021 Immigration, Refugees and Citizenship Canada (“IRCC”) published a report titled “IRCC Anti-Racism Employee Focus Groups.” IRCC employees in the report stated what many already suspected, which is that applications from Africans are often treated with more scrutiny than elsewhere. Statistics The statistics for Africans submitting temporary residence applications are mostly abysmal. This is especially the case for Africa’s largest country, Nigeria. For example, from January – June 2020 the study permit approval rate for the top ten source countries of applicants to Canada was, in alphabetical order, Bangladesh (27%), Colombia (66%), India (51%), Iran (30%), Japan (97%), Korea (95%), Nigeria (12%), People’s Republic of China (64%), Philippines (57%), Vietnam (56%). For some of Africa’s other large source countries of applicants the rates were 18% for Ethiopia, 26% for Kenya, 20% for the Congo, and 54% for South … Read More