In response to the COVID-19 pandemic, the Canadian government has implemented several measures that impact immigration programs and the ability to enter Canada. Current measures under the Non-US OIC and the Quarantine OIC will be effective until June 30, 2020, while current measures under the US OIC will be effective until April 21, 2020, and current measures under the Interim Order are effective until further notice. 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. PERSONS ALLOWED INTO CANADA Before determining whether you fall into one of the categories below, please note that any persons exhibiting COVID-19 symptoms (e.g. fever and cough, or fever and breathing difficulties) will not be allowed to board an aircraft to fly into Canada, regardless of your status in Canada. This blanket prohibition affects Canadian citizens and permanent residents. You will, however, be allowed to enter Canada through the Canada–US land border, though you will be subject to the 14-day self-isolation requirement outlined in the Quarantine OIC. Please note that, … Read More
LMIA’s – The Job Creation Factor
Regulation 203(3)(a) of the Immigration and Refugee Protection Regulations (the “IRPR“) states: (3) An assessment provided by the Department of Employment and Social Development with respect to the matters referred to in paragraph (1)(b) shall, unless the employment of the foreign national is unlikely to have a positive or neutral effect on the labour market in Canada as a result of the application of subsection (1.01), be based on the following factors: (a) whether the employment of the foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents; The Temporary Foreign Worker Manual states that the following principles should guide the assessment of whether the employment of a foreign national will or is likely to result in direct job creation or job retention for Canadian citizens or permanent residents. First, an officer conducting an analyis of a Labour Market Impact Assessment (an “LMIA”) application should reflect a reasonable and balanced approach ensuring that officers od not base their decision solely on the outcome of one of the seven labour market factors. An employer can receive a positive LMIA even if this factor is assessed to be negative and an employer … Read More
Where to Apply for a Study Permit
Regulation 215 of the Immigration and Refugee Protection Regulations states that: 215 (1) A foreign national may apply for a study permit after entering Canada if they (a) hold a study permit; (b) apply within the period beginning 90 days before the expiry of their authorization to engage in studies in Canada under subsection 30(2) of the Act, or paragraph 188(1)(a) of these Regulations, and ending 90 days after that expiry; (c) hold a work permit; (d) are subject to an unenforceable removal order; (e) hold a temporary resident permit issued under subsection 24(1) of the Act that is valid for at least six months; (f) are a temporary resident who (i) is studying at the preschool, primary or secondary level, (ii) is a visiting or exchange student who is studying at a designated learning institution, or (iii) has completed a course or program of study that is a prerequisite to their enrolling at a designated learning institution; or (g) are in a situation described in section 207. IRPR 215(f)(iii) Regulation 215(f)(iii) has been the subject of judicial scrutinity. The Immigration, Refugees and Citizenship Canada Guidelines state: Prerequisite course or program of study in Canada before the main program of study As … Read More
ESDC – Determining Who the Employer Is
Canada’s Department of Employment and Social Development Canada (“ESDC“) administers the Temporary Foreign Worker Program (the “TFWP“). This is the program through which employers can obtain Labour Market Impact Assessments (“LMIAs“). The following is a partial reproduction of the TFWP Manual (an internal document) regarding who the employer is for the purpose of administering the TFWP. Who is the Employer ESDC policy states that an employer is an entity (e.g. person, business, corporation or organization) that makes an offer of employment to one or more foreign nationals who provide labour in return for compensation for a specified period of time. The employer is generally the entity that hires, controls working condititions and remunerates the foreign national. For the purpose of the Temporary Foreign Worker Program, charachteristics of the relationship, such as control and remuneration, including statutory benefits (e.g. CPP and EI) will be reviewed to determine when an employer – employee relationship exists. The total relationship will be examined and assessed, bearing in mind that no one factor is determinative and there is an extensive list of factors that may be examined. In cases where two or more entities are determined to share employer responsibilities by the Department, a group … Read More
Borderlines Podcast #34 – Canada and the Compact for Migration, with François Crépeau
François Crépeau is a Professor at the McGill Faculty of Law and the Director of the Centre for Human Rights and Legal Pluralism. He was the United Nations Special Rapporteur on the Human Rights of Migrants from 2011 to 2017. Peter Edelmann and François discuss migration issues generally, the Compact for Migration, and its implication for Canadian immigration and refugee law. This episode was recorded before Peter Edelmann was appointed to the British Columbia Supreme Court. 4:15 – What does a UN special rapporteur on migration do? 8:00 – What impacts could climate change have on the future of global migration patterns? 10:37 – How does Canadian refugee law address the issue of climate refugees? 21:00 – What led up to the Compact on Global Migration and what preceded it? How has migration historically been monitored / governed on a global scale? 28:00 – What is the international definition of a refugee? 31:3– What percentage of migrants would qualify as refugees? 33:30 – What is the Global Compact on Migration?
Borderlines Podcast #33 – Where Canada’s Political Parties Stand on Immigration
An overview of the immigration platforms, and general historic policies, of Canada’s political parties. 1:45 – Where do the parties stand with regards to letting provinces decide who immigrates? 13:28 – Immigration levels 23:30 – What are the promises with regards to border security and the Safe Third Country Agreement? 36:00 – Temporary Foreign Workers 42:00 – Application fees 46:00 – Settlement services and values tests 48:00 – Where parties can work together on and general trends.
Sponsoring Relatives other than Spouses, Parents, and Children
Canadian immigration legislation provides that a Canadian citizen or permanent resident may sponsor their spouse, common-law partner, child, parents or grand-parents to immigrate to Canada. It also provides that in certain circumstances a Canadian may sponsor another relative. Section 117(1)(h) of the Immigration and Refugee Protection Regulations (“IRPR“) provides that: A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is a relative of the sponsor, regardless of age, if the sponsor does not have a spouse, a common-law partner, a conjugal partner, a child, a mother or father, a relative who is a child of that mother or father, a relative who is a child of a child of that mother or father, a mother or father of that mother or father or a relative who is a child of the mother or father of that mother or father (i) who is a Canadian citizen, Indian or permanent resident, or (ii) whose application to enter and remain in Canada as a permanent resident the sponsor may otherwise sponsor. The following are key things to know about sponsoring relatives other than spouses, common-law partners, children, parents or grand-parents. 1. The Canadian sponsor must … Read More
The Supreme Court of Canada Decision in Vavilov
In December 2018 I wrote an article for The Canadian Immigrant about a Supreme Court of Canada case that had just been heard which could have a significant impact on Canadian immigration law. The case, Minister of Citizenship and Immigration v. Alexander Vavilov, was about whether a child who was born in Canada to Russian spies is a Canadian citizen. The Supreme Court of Canada before hearing the case announced that it was considering changing the law on how a legal principle called the “standard of review” works in Canadian administrative law. On December 19, 2019 the Supreme Court of Canada released its decision. The Supreme Court created a revised framework for the standard of review in judicial review applications. Vavilov has significant implications for how Canada’s Federal Court will review the decisions of immigration officials. Understanding The Standard of Review As I wrote in December, the standard of review pertains to how courts review administrative tribunal decisions. In the immigration context, administrative tribunals include visa officers, border officials and Immigration and Refugee Board of Canada members. The Federal Court has the jurisdiction to review all decisions of these tribunals, including visa refusals, stays of removal, deportation orders, etc. The … Read More
Implausibility
One issue that applicants, and in particular refugee claimants, face is that their stories often sound implausible to third party observers. Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 is the leading decision on implausibility findings in the refugee context. There, Justice Muldoon stated: A tribunal may make adverse findings of credibility based on the implausibility of an applicant’s story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu. In Leung v. M.E.I. (1994), 81 F.T.R. 303 (T.D.), Associate Chief Justice Jerome stated at page 307: Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to … Read More
De Facto Family Members
Many people are often try to sponsor an adult sibling only to learn that adult siblings (and adult children) are not eligible to be sponsored under the family class. However, in certain cases, such individuals may be eligible for humanitarian & compassionate grounds as de facto family members.