Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.
LMIA Exemption for Francophones
Immigration, Refugees and Citizenship Canada (“IRCC“) has a program to facilitate the ability of francophone foreign workers to enter Canada. The benefit of the program, called Moibilte Francophone, is that no Labour Market Impact Assessment (“LMIA“) is required. This means that employers of prospective francophone foreign workers do not need to pass a labour market test in order to employ francophone foreign workers. To qualify for the LMIA exemption, applicants must: apply at a visa office outside Canada; be going to work in an occupation which falls under National Occupation Classification 0, A or B; have French as his/her habitual language; and be destined to a province other than Quebec. Here are some other key things to note about the program. 1. Recruitment through a francophone immigration promotional event coordinated between the federal government and francophone minority communities is no longer required. Previously, participation in Moibilte Francophone was restricted to prospective foreign workers recruited through government promotional events. This requirement, which the government interpreted incredibly broadly in any event, is no longer the case. Previously, the program worked as follows: 2. Habitual French speaking abilities are required, but not for the job. To approve the work permit application officers must be satisfied … Read More
Maintained (Implied) Status – What It is, and What Changed Recently
Maintained (previously known as implied) status is perhaps one of the most misunderstood concepts of Canada’s immigration system. Many mistakenly question its legality. Others fail to appreciate its unique requirements, and abruptly find themselves without status. Recent procedural changes and court decisions in Canada have only added to the confusion. Implied Status Regulations 183(5), 186(u), and 189 of the Immigration and Refugee Protection Regulations (“IRPR”) provide the legal basis for implied status. In brief, if a foreign worker, international student, or visitor files an application to extend his (or her) status in Canada, then he may remain in Canada on the terms of his original status until Immigration, Refugees and Citizenship Canada (“IRCC”) makes a decision on his extension application. Accordingly, a foreign worker can continue to work, an international student can continue to study, and a visitor can continue to reside in Canada during IRCC’s processing of the extension application. Considering that as of writing visitor, worker, and student extension applications took IRCC 75, 60, and 42 days respectively to process, the extra time that implied status can allow an individual to carry on with his life in Canada can be significant. In order to take advantage of maintained … Read More
Work Permits for Vulnerable Workers
Section 207.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) states that (modified for ease of reading): 207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they (a) hold a work permit; or (b) previously held a work permit, have applied for a renewal of that permit and are authorized to work in Canada under implied status. Family member of vulnerable worker (2) A work permit may be issued to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b). In other words, temporary foreign workers in Canada who are experiencing, or have experienced abuse, can apply for open work permits. People who have engaged in unauthorized work or have not complied with employment conditions are not excluded from the program. The objectives of IRPR r. 207.1 are to: provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer; mitigate the … Read More
Work Permits and Permanent Residence Options for Hong Kong Nationals
In 2021 Immigration, Refugees and Citizenship Canada introduced facilitative measures to provide open work permits to residents of Hong Kong and facilitative measures creating two pathways to permanent residence to facilitate the immigration of certain Hong Kong residents. Work Permits The public policy allows for the issuance of open work permits to eligible residents of Hong Kong, whether they are in Canada or abroad, for a period of up to three years. Eligible family members may also be issued an open work permit. To be eligible, the foreign national must: hold a valid passport issued by the Hong Kong Special Administrative Region or the United Kingdom to a British National Overseas; have graduated no more than 10 years before theyapply for this open work permit, with one of the following: a degree (for example, associate, bachelor’s, master’s or doctoral) from a designated post-secondary learning institution in Canada or an institution abroad; a diploma for a minimum 2-year program from a designated post-secondary learning institution in Canada or an institution abroad; or a graduate or post-graduate credential from a program of at least 1 year that required the completion of a post-secondary degree or diploma, as a prerequisite for acceptance into … Read More
Understanding the Citizenship Revocation Process
Between 1977 and 2010 only 63 people had their citizenship revoked. In July, 2011, Jason Kenney, then the Minister of Citizenship and Immigration (“Minister Kenney“), announced that as many as 1,800 Canadians could be stripped of their citizenship because they obtained their citizenship fraudulently. The 1,800 individuals were identified following a three-year investigation by the RCMP, other police forces and Citizenship and Immigration Canada. On September 9, 2012, Minister Kenney announced that the number of people who would likely have their citizenship revoked had risen to 3,100, with an additional 11,000 people under investigation. An Access to Information Act request revealed that most of the Canadian citizens who were the subject of investigations were originally from the following countries. By the end of 2012, the process of revoking these peoples’ citizenship had already begun. Ultimately, after Federal Court litigation and a change in government, citizenship revocations continue at a rate much smaller than it seemed would occur, but more than before. In 2021, 7 people had their citizenship revoked. In 2022, it was 25. Section 10 of the Citizenship Act The authority of the Government of Canada to strip people of their citizenship is legally provided for by s. 10 of the … Read More
Intention to Reside and Provincial Nominees
Sections 87(1) and (2) of the Immigration and Refugee Protection Regulations provide that: 87 (1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada. Member of the class (2) A foreign national is a member of the provincial nominee class if (a) subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and (b) they intend to reside in the province that has nominated them. In Dhaliwal v. Canada (Citizenship and Immigration), 2016 FC 131, Justice Diner wrote: The assessment of intention, since it is a highly subjective notion, may take into account all indicia, including past conduct, present circumstances, and future plans, as best as can be ascertained from the available evidence and context. In this case, the Applicant clearly expressed her intention to permanently reside in Brampton, Ontario, as well as her intention to finish her PhD in Quebec, which required continued temporary residence in Quebec. These intentions are not contradictory; … Read More
Artificial Intelligence and Canadian Immigration
When people submit applications to Immigration, Refugees and Citizenship Canada they typically have spent significant time carefully completing forms and assembling documents. They expect that their applications will be processed by visa officers who carefully review the information before them. However, applicants need to understand that their artificial intelligence is playing an increasing role in visa processing, as is the bulk processing of applications. Why this is a timely matter to discuss IRCC has not been forthcoming with how it uses technology to process applications, however, through a series of Access to Information Act requests as well as Federal Court of Canada litigation the public is beginning to get a sense of measures being implemented. Predicative Learning Automated processing of some categories of applications is not new. Since 2015 most visa-exempt foreign nationals have had to apply for an Electronic Travel Authorization before they could board a plane to travel to Canada. These applications were for the most part automated applications. What is less known is that in 2017 IRCC successfully conducted a pilot in which automated systems based on predicative analytics triaged and automatically approved low-risk online temporary resident visa applications from China. Visa applications were sorted into tiers – … Read More
Caregiver Judicial Reviews
The history of caregiver programming in Canada, aimed at providing pathways to permanent residency for caregivers, dates back decades, with key developments occurring after the introduction of the Immigration and Refugee Protection Act (IRPA). There have been four main caregiver pathways since the 1950s: Live-in Caregiver Program (1992 to 2014): This program was established to bring qualified temporary workers to Canada to provide in-home care for children, the elderly, or the disabled. It allowed caregivers to apply for permanent residency after accumulating sufficient work experience in Canada, defined as at least 24 months or a total of 3,900 hours within a minimum of 22 months. Caring for Children and Caring for People with High Medical Needs pilots (2014 to 2019): These pilot programs were introduced for caregivers with two years of full-time Canadian work experience in eligible occupations, including registered nurses and licensed practical nurses. The pilots required specific language and education qualifications and were closed to new applications in June 2019, with existing applications processed by October 2019. Interim Pathway for Caregivers (March 4 to July 8, 2019): This temporary pathway allowed caregivers who were already in Canada and met specific criteria—including work experience and language proficiency—to apply for … Read More
Borderlines Podcast #56 – Responding to Deportation Letters, with Michael Greene
We discuss issues involving the deportation of long term permanent residents for criminality. Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001. He is representing Jaskirat Singh Sidhu in his immigration and deportation matters. 5:45 – What are the grounds for deporting a permanent resident for criminality? 13:00 – How does the appeal process work? 17:00 – What are the factors in deportation. 19:00 – An overview of the history of the law involving the deportation of permanent residents. 26:00 – What is the probability of success for a permanent resident in avoiding deportation once proceedings start? 36:00 – Stays of removal 41:00 – Strategies and tips for responding to procedural fairness letters involving removal. [UPDATE – DECEMBER 20, 2023] The Federal Court in Sidhu v Canada (Public Safety and Emergency Preparedness), 2023 FC 1681 has upheld a decision of the Canada Border Services Agency to refer Mr. Sidhu to the Immigration and Refugee Board. Citing the Federal Court of Appeal decision in Obazughanmwen v Canada (Public Safety and Emergency Preparedness), 2023 FCA 151, the Court set forth the general principles applicable to … Read More