With four months remaining in the year, both British Columbia’s and Alberta’s provincial nomination programs have announced that they are full. The ability of both provinces to meet the demands of their employers to retain foreign national employees on a permanent basis is clearly being cut off at the knees by federal quotas that appear to bare no resemblance to what is needed.
Medical Examinations for Live-in Caregivers vs. Applicants in the Caring for Children and Caring for People with High Medical Needs Classes
On August 20th, Citizenship and Immigration Canada released Operational Bulletin 232 – Live-in Caregiver Program: Revised in Canada Medical Examination Procedures.
The revised instructions apply only to the live-in caregiver. Medical examinations for family members remain unchanged. It also does not affect the initial overseas examination to qualify for a work permit as a live-in caregiver.
The Right of Permanent Resident Visa Holders to Appeal to the IAD
On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). This is unfortunate because the question that Justice de Montigny certified needs to be answered. That question was: For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made? The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa. CBSA can then deny entry to Canada on the basis that the person does not have a valid … Read More
Same-sex sponsorship: apply as a spouse, common-law or conjugal partner
The following article appeared in the August edition of The Canadian Immigrant. In June 2015, the United States Supreme Court in Obergefell v. Hodges required that all U.S. states license marriages between two people of the same sex, essentially legalizing same-sex marriage in America. Two years before, the United States Supreme Court in United States v. Windsor ended the disparate treatment of same-sex and opposite-sex couples in matters of immigration. The two United States Supreme Court decisions will likely result in American immigration policy more closely resembling that in Canada, where same-sex marriage has been legal since July 20, 2005. In Canada, people in same-sex and opposite-sex relationships have three options to sponsor their partner from abroad; they can either apply as spouses, common-law partners or conjugal partners. Three partnership options The spouse category is straightforward, and applies to anyone who was legally married, provided that both parties to the marriage are over the age of 16, and that both parties voluntarily entered the marriage and had the capacity to do so. There are specific exceptions to this, including marriages conducted through proxy, telephone, internet and fax, as well as polygamous and bigamous marriages. The common-law partner category requires people in … Read More
Joseph v. Canada and the Difficulty of H&C Assessments
I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question: What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected? The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary. Joseph v. Canada In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions: 1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act? 2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on … Read More
Awaiting Kanthasamy – And the Possible ReWriting of H&C Considerations
On April 16, 2015, the Supreme Court of Canada announced that it was reserving its decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration (“Kanthasamy”). When it is released, Kanthasamy may be the most significant immigration decision since Baker v. Canada (Minister of Citizenship and Immigration). As noted in the Appellant’s factum, the issue that the Supreme Court of Canada will be addressing is: What is the scope of the humanitarian & compassionate discretion in s. 25 of the Immigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected? As any immigration practitioner can confirm, if the Supreme Court of Canada broadens the current restrictive interpretation of humanitarian & compassionate considerations under s. 25 of the Immigration and Refugee Protection Act (“IRPA“) it would cause a monumental shift in the processing of immigration applications. The Federal Court of Appeal Decision In Kanthasamy v. Canada (Citizenship and Immigration), 2013 FC 802, the Federal Court certified the following question of general importance. What is the nature of the risk, if any, to be assessed with respect to humanitarian … Read More
DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]
The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions: Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter? If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter? The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).
Business Expertise Consultants and Fettering Discretion
In the increasingly growing area of Labour Market Impact Assessment judicial review the question of whether officers are fettering their discretion by overly relying on operational guidelines is arising. To me a more interesting question is whether officers being told that they cannot make decisions without first consulting Business Expertise Consultants is more interesting. Consider the situation below, as obtained through an Access to Information Act request. It is clear that in this case the officer wanted to approve the Transition Plan exemption request. However, the Business Expertise Consultant recommended that the officer refrain from doing so. In the fettering of discretion scenario, the following questions need to be asked: If a program officer went against the recommendation of a Team Leader and a Business Expertise Consultant, what would be the consequences? If program officers are administrative tribunals who are purportedly experts in the administration of their home statute, then why do they need to defer to Business Expertise Consultants and Team Leaders? How often do program officers ignore the recommendations of Team Leaders and Business Expertise Consultants? What other areas in an LMIA application do program officers have to rely on Team Leaders and Business Expertise Consultants for?
Administrative Monetary Penalty Regime Coming to Foreign Worker Program
On July 1, 2015, the Government of Canada published regulations in the Canada Gazette that introduce an Administrative Monetary Penalty (“AMP“) regime into the Temporary Foreign Worker Program (“TFWP“) and the International Mobility Program (“IMP“). Both Citizenship and Immigration Canada (“CIC“) and the Ministry of Employment and Social Development (“ESDC“) will administer the AMP. In addition, the regulations will replace the exiting two-year ban period for employer non-compliance with 1, 2, 5, 10 year, and permanent bans. The amendments will take effect on December 1, 2015. The Administrative Monetary Penalty Regime Under the new AMP regime, employer non-compliance will be divided into three types of violations. Type A violations will include where an employer: is unable to demonstrate that any information that it provided in respect of a work permit application was accurate during a period of six years beginning on the first day of the foreign national’s employment; did not retain document(s) that relates to employer compliance with cited conditions during a period of six years, beginning on the first day of the foreign national’s employment did not have sufficient resources to pay a live-in caregiver(s); could not demonstrate that any information that it provided for a Labour Market Impact Assessment (“LMIA“) application was … Read More
Application refused? What CIC states in refusal letters is not the whole story
The following article appeared in the July edition of The Canadian Immigrant.