On June 28, 2019 Immigration, Refugees and Citizenship Canada substantially changed the guidance that it provides to officers regarding the issuance of Temporary Resident Permits (“TRPs“). The biggest change was the removal of the statement that TRPs could not be issued for administrative convenience. People who do not meet the requirements of the Immigration and Refugee Protection Act (the “IRPA“), and most commonly people who are criminally inadmissible to Canada and who are not eligible to apply for rehabilitation, require TRPs in order to enter or remain in Canada.
LMIAs – Who is the Employer
There would be perhaps few things as frustrating for the potential employers of foreign workers than to go through the Labour Market Impact Assessment process only to learn that they were not considered to be an employer by the Department of Employment and Social Development Canada. According to the Temporary Foreign Worker Program manual, 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 conditions and remunerates the foreign national. The Manual further states: Entities Considered the Employer of a Foreign National under the TFW Program: Canadian-Based Entity A person, business, corporation or organization based in Canada that makes an offer of employment to one or more foreign nationals. Foreign-Based Entity A person, business, corporation or organization that is not based in Canada that makes an offer of employment to one or more foreign nationals to work in Canada. For identification purposes, it is strongly recommended that the foreign-based employer obtain a Canadian business number to facilitate the TFW Program’s assessment of their genuineness. … Read More
Refugee Claimants from China
China is one of the top source countries for temporary resident visa applications to China. In 2016, the number of people who applied for temporary resident visas was 492,370. Of the people who were granted visas, 822 declared refugee status. The number is unbelievably small, and represents what Immigration, Refugees and Citizenship Canada calls a risk ratio of 0.16%. I have reproduced an internal Immigration, Refugees and Citizenship Canada (“IRCC”) report titled 2016 Annual Refugee Claim Trend Analysis Summary report below. Notwithstanding this, IRCC is extremely diligent in monitoring which Chinese provinces have the highest amount of refugee claimants. This can apparently lead to refusals for borderline cases. Sample Claim Here are sample claims from China. I have posted this so that future claimants understand the different tests that must be met.
Explanation of the H&C Bars
The purpose of this blog post is to provide an overview of the changes to Humanitarian & Compassionate Applications (“H&C“) resulting from the Balanced Refugee Reform Act and the Protecting Canada’s Immigration System Act which are now in effect. In brief, there are now several restrictions on when H&C applications can be made. Permanent Residence Applications Only Perhaps most importantly, section 25 of the Immigration and Refugee Protection Act now states: Subject to subsection (1.2), the Minister must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. [Emphasis Added] As such, officers cannot consider H&C factors in temporary resident applications, including work permits, study permits, and visitor records. One Year Bar (and Five … Read More
Immigration Consequences of the Safe Streets and Communities Act
On December 5, the House of Commons passed Bill C-10, also known as the Safe Streets and Communities Act, or the Omnibus Crime Bill. Bill C-10 introduces numerous changes which will affect Canada’s immigration system: Changes to Sentencing Provisions The following table details changes to sentencing provisions which will impact admissibility to Canada. Crime Sentence Immigration Consequence Sexual Interference (touching an individual who is under the age of 16) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. If Crown proceeds by way of indictment mandatory minimum penalty of 1 year. Conviction results in inadmissibility for serious criminality. Mandatory minimum would result in lack of appeal rights to the IAD Invitation to Sexual Touching (for an individual who is under the age of 16) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 years. If Crown proceeds by way of indictment mandatory minimum penalty of 1 year. Conviction results in inadmissibility for serious criminality. Mandatory minimum would result in lack of appeal rights to the IAD Sexual Exploitation (of a young person) Remains a hybrid offense with a maximum term of imprisonment of not more than 10 … Read More
The Inside Canada vs. Outside Canada Sponsorship Process
One of the quirkier features of Canadian immigration law is the distinction between what is generally referred to as the “Inside-Canada Sponsorship” process and the “Outside-Canada Sponsorship” process. The biggest myth is that if a couple is residing in Canada then they must use the “Inside-Canada Sponsorship” process. This is not true. However, each program contains advantages and disadvantages vis-a-vis the other, and I have provided a list of the key features and requirements of each program below. Inside-Canada Process Outside-Canada Process The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must be in a genuine, conjugal relationship that was not entered into for the primary purpose of acquiring an immigration benefit. The spouse/common-law partner must reside together in Canada. The spouse/common-law partner do not have to reside together in Canada. As well, once a common-law relationship is established, periods of separation will not change their common-law status if there is a short separation that does not sever the common-law partnership. The applicant must live with the spouse/common-law partner inside Canada during the duration of processing. The applicant can live with … Read More
Maintaining Permanent Residency Status While Working Abroad
Examining the “working abroad for a Canadian business” exception to the “two years out of five” rule for maintaining permanent residency status.
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
Humanitarian & Compassionate Applications – The Establishment Factor
Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C“) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities. H&C applications may be based on a number factors, including: establishment in Canada; ties to Canada; the best interests of any children affected by their application; factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not related to a fear of return based on refugee determination factors; health considerations; family violence considerations; consequences of the separation of relatives; inability to leave Canada has led to establishment; and/or any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors. The purpose of this post is to focus on the establishment factor. Establishment in Canada Immigration, Refugees and Citizenship Canada’s Guidelines (the “Guidelines“) provides that the degree of an applicant’s establishment may be assessed by analyzing the following questions: Does the applicant have a history of stable employment? Is there a pattern of sound financial management? … Read More
Applying for a Study Permit
Generally, to be eligible for a study permit, a potential student must: present a letter of acceptance from the educational institution where she intends to study. This school must be a Designated Learning Institution; be able to both pay the tuition fees of the program as well as be able to financially support themselves and any accompanying financial members. Depending on the person’s country of origin, they may be required to take out a GIC with a designated Canadian bank; be able to cover the cost of transportation to and from Canada; pass any medical examinations; possibly show proof of health insurance; demonstrate that they are a bona fide student and that they will leave Canada at the end of the period authorized by their stay. Not every student needs a study permit. Exempt students include: persons seeking to study for a short-term program (unless they wish to work on campus). minor students in Canada. Approval Rate Statistics The following charts were obtained through Access to Information Act requests. Here is the Immigration, Refugees and Citizenship Canada (“IRCC”) approval rate for study permit applications based on certain countries of origin from 2009 – 2013. Here is a breakdown of approvals for India, China, … Read More