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.Read more ›
Over the course of the past several years I have noticed a steady increase in the number of what I call digital nomads seeking to immigrate to Canada. These individuals, often avid readers of Tim Ferris’s The Four Hour Work Week, typically work from home. They are hyper efficient, and through delegation and automation can accomplish in twenty hours what most people take forty hours to do. They work on contract, often with multiple employers, or are self-employed. While they have skills that would make them very marketable in the Canadian labour force, most do not want to give up the freedom that they have built just to obtain permanent residency.
The question that they all have is simple. Can they immigrate to Canada without having to become an employee?
Economic Immigration Programs Specifically for Entrepreneurs
Most Canadian economic immigration programs discourage self-employment. For example, in the Canadian Experience Class, self-employment in Canada does not count towards the one-year work experience requirement. In Express Entry, meanwhile, self-employment does not earn any points for Canadian work experience. Most skills-based provincial nomination programs also prohibit independent contractor work, and even set caps on what percentage of a Canadian business a prospective immigrant can own in order to qualify as a skilled immigrant.
There are, however, a few exceptions to this. The Self-Employed Class, for example, allows individuals who in the past five years have two one-year periods of self-employment in cultural or athletic activities to apply for permanent residence in Canada if they intend to be self-employed in Canada. Examples of cultural and athletics include music teachers, actors, athletes, painters, film makers, freelance journalists, choreographers, coaches and trainers. In recent years YouTube celebrities have started applying under the program, and absent changes in the future it is likely the Self-Employed Class will expand to include professional Instagrammers,Read more ›
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 risk of migrant workers in Canada who are leaving their job and working irregularly (that is, without authorization) as a result of abusive situations
- facilitate the participation of migrant workers who are experiencing abuse, or who are at risk of abuse, in any relevant inspection of their former employer, recruiter or both; and
- help migrant workers in assisting authorities, if required (noting that this is not required for the issuance of the open work permit),
To be a member in the Self-Employed Class, an applicant must have a minimum of two years of experience in cultural activities, athletics, or the purchase and management of a farm (for applications received before March 10, 2018), during the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application.
The experience can consist of either two one-year periods of experience in self-employment in cultural activities, two one-year periods of experience in participation at a world class level in cultural activities, or a combination of one-year periods in the two.
The experience can also consist of either two one-year periods of experience in self-employment in athletics, two one-year periods of experience in participation at a world class level in athletics, or a combination of one-year periods in the two.
What is Self-Employment?
The Self-Employed Class section of the Immigration, Refugees and Citizenship Canada website does not describe what self-employment is.
However, the Canadian Experience Class section of the website provides the following:
Determining an applicant’s employment status
Applicants under the CEC must satisfy a CIC officer that they meet all program requirements [R87.1]. Any period of self-employment shall not be included in calculating the period of qualifying work experience under the CEC [R87.1(3)(b)]. As such, the CEC requires that applicants demonstrate they acquired skilled work experience in Canada through authorized employment by a third party.
As provided for in the CEC Document Checklist, principal applicants are requested to provide documentary evidence of their work experience in Canada through a combination of: a copy of their most recent work permit (unless they are work-permit exempt), copies of their most recent T4 tax information slips and Notice of Assessment (NOA) issued by the Canada Revenue Agency (CRA) or a sufficient combination of other supporting documentation,Read more ›
Administrative deferrals of removal (“ADR“) are temporary measures when the Government of Canada determines that immediate action is needed to temporarily defer removals of foreign nationals to countries experiencing humanitarian crisis. Once the situation in a country stabilizes the ADR is lifted and removals resume.
Those who are inadmissible to Canada on grounds of criminality, international or human rights violations, organized crime, or security can still be removed despite the ADR.
An ADR is currently in place for certain regions in Somalia (Middle Shabelle, Afgoye, and Mogadishu), the Gaza Strip, Syria, Mali, the Central African Republic, South Sudan, Libya, Yemen, Burundi, Venezuela and Haiti.
Pursuant to the Federal Court of Canada decision in Bawazir v. Canada (Citizenship and Immigration), 2019 FC 623, the existence of an ADR should not negate the hardship analysis that officers conduct in humanitarian & compassionate applications. As Justice Norris noted:
One can certainly understand why Mr. Bawazir would like to secure his status in Canada by obtaining permanent residence here. In my view, a reasonable and fair-minded person would judge the requirement that he leave Canada and go to a war zone where a dire humanitarian crisis prevails so that he could apply for permanent residence as a misfortune potentially deserving of amelioration. The existence of the ADR demonstrates that Canada views the conditions in Yemen as a result of the civil war to “pose a generalized risk to the entire civilian population.” The conditions are so dire there that, with a few exceptions, Canada will not remove nationals to that country. Applying the usual requirements of the law in such circumstances clearly engages the equitable underlying purpose of section 25(1) of the IRPA (cf. Lauture v Canada (Citizenship and Immigration),Read more ›
Molly Joeck and Erica Olmstead are lawyers with Edelmann & Co. They, along with Peter Edelmann, acted for the Canadian Council for Refugees as interveners before the Supreme Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Chhina.
In Chhina the issue before the Supreme Court was whether immigrant detainees have access to habeas corpus. We discuss Chhina, how immigration detention works in Canada, habeas corpus and issues going forward.
2:20 – Why would someone be detained in Canada for immigration reasons?
3:50 – In the federal detention review system who decides if an immigrant should be detained? What is the Immigration Division?
4:30 – How often would an immigrant who is detained have their detention reviewed?
5:30 – What are some issues arising with long term detention?
12:20 – Is there a difference in the issues that arise in long term detention in Ontario as opposed to British Columbia?
18:00 – Is an immigrant refusing to assist with removal by not getting a passport grounds for detention?
24:30 – What is habeas corpus?
27:30 – Why would someone in immigration detention want access to habeas corpus?
30:30 – Why is habeas corpus an alternative to federal court judicial review?
36:00 – The majority in Chhina appears to have commented negatively on certain aspects of the federal detention review process without striking it down. Why did they not just strike it down?
41:00 – How long do habeas corpus applications take?
46:00 – How many times can someone file habeas corpus applications?
51:00 – How has the Immigration Division reacted to the spate of habeas applications?
57:00 – How do detention review cases make it to the Federal Court of Appeal?Read more ›
Natalie Drolet is the Executive Director / Staff Lawyer for the Migrant Workers Centre.
We discuss the history of Canada’s caregiver programs, current issues and what the future looks like.
2:30 – What is a caregiver and how have Canada’s caregiver work permit and immigration programs traditionally worked?
7:00 – What are employer specific work permits? How do these impact caregivers?
14:40 – How do Canadian caregivers find families who are overseas?
16:00 – Why is the caregiver program necessary? Why are Canadians not applying for these positions? What role do wages play?
21:10 – How does the Interim Pathways program work?
29:14 – Could an Expression of Interest Intake model come to the caregiver program?
31:30 – What are employer compliance issues in the caregiver program? What are some of the abuses that occur?
38:00 – Are the problems now similar to problems that the program has traditionally faced?
43:00 – Where do caregivers live out typically stay?
45:00 – What will the program likely look at in the future?
56:00 – Do the caregiver programs allow governments to avoid funding daycare?
57:30 – Where do most caregivers come from?Read more ›
Please note that none of the information on this website should be construed as being legal advice. As well, you should not rely on any of the information contained in this website when determining whether and how to apply to a given program. Canadian immigration law is constantly changing, and the information above may be dated. If you have a question about the contents of this blog, or any question about Canadian immigration law, please contact the Author.
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