On November 6, 2017 Ralph Goodale, Canada’s Public Safety Minister, issued a Ministerial Direction to the Canada Border Services Agency (“CBSA”) titled Minors in Canada’s Immigration Detention System (the “Ministerial Direction”), as part of its National Immigration Detention Framework (the “NIDF”). The Ministerial Direction notes that:
- Canada’s immigration detention program is based on the principle that detention shall be used only as a last resort, in limited circumstances and only after appropriate alternatives to detention (“ATDs”) are considered and determined to be unsuitable or unavailable;
- The well-being of children, family unity and the use of ATDs shall be core tenets underpinning policy direction, in accordance with the expectations and values of Canadians;
- The best interests of a child shall be a primary consideration to be assessed against other primary and mandatory factors in legislation;
- That Canada has the objective to stop the detention or housing minors and family separation, except in extremely limited circumstances;
- That Canada will ensure that the detention or housing of a minor or the separation of a minor from his/her detained parent(s) or guardian(s) is for the shortest time possible; and
- That Canada will never place minors in segregation or segregate them.
Prior to the NIDF and the Ministerial Direction the number of minors that the CBSA had been holding in detention had been steadily decreasing.
According to internal government statistics, from April 1, 2016 to December 31, 2016 the parents of accompanied minors were detained for the following reasons: 78.95% (90) for unlikely to appear, 10.52% (12) for examination, and 10.52% (12) for identity.
As well, the average length of time that a minor was detained also had fallen dramatically.Read more ›
Several large scale immigration frauds in recent years have resulted in thousands of permanent residents facing removal of Canada for misrepresentation. Many are filing appeals based on humanitarian & compassionate considerations.
In assessing such appeals, both the Canada Border Services Agency, Immigration, Refugees and Citizenship Canada and the Immigration Appeal Division face the task of weighing an individual’s previous misconduct against the compassionate mitigating factors which may exist.
To quote Justice Russel in Yu v. Canada, the decision in Dowers v Canada (Minister of Immigration, Refugees and Citizenship, 2017 FC 593 at paragraphs 2 to 6, stresses the point that concern about the past must be separated from concern about the future:
A situation such as the Applicant’s, where a person comes to Canada and stays without adhering to the immigration laws, but, nevertheless, succeeds to be a positive, productive, and valuable member of society must be given careful attention. Section 25 has no purpose if that person is easily condemned for her or his immigration history. The history must be viewed as a fact which is to be taken into consideration, but within a serious holistic and empathetic exploration of the totality of the evidence, to discover whether good reason exists to be compassionate and humanitarian. The discovery requires full engagement:
Applying compassion requires an empathetic approach. This approach is achieved by a decision-maker stepping into the shoes of an applicant and asking the question: how would I feel if I were her or him? In coming to the answer, the decision-maker’s heart, as well as analytical mind, must be engaged (Tigist Damte v Canada (Citizenship and Immigration), 2011 FC 1212, para. 34).
The Federal Court of Canada has developed several other principles that immigration officials and administrative tribunals must apply when assessing humanitarian &Read more ›
On November 1, 2017 the British Columbia Provincial Nomination Program (the “BC PNP”) clarified and/or modified several aspects of its programs.
The more significant revisions that applicants and practitioners should be aware of are:
- The International Graduates and International Post-Graduate programs have long excluded graduates from distance education programs from being eligible. As well, a person’s education has not been eligible for Skills Immigration Registration System (“SIRS”) ranking points if it was obtained through distance education. The BC PNP has now defined “distance education.” It means “a program of study in which the majority of credits earned by the student toward the completion of a program were earned by completing online courses.
- The BC PNP has removed the requirement that candidates meet the employment requirements for offered positions, as per the National Occupational Classification (“NOC”) website. However, the BC PNP may still refer to the NOC website to determine the minimum qualifications for an occupation.
- Previously, an applicant could not have an ownership/equity take of more than 10% in the B.C. company that is offering employment. The BC PNP has changed this requirement to state that an applicant and his/her pouse cannot have a combined ownership/equity stake of more than 10% in the B.C. company that is offering employment.
- The BC PNP has re-affirmed that it does not consider bonuses, commissions, profit-sharing distributions, tips/gratuities, overtime wages, housing allowances, room and board, or other similar payments to be part of a person’s wage.
- The BC PNP has completely changed the job requirements in the Express Entry International Graduate and International Graduate programs.
The following is an article that I wrote for The Canadian Immigrant.
It is generally understood that small businesses are the bedrock of the Canadian economy. The entrepreneurs who start them are often considered the lifeblood of the Canadian economy. Unfortunately, it can be difficult for foreign worker entrepreneurs in Canada to use their Canadian business experience to qualify for economic immigration programs. Prospective immigrants who are self-employed or run small businesses in Canada, or want to, need to understand the immigration consequences of doing so in order to properly structure and time the establishment of their companies.
Self-employment and immigrating
Many of Canada’s economic immigration programs restrict or penalize Canadian self-employment. For example, one of the basic eligibility requirements of Canada’s largest economic immigration program, the Canadian experience class, is that applicants have at least 12 months of skilled work experience within three years of applying to immigrate. It specifically excludes self-employment from being eligible experience.
In the Express Entry application intake management system, prospective immigrants to Canada are ranked against each other. People can get points for a variety of factors, and points for Canadian work experience can be especially valuable. However, any experience that was gained through self-employment is ineligible for points.
Incorporating isn’t the answer
Many individuals assume that if their business is incorporated then they will not count as being self-employed. However, it is not this simple.
Immigration, Refugees and Citizenship Canada (IRCC) adopts a holistic approach to determining whether someone is self-employed. Relevant factors include: the degree of the worker’s control or autonomy in terms of how and when work is performed; whether the worker owns and provides their own tools, the degree of financial risk assumed by the worker; whether the worker is free to make business decisions that affect his or her ability to realize a profit or incur a loss;Read more ›
In June 2017 I wrote an article for Policy Options about how I believed that while the existence of the immigration consultant profession in Canada promoted access to justice reforms were needed to strengthen the weeding out of some unethical behaviour. One of the things that I recommended was that Immigration, Refugees and Citizenship Canada (“IRCC”) temporarily have the power to refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous, and that IRCC should also be allowed to levy fines against unscrupulous representatives in certain circumstances.
I recently received the results of an Access to Information Act request where the requester asked to see copies of all complaints sent by IRCC to provincial law societies and the Immigration Consultants of Canada Regulatory Council (the “ICCRC”), the body which regulates immigration consulants. The results, which were over 13o pages, were astonishing for several reasons.
First, I have previously suspected despite general perception to the contrary that the number of complaints filed against immigration consultants was probably the same as against lawyers. However, I seem to have been wrong. Based on the Access to Information Act results, it appears that IRCC has never filed a complaint about a lawyer to a provincial law society. While it is possible that complaints against lawyers simply did not make their way into the Access to Information Act results, or that all of the complaints against lawyers were redacted, this seems unlikely, and at a minimum after reviewing the Access to Information Act results it is clear that the number of complaints that IRCC has made to the ICCRC about unscrupulous consultants dwarfs the number of complaints made about lawyers (which again appears to be none).Read more ›
(This post is a follow-up to my previous post on this topic here.)
Employers wishing to apply for Labour Market Impact Assessments are required to first conduct recruitment efforts to hire Canadian citizens and permanent residents.
The Ministry of Economic and Social Development (“ESDC” or “Service Canada“) is very stringent in its recruitment requirements, some of which are not publicly available. I would like to thank Jacobus Kriek, an immigration consultant with Matrixvisa Inc., for providing me copies of the internal Service Canada directives and e-mails that he has obtained.
Please note that what I have reproduced below should not be viewed as legal advice by ESDC or Service Canada. The reproduction of the material below has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada. As well, given the nature of relying on internal documents, some of the information may be out of date.Read more ›
A difficult situation that some prospective immigrants who are already inside Canada face is that they have a criminal record that they have not previously disclosed to Canadian immigration officials.
What is often especially unfortunate in such situations is that the criminal conviction can be really old, but the instances where someone failed to disclose their conviction to Canadian immigration officials more recent.
Having successfully represented several individuals in such situations obtain permanent residency, there are several legal principles that I think anyone in such a situation needs to understand.
1. An individual who has a foreign criminal record can apply to Canadian immigration officials for a determination that they are rehabilitated if it has been more than five years since the sentence was completed.
Rehabilitation assessments are forward-looking. The test is whether a person is likely to commit criminal conduct. Officers must consider both positive an neutral factors relevant to the application.
2. An individual not disclosing a criminal record to Canadian immigration authorities can be treated as a negative factor in a rehabilitation assessment.
The Federal Court has in several cases (such as Tejada v. Canada) held that an individual’s past dealings with Canadian immigration authorities is a relevant factor in determining whether an individual is likely to commit a criminal offence in Canada in the future, with the logic being that a person who is willing to break immigration legislation might also be willing to break criminal laws. In a pair of 2018 decisions that neatly summarize the law, Justice Diner held that misrepresenting one’s criminal history can tip the balance towards recidivism over rehabilitation (Yu v. Canada), but not necessarily in the case of someone fleeing oppressive conditions (Tahhan v.Read more ›
It is not uncommon for people who have previously overstayed in Canada to wish to return. Many people worry that it will not be possible to do so. However, regardless of whether one previously overstayed but left Canada before Canadian immigration authorities discovered the overstay, or even if one was ordered to leave Canada, it is certainly possible and common that a Canadian visa office abroad will approve a visa to allow that person to return to Canada, despite the previous non-compliance.
The following is a reference letter that an applicant used in the case AlOmari v. Canada (Citizenship and Immigration). It is as a good example of the level of detail that should go into such a letter, and can serve as a useful reference for others.
In November 2015, I made the mistake of not renewing my study permit because I was not able to complete my flight training during the unstable weather conditions of the fall and winter seasons. This bad decision and judgment call is what led me to overstaying.
I could not leave until July 11, 2016 because I was required to remain with my wife and sisters who were actively studying. As outlined in the translated Saudi government scholarship rules, female students are required to travel and live with a male relative, such as a father, husband or brother. Leaving my wife and sisters would have led to them losing their scholarships, and ability to study.
I should have sought the assistance of a lawyer to discuss how I could extend my stay in Vancouver, even though I could not complete my flight training during the fall and winter seasons. My current lawyer informed me that I could have extended my stay in Canada as a visitor until I was ready to get back to my studies.Read more ›
The Government of Canada today announced that its long awaited changes to Canadian citizenship requirements will take effect on October 11, 2017.
Here are some key changes that you should know about.
1. The amount of time that a permanent resident must spend in Canada before being eligible to apply for Canadian citizenship is decreasing.
Currently, permanent residents have to have been physically present in Canada for four out of six years before applying for Canadian citizenship. As of October 11, 2017 applicants will instead need to be physically present in Canada for three out of five years before applying for citizenship.
As well, permanent residents will no longer be required to be physically present in Canada for 183 days in four out of the six years preceding their application.
2. Physical presence will continue to be the test for meeting the citizenship residency requirement.
Prior to 2014, it was possible for permanent residents who were not physically present in Canada but who had substantial ties to Canada to meet the citizenship residency requirement.
In 2014, Canada’s citizenship law was changed so that only the days that a permanent resident was physically present in Canada counted towards the residency requirement. This will continue to be the requirement after October 11, 2017.
3. Part of the time that a permanent resident spent in Canada as a visitor, worker or student can now count towards the citizenship residency requirement.
Currently, time spent in Canada prior to becoming a permanent resident does not count towards the physical presence requirement for citizenship.
As of October 17, 2017, applicants may count each day they were physically present in Canada as a temporary resident (such as a worker,Read more ›
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
In this episode we discuss Bill C-23, the Preclearance Act, 2016. This episode was recorded in June 2017.
The United States currently operates border preclearance facilities at a number of airports and ports in Canada. These are staffed and operated by U.S. Customs and Border Protection officers. Travelers pass through U.S. Immigration and Customs, Public Health, and Agriculture inspections before boarding their aircraft, ship, or train.
Bill C-23 will:
- provide United States preclearance officers with enhanced powers, including the ability to carry firearms;
- establish that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the Canadian Human Rights Act;
- authorizes Canadian police officers and the officers of the Canada Border Services Agency to assist United States preclearance officers in the exercise of their powers and performance of their duties and functions;
- allows a traveller bound for the United States to withdraw from the preclearance process, unless the traveller is detained;
- authorize Canada to set up preclearance facilities in the United States;
- specifies how Canadian immigration law will apply to travellers bound for Canada who are in preclearance areas and preclearance perimeters in the United States, and extends the application of other Canadian legislation that relates to the entry of persons and importation of goods into Canada to those preclearance areas and preclearance perimeters; and
- deems an act or omission committed in a preclearance area or preclearance perimeter to be committed in Canada,
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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