In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective. This episode can be found here:
A link to this episode’s synopsis can be found here.
The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.
» Read more about: Retrospective Legislation »
Read more ›Parent & Grandparent Sponsorship Program to be a Lottery in 2017
On December 14, 2016 the Government of Canada announced that it would be changing the application process in Immigration, Refugees and Citizenship Canada’s (“IRCC“) Parent & Grandparent Sponsorship Program (the “PGP“).
For the past several years IRCC’s PGP has been capped at between 5,000 and 10,000 applicants. Applications were treated on a first-come, first-served basis. The PGP would typically open in early January, and the cap would be reached in under 48 hours. This caused most applicants to scramble to submit applications early in the new year.
The process in 2017 will more resemble a lottery system.
Between January 3 and February 2, 2017, Canadian citizens and permanent residents who want to apply as sponsors must first complete an online form on the IRCC website indicating their intention to IRCC that they wish to sponsor their parents and/or grandparents for immigration.
The online form will be available for 30 days, from noon Eastern Standard Time (EST) on January 3, 2017, to noon EST on February 2, 2017.
The form will ask basic questions about the sponsor, including biographical and contact information. Once the information is successfully submitted through IRCC’s online form, the individual will get a confirmation number.
At the end of the 30 days, IRCC will randomly choose 10 000 people and ask them to complete full applications to the PGP.
Those who were invited to apply will have 90 days to submit their complete application to IRCC
The 2017 PGWP application kit and guide will be available on IRCC’s website on January 9, 2017.
More information about the Government of Canada’s announcement can be found here.
Please contact us if you have any questions or concerns about these changes.
» Read more about: Parent & Grandparent Sponsorship Program to be a Lottery in 2017 »
Read more ›Canada Lifts Visa Requirement Against Mexico; Bulgaria, Romania, Brazil Soon to Follow
On December 1, 2016, the Government of Canada lifted the requirement that Mexican nationals obtain a temporary resident visa (a “TRV”) prior to travelling to Canada.
As with all TRV exempt travellers, excluding Americans, Mexican nationals are still required to obtain an Electronic Travel Authorisation (an “ETA”) prior to boarding aircraft to travel to Canada.
The Government of Canada has also committed to gradually expanding eTA eligibility in 2017 to citizens of Bulgaria, Romania, and Brazil.
Electronic Travel Authorisation
The eTA is a new electronic document requirement for visa-exempt air travellers to Canada, excluding citizens of the United States. Travellers apply online for an eTA by providing basic biographical, passport and personal information, and includes questions about their health, criminal history, and travel history.
An automated system then compares this information against immigration and enforcement databases to determine if the traveller is admissible to Canada. The vast majority of applications are approved automatically, with a small percentage referred to an officer for review. Typical reasons for a further review include a previous denial of admission to Canada, a criminal record, or a pending permanent residence application.
The cost to apply for an eTA is $7.00. Applicants must have a valid passport, credit card, and e-mail address.
An eTA is only required for travel to Canada by air. It is not required for travel to Canada by land or sea.
Mexican citizens who already have a valid TRV do not need to apply for an eTA while their TRV is valid.
Future Visa Lifting for Brazil, Romania, and Bulgaria
The Government of Canada has also committed to expanding eTA eligibility to travellers from Brazil, Bulgaria and Romania.
Starting on May 1,
Read more ›IRCC Clarifies Non-Compliance in the International Mobility Program
It is imperative that employers hiring foreign workers in the International Mobility Program (“IMP“) understand the consequences of non-compliance. Immigration, Refugees and Citizenship Canada (“IRCC“) has finally published information on its website which summarizes how it will determine when non-compliance has occurred and what the consequences will be.
Since December 1, 2015, IRCC has had the legislative authority to apply administrative tools, including warning letters, administrative monetary penalties (“AMPs“) and bans on employers accessing the IMP to certain employers where an IRCC officer has determined that an employer has breached the terms and conditions of participating in the IMP.
Breaches that Occurred Before December 1, 2015
It is important to note that the AMP and the bans described below only apply to employer breaches that occurred after December 1, 2015. The penalty to an employer for unjustified breaches that occurred prior to December 1, 2015 is a two-year ban on that employer from being able to hire foreign workers under the IMP. However, while the consequences to an employer for being found non-compliant changed on December 1, 2015, the way in which IRCC assesses whether non-compliance has occurred remains substantially the same.
The Administrative Monetary Penalty Regime
Under IRCC’s AMP regime, employer non-compliance is divided into three types of violations.
Type A violations include where an employer:
- is unable to demonstrate that any information that it provided in respect of a foreign national’s 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 during a period of six years, beginning on the first day of the foreign national’s employment
- did not report at any time and place specified by IRCC to answer questions and provide documents during an IRCC inspection of the employer’s compliance with the IMP;
» Read more about: IRCC Clarifies Non-Compliance in the International Mobility Program »
Read more ›The first reported British Columbia Supreme Court decision involving the British Columbia Provincial Nomination Program has gone to the BC PNP.
» Read more about: First Reported BC PNP Decision »
Read more ›Express Entry’s Comprehensive Ranking System to Change on November 19, 2016
On November 10, 2016, the Government of Canada announced that it would be changing how points are calculated in Immigration, Refugees and Citizenship Canada’s (“IRCC“) Express Entry program.
The most significant change is that having a qualifying offer of arranged employment that is supported by a Labour Market Impact Assessment (“LMIA“) will no longer guarantee an Invitation to Apply (an “ITA“) for permanent residency.
However, foreign nationals who completed post-secondary education in Canada, as well as certain closed work permit holders in the International Mobility Program, will benefit.
The changes will take effect on effect on November 19, 2016.
Overview of the Current Comprehensive Ranking system
Under Express Entry, a potential applicant to one of Canada’s three main economic immigration programs must complete an online Express Entry profile where they provide information about their skills, work experience, language ability, education, and other details. That individual is then entered into a pool of Express Entry candidates where they are given a score out of 1200 using a Comprehensive Ranking System (“CRS“) based on the information that they provided when creating their Express Entry profile.
Under IRCC’s current CRS, an individual gets 600 points if they have an offer of full-time employment that is either supported by a provincial nomination certificate or by a LMIA. Since Express Entry was launched in January 2015, anyone who possessed a work permit that was supported by a provincial nomination certificate and/or a LMIA met the minimum points threshold because of these 600 points, and was guaranteed an ITA.
This will no longer be the case.
Provincial Nomination Points as of November 19, 2016
As of November 19, 2016, individuals who are nominated by provincial nomination programs in their respective Express Entry programs will continue to receive 600 points.
» Read more about: Express Entry’s Comprehensive Ranking System to Change on November 19, 2016 »
Read more ›A very helpful case which reminds everyone that “I don’t understand what you are asking” isn’t the same thing as ignoring requests.
http://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/181503/index.do
» Read more about: Helpful Procedural Fairness Case »
Read more ›Government of Canada To Abolish Conditional Permanent Residency in 2017
On October 29, 2016, the Government of Canada announced that it would be abolishing the conditional permanent residency regime currently in place in the Family Class and the Spouse or Common-Law Partner in Canada Class.
Since October, 2012, conditional permanent residency has applied to individuals who are the spouse, common-law, or conjugal partner of their sponsor for two years or less when they submit their sponsorship applications and who do not have children in common with their sponsor when they submit the sponsorship applications. Conditional permanent residents are required to cohabit in a conjugal relationship with their sponsors for a continuous period of two years after the day on which they become permanent residents. If Immigration, Refugees and Citizenship Canada (“IRCC“) determines that conditional permanent residents have breached the condition, then IRCC will declare them inadmissible to Canada, and removal proceedings will be initiated. An exception to this is where there is abuse. Conditional permanent residents are able to appeal such decisions to the Immigration Appeal Division, which can consider humanitarian & compassionate considerations.
From 2013-2015, 58 218 spouses and partners along with their children were admitted to Canada as conditional permanent residents. This represented approximately 42% of admissions of spouses, partners, and their children within Canada’s family reunification programs. During this time, 307 conditional permanent residents requested an exception to the requirement to cohabit with their sponsor due to abuse or neglect. Approximately 80% of these requests were approved.
In my experience, the Canada Border Services Agency was very flexible in its application of the abuse exception, and was very reluctant to dismiss someone’s claim that they had suffered abuse.
In the Gazette, the Government of Canada has now announced that after four years it is unclear whether or not conditional permanent residence has had its intended impact of deterring non-genuine sponsorship applications,
» Read more about: Government of Canada To Abolish Conditional Permanent Residency in 2017 »
Read more ›Last updated on May 12th, 2019
In John v. Canada (Citizenship and Immigration), 2016 FC 915, Justice Brown provided a helpful summary on how psychological reports are to be treated by the Immigration and Refugee Board and visa officers.
He wrote:
Having come to this conclusion, it is not necessary to deal with the other issues re the psychologist’s report and the Gender Guidelines. However, in connection with the psychologist’s report, the RPD appears to have rejected the psychologist’s report on grounds that were directly and recently criticized by the majority of the Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration), 2015 SCC 61 (Kanthasamy). The RPD states at paras 13-14 of the Decision:
[13] The panel, however, does not find [the psychotherapist’s] assessment to be persuasive evidence and determines that [the psychotherapist] is in no position to state categorically that the PC’s mental and emotional state are the result of her alleged problems in Antigua.
[14] (…) The panel finds that, although the PC may be suffering from anxiety and depression, this may or may not be related to the causes described by the PC in her evidence. Accordingly, the panel gives the psychological assessment, no weight.
[emphasis added]
In Kanthasamy at para 49, the Supreme Court rejected this approach to psychological reports:
And while the Officer did not “dispute the psychological report presented”, she found that the medical opinion “rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by the applicant”. This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on “hearsay”.
» Read more about: Psychological Reports »
Read more ›On October 20, 2016, IRCC posted Operational Bulletin 627. It restricts what qualifies for “urgent processing” of PR Cards to:
- travel due to an applicant’s own serious illness or the serious illness or death of a family member; or
- to obtain employment or to travel due to employment requirements or opportunity.
» Read more about: Urgent Processing of PR Cards »
Read more ›DISCLAIMER
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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