In a previous Perspectives article I criticized the Liberal Government of Canada’s decision to establish a rigid intake procedure that returned applications in Canada’s family reunification programs for incompleteness. While doing so enabled the government to boast about overall processing times that were technically reduced, for many the consequences were actually lengthier separations and loss of status in Canada.
At the same time, I recognized that it was understandable that the Liberals adopted this strict intake system. I wrote:
Given that processing times are easily measured, it is understandable that the government wants to reduce them. Indeed, it is hard to go a few days without reading a media story about a family upset with how long their immigration application is taking. Perhaps in exchange for immigration stakeholders not complaining to the media every time processing times increase, Canada’s immigration department could stop applying such a strict approach to accepting an application into processing.
It is of course understandable that applicants and their family members who are directly impacted by Canada’s immigration system would emotionally express frustration. It can also be a useful strategy to obtain results, as media pressure can sometimes persuade Canadian immigration officials to take certain actions.
However, the level of condensation often hurled at individual officers, and Canada’s immigration bureaucracy as a whole, is extremely counter productive. It also does not reflect well on those partaking in the condescension. Indeed, one sometimes gets the impression that immigration representatives (as just one example) who typically manage offices of less than ten people think that they could do a better job of managing Canada’s immigration programs than career civil servants.
The Sheer Scale of Canadian Immigration
Let’s start with what should be obvious.Read more ›
Canadian immigration law provides circuses with several ways to access foreign talent.
First, many circus employees will qualify for work permit exemptions under r. 186(g) of the Immigration and Refugee Protection Regulations. As the Immigration, Refugees and Citizenship Canada website states:
Foreign, travelling circus performers should, in most cases, meet the requirements of paragraph R186(g), as they are usually coming for a time-limited engagement and are not in an employment relationship with a Canadian organization.
The IRCC website goes on to state the following for Canadian circuses:
In cases where the employer is Canadian, there is entry into the Canadian labour market, so [a Labour Market Impact Assessment] is usually required.
Some exceptions may apply to Canadian-based circuses, such as Cirque du Soleil, that can demonstrate the significant social, cultural or economic benefit they provide to Canada. In these cases, foreign circus performers, choreographers, artistic directors and others (that is, staff who are essential to the creative and artistic processes) who are working for a Canadian-based circus may be authorized to enter Canada, under the significant benefit exemption.
Circuses wishing to benefit from this exemption should be able to demonstrate that their shows are international in nature (for example, in presentation or because they tour outside Canada) and contribute to the ongoing, positive, international reputation of Canadian circuses. These circuses should also be able to demonstrate that their reputation as a circus depends on their recruitment of foreign circus performers, choreographers artistic directors and others (that is, staff who are essential to the creative and artistic processes) to maintain a high level of artistic and international prestige.
As noted above, the Immigration, Refugees and Citizenship Canada guidelines state that a circus employee qualifies for a C10 work permit if:
- the circus is Canadian-based;
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.
Students from India and China should be aware of the possibility of them participating in the Student Partnership Program. This program allows for expedited applications for students that will be attending a school that is a member of the Association of Canadian Community Colleges.
The following chart obtained through an Access to Information request shows the CIC approval rate for study permit applications based on certain countries of origin from 2009 – 2013.
When to Apply
Most people have to apply for study permits outside of Canada. There are exceptions to this, however, including those who already hold study permits,Read more ›
From 2008 – 2013, Jason Kenney, currently the Leader of Alberta’s United Conservative Party, then a Member of Parliament with the Conservative Party of Canada, served as Canada’s Minister of Citizenship and Immigration. During his time as the head of Canada’s immigration department, Minister Kenney implemented many comprehensive reforms to Canadian immigration law, most of which remain in place today. He also reached out to visible minority communities across Canada, and in an interview with the Globe and Mail noted that immigrants often reflect conservative ideals, stating that “you observe how these new Canadians live their lives. They are the personification of Margaret Thatcher’s aspirational class. They’re all about a massive work ethic.”
Unfortunately, the political parties which bear the conservative banner have either abandoned, or seem close to abandoning, this embrace of immigration. From a political standpoint, it is not difficult to see why this is occurring. At the federal level, supporters of the Conservative Party of Canada appear to have a greater discomfort with visible minorities than supporters of other political parties. According to a 2017 EKOS survey, in response to the question “forgetting about the overall number of immigrants coming to Canada, of those who come would you say there are too few, too many or the right amount of visible minorities,” 64% of Conservative Party of Canada supporters said “too many.” This was more than double the next highest political party whose supporters had the same answer, which was the Greens at 31%.
In many ways, what is transpiring in Canada’s centre-right parties mirrors what is happening to centre-right movements across the Western world, where traditional conservatism is being, or risks being, superceded by ethnic nationalism and populism.
This is depressing.
Canadian immigration legislation and policies reflect conservative values.Read more ›
In addition to the defence of duress, discussed elsewhere on this blog here, the Federal Court of Canada in Canada (Public Safety and Emergency Preparedness) v. Aly has determined that the defence of duress can apply to negate an inadmissibility finding for criminality.
The defence of necessity requires proof that:
- there exists a clear and imminent peril;
- there is no reasonable legal alternative available to disobeying the law; and
- there is proportionality between the harm inflicted and the harm avoided.
As the Supreme Court of Canada noted in R v. Latimer, the requirement for “clear and imminent peril” means that:
[D]isaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. In Perka, Dickson J. expressed the requirement of imminent peril at p. 251: “At a minimum the situation must be so emergent and the peril must be so pressing that normal human instincts cry out for action and make a counsel of patience unreasonable”. The Perka case, at p. 251, also offers the rationale for this requirement of immediate peril: “The requirement . . . tests whether it was indeed unavoidable for the actor to act at all”. Where the situation of peril clearly should have been foreseen and avoided, an accused person cannot reasonably claim any immediate peril.
In short, an individual must believe he faces imminent peril and that he has no legal alternative to his illegal action. Further, his belief must be reasonable given his personal and situational circumstances.
In Aly, for example,Read more ›
The Department of Employment and Social Development Canada (“ESDC”) has very strict procedures for returning incomplete Labour Market Impact Assessment (“LMIA”) applications.
All applications are reviewed for completeness. A “complete” application means that the employer has used the appropriate form and an acceptable version, and:
- filled out all fields in all the necessary forms;
- included all the documents that are requested;
- signed all the forms, where required; and
- provided the payment form for the processing fee (where applicable).
If an application is missing information, an officer will determine if the missing element can be obtained quickly and call the employer to obtain the information. Applications that would have been eligible for priority processing but for the missing information are placed in regular processing, even if the information can be obtained quickly.
If the application is missing information that is not easy to obtain, then the application will be deemed incomplete. Although ESDC officers will typically shred or delete an incomplete LMIA, officers will enter reasons for why the application was incomplete in the employer’s system file notes.
The following information from the ESDC Wiki expands on what is written above.
Read more ›
Both Immigration, Refugees and Citizenship Canada as well as the Canada Border Services Agency (“CBSA“) are responsible for ensuring that Canada’s immigration system maintains the security of Canadian society. One of the ways that both departments do this is by determining that individuals are inadmissible to Canada.
In this post I will review and summarize a CBSA Intelligence Advisory that was obtained through an informal Access to Information Act. The Intelligence Advisory was produced by the CBSA Intelligence Operations and Analysis Division in September 2016. It expired in January 2017. The Intelligence Advisory identified certain countries that at the time posed unique issues for CBSA’s mandate of protecting Canadians. In reproducing the information below my goal is not to stigmatize members of these communities nor to imply that their citizens are a threat. Rather, it is to present information as produced by the CBSA for informational purposes only. Every person deserves to be treated as an individual. However, it is contrary to common sense to suggest that certain communities don’t have unique circumstances.
Statistics on Inadmissibility
From 2007 to 2016, the Canada Border Services Agency wrote reports for the following inadmissibilities:
Read more ›
As previously noted on this blog, Bill C-46 will when it takes effect make many offences that currently render someone inadmissible for criminality inadmissible for serious criminality.
The Minister of Immigration, Refugees and Citizenship Canada has now affirmed that these changes will not apply retrospectively.
As such, people who were previously deemed rehabilitated will continue to be so. As well, people who committed an offence prior to December 18, 2018 will benefit from the previous sentencing provisions in the Criminal Code.
Read more ›
People who graduate from designated learning institutions are often eligible to apply for post-graduation work permits (“PGWP“). However, not all schools are eligible.
In addition to other requirements, to be eligible, a student must have graduated from a:
- public post-secondary school, such as a college, trade/technical school or university, or CEGEP in Quebec; or
- private post-secondary school that operates under the same rules as public schools (currently applies only to certain private post-secondary institutions in Quebec); or
- private secondary or post-secondary school (in Quebec) that offers qualifying programs of 900 hours or longer, leading to a diplôme d’études professionnelles (DEP) or an attestation de spécialisation professionnelle (ASP); or
- Canadian private school that can legally award degrees under provincial law (for example, Bachelors, Masters or Doctorate degree) but only if the student was enrolled in a study programs leading to a degree as authorized by the province.
There have been recent media stories about international graduates suing designated learning institutions for misleading them into thinking that they would have been eligible for post-graduate work permits once they graduated.
The requirements to establish a claim in negligent misrepresentation are:
- There must be a duty of care based on a “special relationship” between the representor and the representee;
- The representation in question must be untrue, inaccurate, or misleading;
- The representor must have acted negligently in making said misrepresentation;
- The representee must have relied in a reasonable manner, on said negligent misrepresentation; and
- The reliance must have been detrimental to the representee in that damages resulted.
The Nova Scotia case of Clarke v. Nova Scotia College of Early Childhood Education is an example of what the results of negligent misrepresentation claims involving PGWPs may be,Read more ›
I have previously written in this blog about how Immigration, Refugees and Citizenship Canada (“IRCC’) has adapted an exceptionally strict approach to returning applications for incompleteness. I have also written in Policy Options about how frustrating this approach can be, because one of its main purposes appears to be to allow politicians to boast about reduced processing times, while ignoring the fact that the experience of individuals who are actually applying is actually often longer than previously. I wrote:
The current rigid triage system distorts a fair comparison of processing times. Suppose an individual applies to sponsor a spouse to immigrate to Canada and forgets to include in one of the forms the city where a non-accompanying brother was born. Previously, processing might have been delayed by two to three months while IRCC contacted the family, informed them of the mistake and requested they provide the information. Now, IRCC would instead return the application one to two months after it is submitted, and the family would have to resubmit. If some supporting documents have expired, they may have to reobtain them, and the process can easily take several months. Under the previous system, this delay would have added two to three months to the processing time. Under the Liberals’ triage system, technically there is no delay because processing doesn’t start until the application is resubmitted. So while the government can boast of reduced processing times, applicants are frequently worse off, and the time that it takes IRCC to approve their immigration applications is lengthened.
I should note that while the above paragraph criticizes the Liberal Government of Canada approach to returning incomplete applications, the previous Conservative Government of Canada essentially adopted (and indeed created) the same approach.
Two recent Federal Court decisions show just how strict IRCC is currently being.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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