Category: Uncategorized

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 about: Digital Nomads and Immigration  »

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.

H&C Applications

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 about: Administrative Deferrals of Removal  »

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 about: Borderlines Podcast #29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead  »

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 about: Borderlines Podcast #28 – Canada’s Caregiver Programs  »

(the following is largely paraphrased from the IRCC website)

The North American Free Trade Agreement (“NAFTA“) is a free trade agreement between Canada, the United States and Mexico.  It facilities the temporary entry of individuals, including providing certain Americans and Mexicans with the ability to work in Canada without first requiring Labour Market Impact Assessments (“LMIAs“).

NAFTA does not assist permanent admission, does not apply to permanent residents of the United States and Mexico and does not remove the need for Americans and Mexicans to undergo security screening before entering Canada.

The categories are:

• Business Visitors;
• After – Sales Services;
• Investors;
• Intra-Corporate Transferees; and
• Professionals.

Business Visitors

To qualify as a business visitor, an American or Mexican citizen must be entering Canada to conduct activities that are international in scope, have no intention to enter the Canadian labour market, have their primary source of remuneration be outside of Canada and their principal place of business remain outside of Canada.

For example, business visitors engage in international business activities related to research and design; growth, manufacture and production; marketing; sales; distribution; after-sales service; and general service.  Typical examples of business activities include, but are not limited to, consultation, negotiation, discussion, research, participation in educational, professional or business conventions or meetings and soliciting business.

Marketing includes trade fair and promotional personnel attending a trade convention.

Sales representatives and agents taking orders or negotiating contracts for goods or services for an enterprise located in the U.S. or Mexico qualify for entry as Business Visitors, however, they cannot deliver goods or providing services.  The seller may only take orders for the goods or enter into contracts for the services. 

 » Read more about: Work Permits Under The North American Free Trade Agreement  »

On May 2, 2019 Immigration, Refugees and Citizenship Canada unveiled the Student Direct Stream (the “SDS”), an expedited study permit processing program available to legal residents of India, China, Philippines and Vietnam.

Eligibility 

To be eligible for the SDS, an applicant must:

• be a legal resident of India, China, Philippines and Vietnam;
• provide proof of a valid language test result, completed within 2 years of the date of the SDS application, showing an IELTS score of 6.0 or higher in each language skill, or a TEF score that is equivalent to Canadian Language Benchmark 7;
• provide proof of a Guaranteed Investment Certificate “GIC” of CAN $10,000.00 or more issued from any bank that is insured by the Canadian Deposit Insurance Corporation (“CDIC”) or any bank listed on the IRCC SDS webpage;
• provide proof of full payment of tuition for their first year of study;
• provide a letter of acceptance to a Designated Learning Institute (a “DLI”);
• complete an upfront medical exam.

The GIC must meet the following criteria:

• when the GIC has been purchased, the bank provides a letter of attestation, the GIC certificate, the Investment Directions Confirmation or the Investment Balance Confirmation to the applicant;
• the bank holds the funds in an investment account or a student account that is inaccessible for release to the applicant until the applicant’s arrival in Canada;
• upon entry to Canada, the bank must validate the client’s identity before releasing funds to the study permit holder; and
• the applicant receives an initial disbursement upon identifying themselves, and the remaining funds are disbursed in monthly or bi-monthly installments over a period of 10 to 12 months.

 » Read more about: The Student Direct Stream (SDS)  »

As per the Federal Court of Canada decision in Haile v. Canada (Citizenship and Immigration), 2019 FC 538, it is a breach of procedural fairness to set aside the principle of audi alteram partem on the basis of a short delay in the delivery of the written submissions.

 » Read more about: Missing Deadlines  »

 » Read more about: Functus Officio  »

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 IRCC report titled 2016 Annual Refugee Claim Trend Analysis Summary report below.

A201769568_2019-01-11_15-48-15

 » Read more about: Refugee Claimants from China  »

The Supreme Court of Canada in 2019 clarified the law regarding the requirements to convict someone for child luring under the Criminal Code.  The decision, R v. Morrison, has implications for people who may be inadmissible to Canada for serious criminality.  

Section 172.1(1) of the Criminal Code prohibits communicating, by means of telecommunication, with a person who is, or who the accused believes is, under the age of 18, 16 or 14 (depending on the circumstances) for the purposes of facilitating the commission of certain designated offences against that person, such as sexual offences.

Prior to R v. Morrison, the law was that if someone told someone else they were underage, the law presumed the person believed it. The only exception was if there was evidence that the person didn’t believe it. All the judges at the Supreme Court agreed that this violated the right to be presumed innocent.

As a result, in the context of a police sting where there is no underage person, the offence of child luring has three essential elements: (1) an intentional communication by means of telecommunication; (2) with a person who the accused believes is under the requisite age; (3) for the purpose of facilitating the commission of a designated offence with respect to that person.

The Crown cannot secure a conviction by proving that the accused failed to take reasonable steps to ascertain the other person’s age once a representation as to age was made. Instead, the Crown must prove beyond a reasonable doubt that the accused believed the other person was underage.

To meet this burden, the Crown must show that the accused either (1) believed the other person was underage or (2) was wilfully blind as to whether the other person was underage.

 » Read more about: Supreme Court Clarifies Child Luring Laws  »