Uncategorized – Steven Meurrens

IRCC Questions and Answers

Immigration lawyers and consultants are able to e-mail Immigration, Refugees and Citizenship Canada (“IRCC“) to ask general questions about how programs work. In 2018 we submitted an Access to Information Act request for many of the questions that were submitted in the first half of 2018. I have uploaded the results of our request here. You can see a list of most of the questions that are answered below.

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A Canadian Bachelor degree was obtained in two years as the person has used some credits from a previous bachelor degree obtained in a foreign country. The curriculum grid for this Canadian Bachelor Degree is 11 quarters with a total of 180 credits. This same person has also a 1-year diploma from a private institution in Canada. Under the CRS points for Express Entry, could we consider that this person could claim points for having two or more degrees, diplomas or certificates only considering the Canadian credentials? As there is the information that one of the credentials must be at least 3 years, I was wondering if IRCC would consider the length of study or the length of the program if was not accredited due to credit transferring? What should we inform at the Education field “Complete/full academic years” for the Canadian Bachelor Degree as described above?

My client received the attached WES assessment. Although the actual program he completedw as over one year long, they indicated “completion of college-level certificate (one semester)”. When entering his education information in his express entry profile, should we be selecting that his highest level of education was secondary school or 1 year of post-secondary studies?

In a Family Class application is a record of solemnization or marriage license acceptable instead of a marriage certificate?

The Federal Skilled Worker Program

The Federal Skilled Workers Program (the “FSWP“) has traditionally been one of Canada’s most popular immigration programs. It is currently one of the three programs that is managed through Immigration, Refugees and Citizenship Canada’s (“IRCC“) Express Entry program.

To be eligible for the FSWP, applicants must meet minimum eligibility criteria, and also get a minimum of 67 out of 100 points in a selection grid.

Minimum Eligibility Criteria

The minimum eligibility criteria to the FSWP are that applicants must:

Within the 10 years preceding the date of the application for a permanent resident visa, have at least one year of continuous full-time employment experience or the equivalent in continuous part-time employment in one or more occupations that are listed in National Occupational Classification (“NOC“) 0, A or B;

During that period of employment performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC;

During that period of employment performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties.

have completed a language test from a designated testing agency and obtained a minimum of Canadian Language Benchmark 7 in all abilities;

if they do not have Canadian education credentials, have submitted an “equivalency assessment” relevant to their occupation establishing that they have the equivalent of the minimum education credential required to practice this occupation in Canada.

Definition of “Continuous”

Many people have questions regarding what constitutes “continuous” full-time experience for the purpose of the FSWP. Essentially, the work experience must be:

at least one year (1,560 hours total / 30 hours per week),

Sponsoring a Common-Law Partner

Canadian immigration law allows Canadian citizens and permanent residents to sponsor their common-law partners.

It requires that:

people in relationships who have not married to have cohabited together for at least one year in a conjugal relationship;
that the cohabitation during that year be continuous rather than intermittent cohabitation adding up to one year;
that the relationship be genuine; and
that the relationship not be entered into to acquire an immigration benefit.

While cohabitation means living together continuously, short periods of separation due to work, business travel, family obligations, etc., are permitted.

After the one-year period of cohabitation has been established, the partners may live apart for periods of time without legally breaking the cohabitation, provided that there is evidence that both parties are continuing the relationship. In Chantladze v. Canada (Citizenship and Immigration), 2018 FC 771, Justice Fothergill stated that it was a reviewable error for an officer to consider the reasons why a couple had lived apart after they had previously lived together for one year continuously.

As the Immigration, Refugees and Citizenship Canada guidelines note:

“According to case law, the definition of a common-law partner should be read as “an individual who is (ordinarily) cohabiting.” After the one year period of cohabitation has been established, the partners may live apart for periods of time while still maintaining a common-law relationship. For example, a couple may have been separated due to illness or death of a family member, adverse country conditions (e.g. war, political unrest), or employment or education-related reasons, and therefore are not cohabiting at the time an application is submitted. Despite the break in cohabitation, a common-law relationship exists if the couple has cohabited continuously in a conjugal relationship in the past for at least one year and intend to do so again as soon as possible.

Actively Pursuing Studies

Regulation 220.1(1) of the Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada (a) shall enroll at a designated learning institution and remain enrolled at a designated learning institution until they complete their studies and (b) shall actively pursue their course or program of study.

Non-compliance with this requirement can, subject to certain exceptions that are beyond the scope of this post, result in a person being barred from Canada for one year.

The Immigration, Refugees and Citizenship Canada (“IRCC“) website contains guidelines (the “Guidelines”) on interpreting these requirements.

The guidelines are divided into the following sections:

I have reproduced or paraphrased much of the Guidelines below.

A. Full-time and part-time studies

The Guidelines state that at a minimum, students must have part-time status with their institution to be considered to be actively pursuing their studies.

The definition of full-time or part-time varies depending on the educational institution.

Furthermore, the province of Quebec requires students to maintain full-time status with their institution to be considered to be actively pursuing their studies.

Work Permits Under the CPTPP

On December 30, 2018 the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the “CPTPP“) came into effect. The CPTPP will result in it being easier for citizens of countries that have ratified the CPTPP to work in Canada. As of writing, these countries include Australia, Japan, Mexico, New Zealand, Singapore and Vietnam.

The benefits are not the same, however, for all countries.

The categories are:

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

Business Visitors

The Business Visitors category applies to all countries that have ratified the CPTPP. As well, permanent residents of Australia and permanent residents of New Zealand may also qualify under this category.

Activities that Business Visitors may perform include:

After-Sales Service

The CPTPP’s After-Sales Service provisions apply to citizens of Australia, Mexico and New Zealand.

Personnel who possess specialized knowledge essential to a seller’s or lessor’s contractual obligation (such as installers, repairers and maintenance personnel, and supervisors) may enter Canada for the purpose of performing services and training workers to perform services pursuant to a warranty (during the life of the warranty) or other service contract incidentals (during the life of the service agreement)

These activities come from the sale or lease of commercial or industrial equipment or machinery (including computer software) that has been purchased or leased from an enterprise located in a party other than Canada.

Unclear Forms and Checklists

Given the frequency with which Immigration, Refugees and Citizenship Canada (“IRCC“) updates its checklists, forms and website
it is not surprising that people often find some of IRCC’s content to be
unclear.

The Federal Court of Canada, citing rule of law principles, has stated that where IRCC content is objectively unclear that flexibility is required. In Lim v. Canada (Minister of Citizenship and Immigration), 2005 FC 657, Justice von Finkenstein stated that:

The actions of CIC in this instance lack common sense. As Muldoon J. so aptly put it in Taei v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 293 (dealing with a refugee claim rather than a live-in caregiver) “(t)he rule of law does not require that statutes be read and interpreted in a robotic mindless manner. Common sense has not been abolished either by the Charter or by statute”. It is also useful to recall the admonition of Jerome A.C.J. in Thakorlal Hajariwala v. M.E.I. [1989] 2 F.C. 79 that ” the purpose of the statute [then the Immigration Act which is now the Immigration and Refugee Protection Act] is to permit immigration, not to prevent it.”

In Jalota v. Canada (Citizenship and Immigration), 2013 FC 1176, Justice Phelan criticized IRCC for refusing a restoration of student status application because the applicant did not provide financial documents, even though the checklist did not mention such a requirement. Justice Phelan stated:

The Respondent’s own checklist does not ask for any financial information per se as part of a restoration application, although it is listed as a requirement for study permit applications. For restoration applications,

Seeing the Forest Through the Weeds – Canada’s Immigration System Works

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.

Work Permits for Circus Workers

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.

Artistic Staff

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;

Applying for a Study Permit

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.

Approval Rates

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,

The Conservative Case for Confidence in Canada’s Immigration System

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.

IRCC Questions and Answers

The Federal Skilled Worker Program

Sponsoring a Common-Law Partner

Actively Pursuing Studies

Work Permits Under the CPTPP

Unclear Forms and Checklists

Seeing the Forest Through the Weeds – Canada’s Immigration System Works

Work Permits for Circus Workers

Applying for a Study Permit

The Conservative Case for Confidence in Canada’s Immigration System

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