Many lawyers when they meet with clients often review rejected applications and/or appeals where it is obvious that the individual’s previous representative was incompetent. The examples of incompetence range from missed deadlines to ignorance of the law. Some specific examples include: former counsel being told by an Immigration Appeal Division member to “sit down” because they were incompetent; an immigration consultant not knowing the difference between a “conviction” and a “dismissal”; an immigration consultant stating that the “prevailing wage = the wage paid to Canadians at the employer’s company”; and a lawyer filing late because “deadlines are policy, not statute.” While the previous representative’s incompetence may serve as a ground for relief in a judicial review, cases based on incompetence and/or negligence of previous counsel are exceptionally difficult. The Federal Court’s March 7, 2014, Procedural Protocol on arguing incompetence of counsel only make these cases more challenging. The Law on Incompetence of Counsel As the Supreme Court of Canada stated in R v. GDB for incompetence/negligence of previous counsel/representative to count as a ground for judicial review, it must be established that (1) previous counsel’s acts or omissions constituted incompetence and (2) that a miscarriage of justice resulted from the incompetence. The Federal … Read More
Citizenship Applications – Residency
Canadian citizenship carries significant rights and responsibilities, and as a result it is not granted lightly. Individuals seeking to become Canadian citizens must demonstrate that they meet several eligibility requirements set out in the Citizenship Act. These requirements are designed to ensure that applicants have established a meaningful connection to Canada before being granted citizenship. One of the most important requirements applies to adult permanent residents who apply for citizenship. To be eligible, applicants must show that they satisfy all of the criteria in subsection 5(1) of the Citizenship Act. These criteria include factors such as holding permanent resident status, meeting language requirements where applicable, filing taxes when required, and passing a citizenship knowledge test. A key component of eligibility is the residency requirement. Under the Citizenship Act, an applicant must demonstrate that they were physically present in Canada for at least 1,095 days during the five-year period immediately before the date of their citizenship application. In other words, an applicant must have spent at least three years in Canada within the relevant five-year window. This physical presence requirement is assessed based on the actual number of days that the applicant was in Canada. Applicants are therefore required to carefully … Read More
Introducing Express Entry
On January 1 2015, Citizenship and Immigration Canada (“CIC“) is expected to overhaul its economic immigration programs with the launch of Express Entry. On December 1, 2014, the Government of Canada released detailed Ministerial Instructions regarding Express Entry. In this post I hope to provide an easy to read overview of the new program. Express Entry will significantly alter every economic immigration program, including the Federal Skilled Worker Program (“FSWP“), the Canadian Experience Class (“CEC“), the Federal Skilled Trades Program (“FSTP“), and the Provincial Nominee Program (“PNP“). Rather than first in, first processed for permanent residence applications Express Entry will feature a “selection” of candidates who the Government of Canada believes is most likely to succeed in Canada. Express Entry will consist of two steps for potential applicants: Completing an Online Express Entry Profile Receiving a Letter of Invitation CIC is touting that Express Entry is not a new immigration per se, but rather a way for CIC to manage economic immigration applications online. However, a quick review of Express Entry suggests that who will be eligible to immigrate to Canada under Express Entry will fundamentally change.
The Return of Incomplete Applications
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 … Read More
Understanding the Citizenship Revocation Process
Between 1977 and 2010 only 63 people had their citizenship revoked. In July, 2011, Jason Kenney, then the Minister of Citizenship and Immigration (“Minister Kenney“), announced that as many as 1,800 Canadians could be stripped of their citizenship because they obtained their citizenship fraudulently. The 1,800 individuals were identified following a three-year investigation by the RCMP, other police forces and Citizenship and Immigration Canada. On September 9, 2012, Minister Kenney announced that the number of people who would likely have their citizenship revoked had risen to 3,100, with an additional 11,000 people under investigation. An Access to Information Act request revealed that most of the Canadian citizens who were the subject of investigations were originally from the following countries. By the end of 2012, the process of revoking these peoples’ citizenship had already begun. Ultimately, after Federal Court litigation and a change in government, citizenship revocations continue at a rate much smaller than it seemed would occur, but more than before. In 2021, 7 people had their citizenship revoked. In 2022, it was 25. Section 10 of the Citizenship Act The authority of the Government of Canada to strip people of their citizenship is legally provided for by s. 10 of the … Read More
Labour Market Impact Assessments- Prevailing Wage
In order to obtain a positive Labour Market Impact Assessments, an employer must commit to paying a prospective foreign worker at least the prevailing wage for an occupation in a geographic area. The prevailing wage is set by Employment and Skills Development Canada (“ESDC“)/Service Canada. It is a very strict requirement, and Service Canada officers currently have no discretion to vary it.
Misrepresentation
Section 40 of the Immigration and Refugee Protection Act provides that a permanent resident or foreign national is inadmissible to Canada for directly or indirectly misrepresenting or withholding a material fact relating to a relevant matter that induces or could induce an error in the administration of Canada’s immigration laws. The general consequence of misrepresenting is a five-year ban from entering Canada. Canada is very strict on misrepresentation. In Bundhel v. Canada (Citizenship and Immigration), 2014 FC 1147, for example, Mr. Bundhel had been charged and convicted with an offence, which had been overturned on appeal. Mr. Bundhel would accordingly not have been criminally inadmissible to Canada. Because of this, he put on his immigration forms that he had never been charged or arrested. When it discovered thathehad been previously charged, what is now Immigration, Refugees and Citizenship Canada wrote to him and provided him with an opportunity to explain why he misrepresented. After the immigration officer reviewed Mr. Bundhel’s explanation that it was an innocent mistake, the officer refused the application, and declared the person inadmissible to Canada for misrepresentation. The Court wrote (citations removed): Mr. Bundhel’s complaint that the Officer should have considered the fact that he owned-up to the … Read More
H&C Applications
The following is the IRCC Manual on H&C applications.
Study Permit Compliance
In 2020, over 400,000 international students at the post-secondary level in Canada will return to school. Many will want to stay and work in Canada after graduating. All will be subject to mandatory conditions of their stay as a student in Canada. It is important for all international students, and especially those who wish to one day work in or immigrate to Canada, to understand these conditions, as the consequence of failing to comply with one of the them is removal from Canada and a one year bar from returning. The Law on Study Permit Compliance Regulation 220.1(1) of Canada’s Immigration and Refugee Protection Regulations provides that the holder of a study permit in Canada must enroll at a post-secondary institution that accepts international students, also known as a designated learning institution, and remain enrolled at the designated learning institution until they complete their studies. As well, students must actively pursue their course or program of study. Canadian immigration authorities typically interpret this legislative requirement as being that students must be enrolled full-time or part-time during each academic semester (excluding regularly scheduled breaks), that they must make progress towards completing their program’s courses and that they cannot take authorized leaves … Read More