Regulation 4(1) of the Immigration and Refugee Protection Regulations (“IRPR“) state that: 4. (1) For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act; or (b) is not genuine. The primary purpose test and the genuineness test are determined with respect to different time-frames. As the Federal Court noted in Idrizi v. Canada (Citizenship and Immigration), 2019 FC 1187 The relevant time for the primary purpose test is in the past (i.e. the time of the marriage); the relevant time for the genuineness test is the present (i.e. the time of the decision). Evidence that a marriage is not genuine can support the inference that it was entered into primarily for an immigration purpose. The converse is also true. these determinations can be exceedingly difficult. Officers must “proceed cautiously and carefully, ever aware of the need to facilitate family reunification, while at the same time safeguarding the integrity of the immigration process” (at 1944). There will rarely be direct evidence of an improper purpose. Instead, normally … Read More
Temporary Resident Permits (Pre June 28, 2019)
People who do not meet the requirements of the Immigration and Refugee Protection Act (the “IRPA“), and most commonly people who are criminally inadmissible to Canada and who are not eligible to apply for rehabilitation, require Temporary Resident Permits (“TRPs“) in order to enter or remain in Canada.
When an Administrative Delay is an Abuse of Process
The subject unreasonable delays often arise in the immigration context. In one case that I was previously involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that he might be inadmissible to Canada for previous involvement in a group accused of terrorism. In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago. In both cases, the client asked whether the delay amounted to an abuse of process, and if so, what the remedy was. As the Federal Court of Appeal noted in Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, the Federal Court of Canada has the jurisdiction to issue a permanent stay of proceedings, and less drastic measures, as a result of an abuse of process. It is less clear whether the Immigration and Refugee Board can issue stays of proceeding for delays. In Canada (Public Safety and Emergency Preparedness) v. Najafi, 2019 FC 594, Associate Chief Justice Gagné held that it does, but certified the following question: Do the Immigration Division and the Immigration Appeal Division of the Immigration and Refugee … Read More
Suspending Citizenship Applications Due to Cessation Hearings
Until recently, the Government of Canada adopted a very aggressive approach regarding the initiation of cessation applications against permanent residents who are protected persons. The reason is because since 2012 people who lose their protected person status for any of the following reasons also lose their permanent resident status: the person has voluntarily re-availed himself or herself of the protection of their country of nationality; the person has voluntarily reacquired their nationality; the person has acquired a new nationality and enjoys the protection of that new nationality; and the person has voluntarily become re-established in the country that the person left before claiming refugee status in Canada. Several permanent residents with citizenship applications in processing have been affected by cessation applications. In Godinez Ovalle v. Canada (Citizenship and Immigration), the Federal Court rather bluntly told both Immigration, Refugees and Citizenship Canada (“IRCC“) and the Canada Border Services Agency (“CBSA“) that they were out of line, and even called their approach “inhumane.” Ultimately, however, the Federal Court of Appeal in 2017 determined that IRCC can indeed suspend the processing of citizenship applications while cessation proceedings are underway.
Borderlines Podcast #29 – Immigration Detention and Habeas Corpus, with Molly Joeck and Erica Olmstead
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 … Read More
Federal Court Rules on Galloway Inadmissibility
The Federal Court has released its decision on the legality of the “decision” to prohibit former British MP George Galloway from entering Canada for having committed terrorism or been a member of a terrorist organization.
Designated Countries of Origin
From 2011 – 2019 Canada’s refugee system contained a list of Designated Countries of Origin (“DCO“). History Bill C-11, the Balanced Refugee Reform Act, received Royal Assent on June 29, 2010. It introduced sweeping changes to Canadian refugee law, including establishing the DCO regime. The government estimated that approximately 10% of all asylum claimants in Canada could be subject to expedited processing under the DCO policy. The government has estimated that designations would result in a 57% decline in the number of claims received from such countries over the 12 months following a designation. The DCO List The initial list of DCOs covers 27 countries, 25 of which are in the European Union (edit: see below for a list of additional countries that have been added): Austria Belgium Croatia Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland Italy Latvia Lithuania Luxembourg Malta Netherlands Poland Portugal Slovak Republic Slovenia Spain Sweden United Kingdom United States of America
Borderlines Podcast #28 – Canada’s Caregiver Programs
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?
Sponsoring Someone Who is Out of Status in Canada
It is generally well known that Canadian citizens or permanent residents wishing to sponsor their spouses or common-law partners from abroad can typically do so. As well, most people know that Canadians who live with their spouses or common-law partners who are inside Canada as legal visitors, workers or students can sponsor them as well. What is less known is that they can also sponsor those who are in Canada without status. Requirements Canada since 2005 has had a public policy in which Immigration, Refugees and Citizenship Canada will process permanent residence applications from the spouses and common-law partners of Canadian citizens and permanent residents in Canada who do not have legal immigration status. The objective of the policy is to facilitate family reunification and facilitate processing in cases where families are already residing together in Canada. It is to prevent the hardship caused by family separation. Lack of legal immigration status includes people who overstayed visas or permits, people who worked or studied without authorization from the government to do so, people who entered in Canada without required visas and people who entered Canada without valid passports. The most typical situation involves people who travelled to Canada, became romantically … Read More
Psychological Reports
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 … Read More