A difficult situation that some prospective immigrants who are already inside Canada face is that they have a criminal record that they have not previously disclosed to Canadian immigration officials. What is often especially unfortunate in such situations is that the criminal conviction can be really old, but the instances where someone failed to disclose their conviction to Canadian immigration officials more recent. Having successfully represented several individuals in such situations obtain permanent residency, there are several legal principles that I think anyone in such a situation needs to understand. 1. An individual who has a foreign criminal record can apply to Canadian immigration officials for a determination that they are rehabilitated if it has been more than five years since the sentence was completed. Rehabilitation assessments are forward-looking. The test is whether a person is likely to commit criminal conduct. Officers must consider both positive an neutral factors relevant to the application. 2. An individual not disclosing a criminal record to Canadian immigration authorities can be treated as a negative factor in a rehabilitation assessment. The Federal Court has in several cases (such as Tejada v. Canada) held that an individual’s past dealings with Canadian immigration authorities is a relevant … Read More
Immigration Detainees Granted Access to Habeas Corpus
On October 20, 2015, the Court of Appeal for Ontario (the “ONCA”) released its decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness) (“Chaudhary”). The ONCA has ruled that the immigration detention review system provided for in the Immigration and Refugee Protection Act (“IRPA”) does not provide an effective forum for detainees to challenge their continued detention. Effective immediately, detainees will be able to apply to the Ontario Superior Court of Justice for habeas corpus to challenge their continued detentions. Habeas Corpus Habeas Corpus, latin for “you shall have the body,” is a recourse in law whereby a detained individual can apply to a court for a determination on whether their detention or imprisonment is unlawful. If the court rules that the detaining entity is acting beyond its authority, then it must release the detainee. Habeas Corpus is commonly regarded as a cornerstone of liberty. It is enshrined by s. 10(c) of the Canadian Charter of Rights and freedoms, which provides that “everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. Under what is known as the … Read More
Returning to Canada After Previously Overstaying
It is not uncommon for people who have previously overstayed in Canada to wish to return. Many people worry that it will not be possible to do so. However, regardless of whether one previously overstayed but left Canada before Canadian immigration authorities discovered the overstay, or even if one was ordered to leave Canada, it is certainly possible and common that a Canadian visa office abroad will approve a visa to allow that person to return to Canada, despite the previous non-compliance. The following is a reference letter that an applicant used in the case AlOmari v. Canada (Citizenship and Immigration). It is as a good example of the level of detail that should go into such a letter, and can serve as a useful reference for others. In November 2015, I made the mistake of not renewing my study permit because I was not able to complete my flight training during the unstable weather conditions of the fall and winter seasons. This bad decision and judgment call is what led me to overstaying. I could not leave until July 11, 2016 because I was required to remain with my wife and sisters who were actively studying. As outlined in the … Read More
Personalized vs. Generalized Risk
As the political situations in several Latin American countries worsens, there has been a steady increase in the number of refugee cases being decided on the issue of personalized vs. generalized risk. Section 97(1)(b)(ii) of the Immigration and Refugee Protection Act states that a person in need of protection is a person in Canada whose removal to another country would subject them personally to a risk to their life or to a risk of cruel and unusual treatment or punishment if the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country. The Federal Court has grappled with how to distinguish between personalized and generalized risk. Proophete As noted in Prophète v Canada (Minister of Citizenship and Immigration), 2008 FC 331, the difficulty in analyzing personalized risk in situations of generalized human rights violations, civil war, and failed states lies in determining the dividing line between a risk that is “personalized” and one that is “general”. What, for example, is the risk to an individual who has been targeted in the past and who may be targeted in the future but whose risk situation … Read More
Citizenship Requirements to Change October 11
The Government of Canada today announced that its long awaited changes to Canadian citizenship requirements will take effect on October 11, 2017. Here are some key changes that you should know about. 1. The amount of time that a permanent resident must spend in Canada before being eligible to apply for Canadian citizenship is decreasing. Currently, permanent residents have to have been physically present in Canada for four out of six years before applying for Canadian citizenship. As of October 11, 2017 applicants will instead need to be physically present in Canada for three out of five years before applying for citizenship. As well, permanent residents will no longer be required to be physically present in Canada for 183 days in four out of the six years preceding their application. 2. Physical presence will continue to be the test for meeting the citizenship residency requirement. Prior to 2014, it was possible for permanent residents who were not physically present in Canada but who had substantial ties to Canada to meet the citizenship residency requirement. In 2014, Canada’s citizenship law was changed so that only the days that a permanent resident was physically present in Canada counted towards the residency requirement. … Read More
Borderlines Episode 17 – Issues with PreClearance at Customs Offices, with Michael Greene
The Liberal Government of Canada has introduced legislation that will expand the use of preclearance facilities by United States border officials in Canada, and authorize Canada to set up such facilities in the United States. Michael Greene, Q.C. is an immigration lawyer in Calgary. He served as the National Chair of the Canadian Bar Association’s Citizenship & Immigration Section in 2000-2001. He can be reached at mgreene@sgimm.ca Michael joins to provide an overview of Bill C-23, the Preclearance Act, and resulting issues including the presence of armed US border officials in Canada, detention, the application of the Charter and the potential denial of entry to Canadian permanent residents. The United States currently operates border preclearance facilities at a number of airports and ports in Canada. These are staffed and operated by U.S. Customs and Border Protection officers. Travelers pass through U.S. Immigration and Customs, Public Health, and Agriculture inspections before boarding their aircraft, ship, or train. Bill C-23 will: provide United States preclearance officers with enhanced powers, including the ability to carry firearms; establish that the exercise of any power and performance of any duty or function by a United States preclearance officer is subject to Canadian law, including the Canadian … Read More
The Canada-European Comprehensive Economic and Trade Agreement
On September 21, 2017 the immigration provisions of the Canada-European Comprehensive Economic and Trade Agreement (“CETA”) came into effect. Chapter 10 of CETA facilitates the temporary entry of business persons. The European Union’s commitments are the most ambitious that the European Union has ever negotiated in a free trade agreement. For Canada, CETA’s temporary entry provisions contain similar ideas to those contained in the North American Free Trade Agreement (“NAFTA“), although there are very significant differences. CETA is significant from a Canadian immigration perspective because prospective foreign workers who are eligible for work permits under CETA do not require Labour Market Impact Assessments (“LMIAs“). This means that companies do not have to first test the Canadian labour market before hiring a foreign worker, nor do they have to commit to labour market benefits. Any Canadian businesses seeking to hire United States or Mexican nationals will typically begin by determining whether their prospective employees are eligible for work permits under NAFTA. When CETA takes affect, the same will be true for Canadian employers hiring citizens from the European Union. If you are a Canadian business seeking to employ a European Union national, or you are a European national seeking to work in Canada, the following are things that you … Read More
Upfront Medicals in the Family Class
On September 20, 2017 Immigration, Refugees and Citizenship Canada affirmed that upfront medical examinations are no longer available for Family Class applicants. http://www.cic.gc.ca/english/resources/tools/updates/2017/09110950.asp The inability of Family Class applicants to do upfront medical examinations was one of the changes introduced when the Liberal Government of Canada announced that it had reformed the Family Class application processing system to reduce backlogs. At the time it was unclear why removing the ability of applicants to complete their medical examinations before applying for permanent residence would speed things up, and it is still not clear if (or why) this is the case. It is also problematic for those who want to work in Canada during the processing of their application in certain occupations. The issue involves Inside-Canada Spouse or Common-Law Partner in Canada Class (“SCPCC“) applicants who work in health or education professions and who are eligible for SCPCC work permits. Because of IRCC’s announcement, applicants have had difficulty obtaining work permits that do not have medical restrictions. Indeed, in at least one case a Panel Physician refused to do a medical exam for a nurse who needed the medical restriction on her work permit removed, on the basis of IRCC’s instructions. I … Read More
The Right to be Heard
On May 19, 2017 the Federal Court of Canada issued a scathing criticism of how the Department of Employment and Social Development Canada is breaching procedural fairness in how it bans companies from the Temporary Foreign Worker Program. In Ayr Motors Express Inc. v. Canada (Employment Workforce Development and Labour), Justice Le Blanc noted that the Department had not respected a trucking company’s “basic right to be heard” before it banned them for two years from hiring foreign workers. Citing the Federal Court decision in Tiedeman v Canada (Human Rights Commission), Justice Le Blanc further found that “[t]o solicit the representations of a party and, subsequently, to fail to consider them, renders hollow the hallowed principle of the right to be heard”. The breach of procedural fairness arose during an inspection involving whether Ayr Motors Express Inc. had failed to comply with the Temporary Foreign Worker Program. Canada’s Immigration and Refugee Protection Regulations require that the Minister of Employment, Workforce Development and Labour be the individual who actually bans a company from hiring foreign workers under the Temporary Foreign Worker Program. However, because that individual is as a federal Cabinet Minister understandably very busy, she instead based her decision on a six … Read More
What is the Citizenship of the Children of Diplomats Born in Canada?
Canadian citizenship law provides that a person is generally a Canadian citizen if they are born in Canada. Since 1952, however, there has been an exception to those who are born in Canada if neither of the child’s parents are Canadian citizens or permanent residents and if either parent was, at the time of the child’s birth: a diplomatic or consular officer or other representative or employee in Canada of a foreign government; an employee in the service of one of the people listed above; or an officer or employee of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization who benefits from diplomatic privileges and immunities in Canada. (While the precise wording has changed over time, the above restrictions have remained more or less consistent.) Diplomatic Immunity is Critical In Vavilov v. Canada (Citizenship and Immigration Canada), 2017 FCA 132, the Federal Court of Appeal answered the following certified question: Are the words “other representative or employee of a foreign government in Canada” found in paragraph 3(2)(a) of the Citizenship Act limited to foreign nationals who benefit from diplomatic privileges and immunities? The Federal Court of Appeal answered in the affirmative. In doing so, … Read More