On October 19, 2015, Canada will have its 42nd general election. While only Canadian citizens may vote, permanent residents, foreign workers, international students, visitors, and even people outside Canada through the use of social media and volunteering for political campaigns will be able to influence the development of Canadian policy and discourse like never before. As with any election, all of Canada’s political parties will promise the moon, including on immigration and refugee matters. In order to analyze their commitments critically, it is important to understand that those creating immigration programs are constrained by an impossible trinity. Put simply, it is impossible for an immigration program to have all three of the following at the same time: Government control over immigration numbers Fast processing times Guaranteed processing of eligible applications Most sovereign states want control over the number of people that they admit as immigrants each year. In Canada, section 94(2)(b) of theImmigration and Refugee Protection Act codifies this objective by requiring that the Minister of Citizenship and Immigration Canada (“CIC”) report to Canada’s Parliament annually on the number of individuals projected to become permanent residents during the upcoming year. Predictability and certainty in immigration numbers allows the government to … Read More
When the Port of Entry Can Issue Exclusion Orders
Each day thousands of people cross Canadian ports of entry. There, the Canada Border Services Agency (“CBSA“) will interview them to determine if they are admissible to Canada. If CBSA has concerns about whether someone is inadmissible to Canada, or determines that they are in fact inadmissible to Canada, then the CBSA can either further (or pause) the examination and require that the foreign national appear back at the port of entry a later date for the examination to continue, ask the person to voluntarily withdraw their attempt to enter Canada, refer the matter to the Immigration Division, or issue the individual a removal order. Section 228(1) of the Immigration and Refugee Protection Regulations (“IRPR“) stipulates when CBSA can issue the removal order directly instead of referring the matter to the Immigration Division. It states: 228. (1) For the purposes of [determining someone inadmissible to Canada], …, if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be (a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of … Read More
Immigration Policy after the 2015 Election
The following is an article that I wrote for the September 2015 edition of Policy Options. The Conservatives have yet to fully implement many of their reforms… Canada’s immigration system will look very different from the way it looked a decade ago. The 42nd Canadian federal election will likely be a pivotal event for Canadian immigration policy. The Conservative Party of Canada has comprehensively overhauled Canada’s immigration system. The upcoming election will likely determine whether these changes become permanent or are undone or whether immigration policies go in a completely different direction. In order to understand the possible consequences of the upcoming election on immigration policy we have to understand how much things have changed. Indeed, it is not uncommon for immigration practitioners to jokingly refer to the Immigration and Refugee Protection Act as the “Jason Kenney Immigration and Refugee Protection Act.” Arguably the most significant change to the immigration system was its transformation from a system where people were immediately admitted to Canada from overseas as permanent residents into one where prospective immigrants had to “prove” that they could establish themselves in Canada, economically, by initially being temporary foreign workers and then transitioning to permanent residency. While in the … Read More
The Green Party of Canada’s Immigration Platform
The Green Party of Canada (the “Green Party“) is a Canadian federal political party which currently has just one Member of Parliament, Elizabeth May. In the nine federal elections that it has run candidates in it has only once gotten more than 5% of the popular vote. Nonetheless, it is important to pay attention to their Green Party platform for three reasons. First, the Canadian media gives the Green Party, and especially Ms. May, a considerable amount of coverage. Second, much like the New Democratic Party of Canada has done it is foreseeable that the Green Party will also increase in popularity. Third, Ms. May’s suggestion that the Green Party could wield significant influence in a minority Parliament, though not probable, is not impossible. On September 9, 2015, the Green Party released its election platform. As well, the Green Party also has on its website a document titled Vision Green 2015, a document which contains numerous Green Party commitments.
Admitting New Evidence at the Refugee Appeal Division
Section 110(4) of the Immigration and Refugee Protection Act (the “IRPA“) provides that at the Refugee Appeal Division (the “RAD“) a person may only present evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have expected in the circumstances to have presented, at the time of the rejection. Specifically, it states: Evidence that may be presented (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. Hearing (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; … Read More
Western Canada PNP’s Reach Intake Threshold
With four months remaining in the year, both British Columbia’s and Alberta’s provincial nomination programs have announced that they are full. The ability of both provinces to meet the demands of their employers to retain foreign national employees on a permanent basis is clearly being cut off at the knees by federal quotas that appear to bare no resemblance to what is needed.
Medical Examinations for Live-in Caregivers vs. Applicants in the Caring for Children and Caring for People with High Medical Needs Classes
On August 20th, Citizenship and Immigration Canada released Operational Bulletin 232 – Live-in Caregiver Program: Revised in Canada Medical Examination Procedures.
The revised instructions apply only to the live-in caregiver. Medical examinations for family members remain unchanged. It also does not affect the initial overseas examination to qualify for a work permit as a live-in caregiver.
The Right of Permanent Resident Visa Holders to Appeal to the IAD
On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). This is unfortunate because the question that Justice de Montigny certified needs to be answered. That question was: For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made? The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa. CBSA can then deny entry to Canada on the basis that the person does not have a valid … Read More
Same-sex sponsorship: apply as a spouse, common-law or conjugal partner
The following article appeared in the August edition of The Canadian Immigrant. In June 2015, the United States Supreme Court in Obergefell v. Hodges required that all U.S. states license marriages between two people of the same sex, essentially legalizing same-sex marriage in America. Two years before, the United States Supreme Court in United States v. Windsor ended the disparate treatment of same-sex and opposite-sex couples in matters of immigration. The two United States Supreme Court decisions will likely result in American immigration policy more closely resembling that in Canada, where same-sex marriage has been legal since July 20, 2005. In Canada, people in same-sex and opposite-sex relationships have three options to sponsor their partner from abroad; they can either apply as spouses, common-law partners or conjugal partners. Three partnership options The spouse category is straightforward, and applies to anyone who was legally married, provided that both parties to the marriage are over the age of 16, and that both parties voluntarily entered the marriage and had the capacity to do so. There are specific exceptions to this, including marriages conducted through proxy, telephone, internet and fax, as well as polygamous and bigamous marriages. The common-law partner category requires people in … Read More
Joseph v. Canada and the Difficulty of H&C Assessments
I have previously written about the upcoming Supreme Court of Canada decision in Jeyakannan Kanthasamy v. Minister of Citizenship and Immigration in which the Supreme Court will address the following question: What is the scope of the humanitarian & compassionate discretion in s. 25 of theImmigration and Refugee Protection Act: is it limited to cases of “unusual and undeserved, or disproportionate hardship”, reserved for exceptional cases, and restricted by requiring that the hardship be ‘personalized’ or that the person’s establishment be greater than what would ordinarily be expected? The Federal Court recently certified a question of general importance which shows both how restrictive the current principles of humanitarian & compassionate considerations can be, as well as why the Federal Court feels that such an approach is necessary. Joseph v. Canada In Joseph v. Canada (Citizenship and Immigration), 2015 FC 661, the Federal court certified the following three questions: 1) Is evidence of kidnapping and similar violent criminal conduct relevant to a hardship analysis under section 25 of the Immigration and Refugee Protection Act? 2) Is it incorrect or unreasonable to require, as part of an H&C, analysis that an applicant establish that the circumstances of hardship that he or she will face on … Read More