I have received several questions about whether Jason Kenney is breaking international law by revoking peoples’ Canadian citizenship. Specifically, many readers want to know whether international legal norms permit a country to render someone stateless. For those who are not familiar with the term “statelessness,” it refers to individuals who are not a citizen of any country. The question arises because presumably some of the people who are the subject of citizenship revocation proceedings are only citizens of Canada, and not of other nations. The 1961 Convention on the Reduction of Statelessness is the treaty that governs statelessness in the case of non-refugees. It articulates international legal principles governing the interaction between states and the conferral and revocation of citizenship to people residing within the state. Canada ratified the treaty on July 17, 1978. Article 8 of the 1961 Convention on the Reduction of Statelessness provides that: Article 8 1. A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless. 2. Notwithstanding the provisions of paragraph 1 of this Article, a personmay be deprived of the nationality of a Contracting State: (a) [where a person resides abroad for a period of seven consecutive years and … Read More
Canada Imposes Visas on Five New Countries
Canada has imposed visa requirements on five new countries. The countries are St. Lucia, St. Vincent, Namibia, Botswana, and Swaziland. In its press release the government stated that the reasons for the imposition of the visa requirement on these countries were to: Reduce the risk that individuals engaged in organized crime or the trafficking of persons could gain entry to Canada, and to address concerns over fraudulent documents. Address the issue of unreliable travel documents from St. Lucia and St. Vincent because criminals from these countries can legally change their names and acquire new passports. In some instances, people who were removed from Canada as security risks later returned using different passports. Refugee Data Of course, the unspoken reason behind any decision to impose a temporary resident visa requirement on the country is that the government is concerned that people will not leave Canada at the end of their authorized stay, and in some cases claim refugee status. Data from the Canadian Council of Refugees confirms that concern over refugee claims was likely a factor in imposing visa requirements on at least two of the above-mentioned countries. In 2011, the Immigration and Refugee Board decided, or claimants abandoned, 824 refugee claims … Read More
Immigrant “Tricked” Into Business Agreement Successfully Rescinds Contract
Glen Forrester, a Vancouver civil and commercial litigator, recently successfully defended a potential immigrant who a Canadian business was suing. The Canadian business was trying to compel the individual to pay $200,000 pursuant to an asset purchase agreement. The case is noteworthy from an immigration law standpoint as the individual entered into the asset purchase agreement because she thought it would assist her with her immigration application, when in fact it did not. The case did not involve malicious intent on the part of the Canadian business. The business’s principal genuinely believed that the asset purchase agreement met British Columbia’s requirements for immigrating under the British Columbia Provincial Nomination Program, admitted that he ran advertisements stating the same, and acknowledged that he told the potential immigrant that the asset purchase agreement met the BC PNP requirements. Notwithstanding that there was no malicious intent on the part of the seller, Glen Forrester successfully argued that the asset purchase agreement was invalid because of innocent misrepresentation. Innocent misrepresentation generally occurs in situations where the representor has reasonable grounds for believing that the representation is true. There is no need to show that an individual’s reliance on the misrepresentation was reasonable. The remedy for innocent misrepresentation … Read More
Canadian Experience Class Going to One Year
On January 1, 2013, the Canadian work experience requirement of the Canadian Experience Class (“CEC“) is being reduced from 24 months to 12. Applicants who have 12 months work experience in the 36 months preceding an application will now be eligible to apply to the program. Only applicants with National Occupational Classification 0, A or B work experience will continue to qualify for the CEC. As well, a minimum language threshold will be required in each of the four abilities for applicants to the CEC. As with the new Federal Skilled Worker Class, the Minister shall have the authority to set the language threshold. Initially, it is anticipated that the threshold would be set at CLB/NCLC 7 for NOC 0 and A applicants and CLB/NCLC 5, or in each ability for NOC B applicants. The new CEC regulations are: 87.1 (1) For the purposes of subsection 12(2) of the Act, the Canadian experience class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada, their experience in Canada, and their intention to reside in a province other than the Province of Quebec. Member of the class (2) A foreign … Read More
Retroactive PRRA Termination Begins
Yesterday, Citizenship and Immigration Canada (“CIC“) began retroactively closing existing Pre-Removal Risk Assessment (“PRRA“) applications for which Bill C-31’s 12-month bar applies. Bill C-31 amended the Immigration and Refugee Protection Act’s (“IRPA“) provisions regarding who was ineligible to apply for a PRRA. IRPA now provides that: 112(2) .. a person may not apply for [a PRRA] if (b.1) subject to subsection (2.1), less than 12 months have passed since their claim for refugee protection was last rejected — unless it was deemed to be rejected under subsection 109(3) or was rejected on the basis of section E or F of Article 1 of the Refugee Convention — or determined to be withdrawn or abandoned by the Refugee Protection Division or the Refugee Appeal Division; [or] (c) less than 12 months have passed since their last application for [a PRRA] was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or the Minister. CIC will be closing PRRA and subsequent PRRA applications that are currently in its inventory for which a previous Immigration and Refugee Board (“IRB“) or PRRA decision (rejected, abandoned or withdrawn) has been made within the last 12 months (August 15, 2011 to August 14, 2012) and for which a country exemption does not apply. The countries that are currently exempted from the 12-month PRRA bar are the following: Central African Republic, Egypt, Guinea-Bissau, … Read More
Can People Working Without Status Enforce Contracts?
The Ontario Labour Relations Board (the “OLRB“) has just released a fascinating decision which involves the interplay between immigration and employment law. The case involved a German foreign national who entered into an employment agreement with Essar Steel Algoma (the “Employer“) prior to Citizenship and Immigration Canada (“CIC“) issuing him a work permit to work for the company. Things did not work out between the Employer and the foreign national, and the Employer terminated the relationship. The United Steelworks of America (the “Union“) filed a grievance, and the issue of when the foreign national became an employee of the Employer arose. The OLRB decision involved numerous factual determinations involving contested issues of when the foreign national alerted the Employer that he was a foreign national who required a work permit, whether the Employer promised the foreign national that obtaining a Labour Market Opinion (“LMO“) would be easy, and whether the Employer rescinded the foreign worker’s job offer upon the LMO being rejected. Lurking in the background of these factual disputes was the legal issue of “when does a foreign national become an employee of an employer?” The Union argued that as a matter of contract law a person becomes an … Read More
Adult Children, Disabled Adults, and the Best Interests of the Child Analysis
“Every child is a dependent but not every dependent is a child”. Individuals who apply for Canadian permanent residency can request that visa officers consider humanitarian & compassionate factors to exempt them from general immigration requirements. Such factors can include the best interests of children. Pursuant to Canada’s Federal Court of Appeal in Hawthorne v. Canada (Minister of Citizenship and Immigration) 2002 FCA 475), the best interests of the child in a humanitarian & compassionate consideration context involves, for example, an assessment of the benefits a child would receive if a parent was not removed from Canada, in conjunction with an assessment of the difficulties the child would face if the parent was removed and the child remained in Canada, or if the child was to return to the parent’s country of origin with the parent. The issue of whether the best interests of a child extends to adult dependents is somewhat unresolved. Some decisions stated that the determining factor was whether an adult child was dependent on his or her parents. In Naredo v. Canada (Minister of Citizenship and Immigration), a 20-year old was determined to be a child under Canada’s Immigration and Refugee Protection Act (“IRPA“) because he was dependent on his … Read More
C-31 Regulation Released Regarding Timelines
Bill C-31, also known as the Protecting Canada’s Immigration System Act introduced strict timelines to Canada’s refugee determination process. The Canadian government has now introduced the Regulations which provide specifics as to the new timelines. Time limits for scheduling the first-level hearing, for filing and perfecting an appeal and for making a decision on an appeal will be as follows: The Basis of Claim document shall be submitted not later than 15 days after the referral of the claim to the Immigration and Refugee Board, if the claim is made at a Port of Entry. If the claim is made at an inland office, the required documents and information would have to be submitted at the time of the eligibility interview. Port of Entry claimants would be given an extra 15 days to complete the Basis of Claim, which Inland claimants must submit at the time of the eligibility interview. Hearings at the Refugee Protection Division shall be scheduled for a date that is not later than 30 days after the claim is referred for inland Designated Country of Origin claimants, not later than 45 days after the claim is referred for Port of Entry Designated Country of Origin claimants, … Read More
Summer Changes See Suspension of Programs, Changes to Others
The start of summer has seen Citizenship and Immigration Canada (“CIC”) make numerous changes to Canadian immigration programs. Many application classes have been modified for new applicants, if not outright suspended. The changes include: “Pausing” the acceptance of new Federal Skilled Worker Program and Federal Investor Applications; Prohibiting certain businesses from participating in the Temporary Foreign Worker Program; Restricting the availability of humanitarian & compassionate considerations and Pre-Removal Risk Assessments; and Mandatory language testing for lower-skilled provincial nominees. Fifth Set of Ministerial Instructions Results in Suspension of New Federal Skilled Worker Program and Federal Investor Applications On June 29, 2012, Jason Kenney, the Minister of Citizenship and Immigration Canada (the “Minister”) introduced the fifth set of Ministerial Instructions (“MI-5”). Ministerial Instructions allow the Minister to unilaterally make operational changes to how CIC manages application intake. As a result of MI-5, CIC is no longer accepting new applications under the Federal Skilled Worker Program, except for those applications made under the PhD eligibility stream and those with qualifying offers of Arranged Employment. As well, CIC is no longer accepting new Federal Immigrant Investor Class applications. The temporary “pauses” in accepting new applications for these programs will remain in effect until otherwise … Read More
Bill C-43 – the Faster Removal of Foreign Criminals Act
The Conservative Government has introduced Bill c-43, the Faster Removal of Foreign Criminals Act. The changes are: Current Changes 1) Eligible individuals may file an appeal to the Immigration Appeal Division (IAD) if sentenced to less than two years imprisonment inCanada. Eligible individuals could file an appeal to the IAD only if sentenced to less than six months’ imprisonment inCanada. For example, a permanent resident who has lived in Canada since he was a child and who was sentenced to 6 months in jail (including a suspended sentence) for assault would no longer be eligible to appeal a removal order. 2) Foreign nationals who are inadmissible on the most serious grounds have access to humanitarian and compassionate (H&C) provisions to overcome their inadmissibility. Foreign nationals inadmissible on the grounds of security, human or international rights violations, or organized criminality would no longer be able to apply under H&C provisions. For example, a former war criminal would be ineligible to request H&C considerations as a way to delay removal or remain in Canada permanently no matter how long the person has lived in Canada and no matter how many Canadian citizens are dependent on the person. There will be no discretion. However, the Minister may, at his own initiative, … Read More