Don Butler at the Ottawa Citizen has published a pair of fascinating articles about current tensions between the Canadian government and the Federal Court. Both articles are worth a read in their entirety, as they contain numerous statistics, stories, and quotes. For example, did you know that: A chief justice of the Federal Court contacted the president of the Canadian Bar Association and asked him to respond to Jason Kenney’s public criticisms of the judiciary? That Conservative MPs tried (and failed) to haul Justice Boivin before a parliamentary committee to answer questions about one of his decisions? That in the first half of 2011 judges appointed in the last three years were far less likely to quash decisions by government officers and tribunals on most immigration issues than judges appointed by Liberal prime ministers? That following Kenney’s public criticisms of the judiciary overturned fewer (although not significantly) government decisions? The former chair of the Immigration and Refugee Board has said that some board members have discreetly deferred to criticism that Jason Kenney made of the Board? The series also featured the following extremely useful chart showing the judicial review success rate amongst the different judges. The two stories are: Series … Read More
Summary of Auditor General Recommendations to CIC and CBSA
The Auditor General of Canada has released its fall report, which contains a section on the process for determining inadmissibility to Canada. The CBC provided a rather bleak summary of the Auditor General’s findings when it reported: The audit identified a number of problems: it found that many of the criteria used by visa officers to identify high-risk applicants are outdated; CBSA analysts who provide security advice to visa officers have not received the necessary training; their work is rarely reviewed; and there was no evidence that mandatory checks were completed. Wiersema said many of these problems have been identified by previous audits and the department has committed to fixing them, but they haven’t followed through on those promises. “I find it disturbing that fundamental weaknesses still exist,” he said.”It’s time that CIC and CBSA work together to resolve them.” Wiersema said the security manuals used by visa officers when making their decisions haven’t been updated since 1999. The audit also pointed out that medical screening for danger to the public has focused on syphilis and tuberculosis for the past 50 years, even though health professionals are required to monitor and report on 56 diseases. Citizenship and Immigration has not … Read More
Entrepreneurs No Longer Have to Report Terms and Conditions
On November 18, Citizenship and Immigration Canada released Operational Bulletin 360: Entrepreneur Terms and Conditions. Coming off the heels of the government’s decision to temporarily suspend accepting new applications in the Entrepreneur Program, the Operational Bulletin makes life easier for those Entrepreneurs already in Canada. Section 98 of the Immigration and Refugee Protection Regulations provides that Entrepreneurs must: Control a percentage of the equity of a qualifying Canadian business equal to or greater than 33 1/3 per cent; Provide active and ongoing management of the qualifying Canadian business; and Create at least one incremental full-time job equivalent in the qualifying Canadian business for Canadian citizens or permanent residents. As of February 1, 2012, active monitoring of terms and conditions for entrepreneurs will cease. However, Entrepreneurs will still be expected to comply with their conditions. Accordingly, on December 1, 2011 Citizenship and Immigration Canada will counsel approved entrepreneur class permanent residence applicants to meet the conditions. However, they will also be informed that they will only need to provide evidence showing that they met their conditions if specifically requested to do so by a Citizenship and Immigration Canada official. They will only be requested to do so if officers have a … Read More
Comparing Immigrant Assimilation in Canada and the United States
The Wall Street Journal was out with a piece over the weekend titled Immigrants Are Still Fitting In. It is a summary of a recent study by the Manhattan Institute which compared immigration assimilation in North America and Europe. The WSJ produced the following chart which summarizes the study’s findings: As the chart shows, the study found that Canada ranks highest amongst Western democracies in terms of assimilation. The study cited the following possible reasons for why Canada might rank ahead of the United States in this regard: Two facets of Canadian immigration policy may help explain the rapid integration of foreigners into Canadian society. First, the path to citizenship in Canada is short and easily traveled. Foreigners face a three-year residency requirement (it is five for legal permanent residents in the United States and as many as twelve in some European countries), and the nation has taken a liberal stance toward dual citizenship since 1977. Second, Canadian immigration policy places a distinct emphasis on attracting skilled migrants. Thirty percent of foreign-born adults in Canada have college degrees, while the rate is 23 percent in the United States and 10 percent in Spain and Italy. Educational attainment is not a … Read More
Clearing the Parental Backlog
It looks like Citizenship and Immigration Canada is serious about clearing that parental and grandparent sponsorship backlog. On November 7, 2011, CIC released Operational Bulletin 353 – Change in Procedures for Processing Family Class Parent and Grandparent Applications. If you have an application to sponsor a parent or grandparent in processing take note. Starting mid-November, CIC will begin sending out letters to sponsors with the oldest applications in processing requesting the submission of additional documentation and forms. Applicants will be given 90 days to comply with the request, and informed that if they do not submit the additional documentation and forms within the 90 days, then their application will be closed. Furthermore, if the additional forms and documents are incomplete, then applicants will only have 30 days to return their application with the missing documents, or the application will be closed. Considering that until last week people with sponsorship applications in processing thought that it would be years until their was movement on their file these deadlines are pretty strict. So take note and get ready! It would be a change if the parent and grandparent sponsorship application backlog was reduced simply through applications being rejected for failure to comply … Read More
International PHD Students – New Category under Federal Skilled Worker Program
Ministerial Instruction 4’s changes to the Parent and Grandparent Sponsorship Program overshadowed the introduction of a new stream to the Federal Skilled Worker Program. Effective immediately, a maximum of 1,000 new Federal Skilled Worker applications from international students pursuing PhD studies at Canadian institutions will be considered for processing each year. This cap will be calculated over and above any other Federal Skilled Worker caps on application intake. Applicants must meet one of the two following criteria: Be an international student currently enrolled in a PhD program, delivered by a provincially or territorially recognized private or public post-secondary educational institution located in Canada, and have completed at least two years towards the completion of their PhD and is in good academic standing, and not a recipient of a Government of Canada award. or Be a foreign nationals who has completed a PhD program from a provincially or territorially recognized private or public post-secondary educational institution located in Canada no more than 12 months prior to the date that their application is received. If the Applicant was a recipient of a Government of Canada award then the applicant must have satisfied the terms of the award. This is certainly a welcome … Read More
“Pause” on New Parental Sponsorship Applications
On November 4, 2011, the federal government introduced its plan for reducing the backlog in parent and grandparent sponsorship applications. With more than 165,000 applications in the queue, and a wait time approaching a decade, it was clear that something had to be done. The government’s plan involves numerous phases: One – Increase by over 60 percent the number of sponsored parents and grandparents Canada will admit next year, from nearly 15,500 in 2010 to 25,000 in 2012. Two – Introduce a new “Parent and Grandparent Super Visa,”which will be valid for up to 10 years. The multiple-entry visa will allow an applicant to remain in Canada for up to 24 months at a time without the need for renewal of their status. The Parent and Grandparent Super Visa will come into effect on December 1, 2011. Parent and Grandparent Super Visa applicants will be required to obtain private Canadian health-care insurance for their stay in Canada. Three – The government will consult stakeholders on how to redesign the parents and grandparents program to ensure that it is sustainable in the future. Four – There will be a temporary pause of up to 24 months on the acceptance of new sponsorship applications for parents and grandparents. The … Read More
Stays of Release
Individuals who have been ordered released from detention by the Immigration and Refugee Board should not always assume that the matter is finished. The Department of Justice, at the request of its government client, can seek to overturn that decision. They can also seek a stay of the release from detention pending the resolution of the underlying application to overturn the release order. The test for a stay of release from detention is the same tripartite test found in all stay applications. In order to obtain a stay of release, the Department of Justice must show that: There is a serious issue to be tried; There is a risk of irreparable harm; and The balance of convenience favours preventing the release. There is a Serious Risk to be Tried There are many reasons why the Government of Canada might seek a judicial review of an Immigration and Refugee Board Member’s decision to release an individual from detention. One of the more common ones is where a Board Member releases someone who the Immigration and Refugee Board has already ordered an individual detained. In Canada (Minister of Citizenship and Immigration) v Thanabalasingham, 2004 FCA 4, Justice Marshall Rothstein stated: Credibility of the individual … Read More
FBAR – Implication for Canadian Permanent Residents and Citizens
The Internal Revenue Service (IRS) is increasing its focus on reporting of foreign financial accounts by U.S. persons. Despite recent protests by Finance Minister Jim Flaherty on the matter, the changes seem like they are going to go ahead. There are potentially significant implications that representatives should advise their US clients about. Put simply, just because your US clients are becoming Canadian permanent residents or citizens does not mean that they are absolved from reporting their taxes to the United States. The Report of Foreign Bank and Financial Accounts (FBAR) is an IRS form. Any United States person who has a financial interest in any financial account in a foreign country where the aggregate value of the accounts exceeds $10,000 is required to file the form. Accounts that require reporting include Canadian bank accounts, investments, mutual funds, life insurance, RRSPs, RESPs, TFSA’s, etc. With such a low threshold, the FBAR reporting requirements likely apply to many of your American clients. The IRS website states that failure to file an FBAR when required to do so may result in civil penalties, criminal penalties or both. If your clients have not been filing an FBAR when they were required to do so, … Read More
Custodianship for Minors
Many minors wish to reside temporarily in Canada. Their reasons for doing so range from making extended visits to the more common scenario of studying in Canada as an international student. In order to obtain a visitor visa or a study permit, minor applicants generally must supply two notarized declarations. The first is from the parent or legal guardian in the applicant’s country of origin. The second is from the minor applicant’s intended custodian in Canada, stating that arrangements have been made for the custodian to act in place of the parent and to support the child. On September 15, 2011, Citizenship and Immigration Canada introduced an exception to the custodianship requirement to some minor’s aged 17 and older. Definition of Minor Child In Canada, each province or territory defines the age of majority. Anyone under the age of majority at the time of their arrival in Canada is considered to be a “minor child.” The age of majority is 18 in: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan. The age of majority is 19 in: British Columbia, New Brunswick, Newfoundland and Labrador, Nova Scotia, Northwest Territories, Nunavut, and the Yukon. (On a side note, it is interesting … Read More