Last Updated on October 10, 2019 by Steven Meurrens
Regulation 100(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 states:
For the purposes of subsection 12(2) of the Act, the self-employed persons class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are self-employed persons within the meaning of subsection 88(1).
Becomming Economically Established
The IRCC Guidelines state the following about how officers should assess a person’s ability to become economically established in Canada.
- A self-employed applicant must demonstrate the intention and ability to create his/her own employment in Canada through cultural activities, athletics or the purchase and management of a farm.
- A person’s financial assets may be a measure of intent and ability to establish economically in Canada. There is no minimum investment level for a self-employed person. The capital required depends on the nature of the work.
- Applicants must have sufficient funds to create an employment opportunity for themselves and support themselves and their family members. This includes the ability to be self-supporting until the self-employment has been created.
- A demonstrated ability to support themselves and their family through their talents could be a good indicator of their ability to continue to do so in Canada.
- It is intended that the Self-Employed Persons Class enrich Canadian culture and sports. In other words, when applicants meet the test of experience and there is a reasonable expectation they will be self-employed, the test of significant contribution becomes relative. For example, a music teacher destined to a small town can be considered significant at the local level. Likewise, a freelance journalist who contributes to a Canadian publication will meet the test.
- It is the intent of the Regulations that any farmer meeting the experience requirement, regardless of field of activity, is eligible for consideration in the Self-Employed Persons Class. The basic selection requirement to be met by applicants is that they intend to purchase a farm, have the financial resources to do so and have the intention and ability to manage the farm to be purchased.
- In the end, the definition of “significant contribution” is left to the discretion of the officer, but is not intended to bar qualified self-employed persons who are applying in good faith. Its inclusion in the definition is intended to bar frivolous applications.
In Gur v. Canada (Citizenship and Immigration), 2019 FC 1275, Justice Roy stated that applicants need to provide clear examples of what their business venture would be. Applicants need to demonstrate “what the business is about and what the prospects of success are.” Although he stopped short of stating that a business plan is required, the following paragraph suggests that it is:
the fundamental requirement is that an applicant who wants to become a permanent resident on the basis of his/her self-employment must show the ability to become economically established in Canada which, in turn, translates into an “ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada” (definition of “self-employed person” at subsection 88(1) of the Regulations). It is not sufficient to claim having some abilities and wishing to be self-employed is not sufficient: one has also to show the ability to be self-employed, to create one’s own job (in French, “en mesure de créer son propre emploi”). In effect, the applicant did not provide any information that could support his contention that he has the ability to be self-employed in Canada. He is a baker who is capable of producing custom-made cakes. There is no support provided for the statement that there is a rapidly growing market for custom-made cakes throughout British Columbia and Canada. The GCMS notes address specifically this lack of evidence as the visa officer faults the applicant for not submitting any details concerning his intentions or plan of activities leading to his self-employment in Canada. There is not even any evidence of research of the work and business environment in British Columbia. There is no way for the visa officer to be satisfied of the ability of the applicant to become economically established in Canada. This constitutes a far cry from the finding in Mohitian that a request for more information, which was not the equivalent of a business plan, was turned into an unrealistic business plan.
In Wei v. Canada (Citizenship and Immigration), 2019 FC 982, Justice Annis reached a similar conclusion, stating that:
As a final word on the subject, the manner whereby the three requirements of experience ability and intention come together to demonstrate a viable economic venture will vary depending upon the circumstances. In this matter, the project of making a series of films for television is a multitasked undertaking involving many forms of cultural activities and other trades associated with producing and marketing a successful film. Smaller scale projects can better leverage personal experience and ability to establish probabilities of success in a specific cultural economic activity with accordingly less onerous past commitments needed to demonstrate a likely intention to follow through on the activity. However, fundamental to every application is a demonstration that the projects have been thoroughly conceived and concrete steps taken to ensure the implementation that will result in a successful economic activity to meet the requirements of a self-employed immigrant under section 88(1).