Work Permits for Vulnerable Workers

Section 207.1 of the Immigration and Refugee Protection Regulations (the “IRPR”) states that (modified for ease of reading):

207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they

(a) hold a work permit; or

(b) previously held a work permit, have applied for a renewal of that permit and are authorized to work in Canada under implied status.

Family member of vulnerable worker

(2) A work permit may be issued to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).

In other words, temporary foreign workers in Canada who are experiencing, or have experienced abuse, can apply for open work permits. People who have engaged in unauthorized work or have not complied with employment conditions are not excluded from the program.

The objectives of IRPR r. 207.1 are to:

provide migrant workers who are experiencing abuse, or who are at risk of abuse, with a distinct means to leave their employer;
mitigate the risk of migrant workers in Canada who are leaving their job and working irregularly (that is, without authorization) as a result of abusive situations
facilitate the participation of migrant workers who are experiencing abuse, or who are at risk of abuse, in any relevant inspection of their former employer, recruiter or both; and
help migrant workers in assisting authorities, if required (noting that this is not required for the issuance of the open work permit), by reducing the perceived risk and fear of work permit revocation and removal from Canada.

To qualify, applicants must demonstrate evidence of abuse.

Abuse

Abuse consists of any of the following:

physical abuse, including assault and forcible confinement;
sexual abuse, including sexual contact without consent;
psychological abuse, including threats and intimidation; and
financial abuse, including fraud and extortion.

Type of abuse	Description	Examples
Physical abuse	Physical abuse generally involves physical contact intended to cause feelings of intimidation, pain, injury, or other physical suffering or bodily harm.	hitting, beating, slapping, punching, choking, burning, pushing or shoving a worker in a way that results or could result in injury confining a worker (habitual residence or other) forcing a worker to engage in drug or alcohol use or illegal behaviour against their will and possibly creating dependencies
Sexual abuse	Sexual abuse generally encompasses any situation in which force or a threat is used to obtain participation in unwanted sexual activity as well as coercing a person to engage in sex against their will.	forcing or manipulating a worker into having sex or performing sexual acts forcing a worker to perform unsafe or degrading sexual acts using physical force to compel a worker to engage in a sexual act against their will using physical force, weapons or objects in non-consensual sexual acts involving other people in non-consensual sexual acts exposing, suggesting, attempting or completing a sexual act involving a worker who is unable to understand the nature or condition of the act, unable to decline participation or unable to communicate unwillingness to engage in the sexual act (for example, because of illness, disability, the influence of alcohol or other drugs, intimidation, or pressure)
Psychological abuse	Generally, psychological abuse is a pattern of coercive or controlling behaviour, iterated threats or both.	insulting, intimidating, humiliating, harassing, threatening (including with respect to immigration status or deportation), name-calling, yelling at, blaming, shaming, ridiculing, disrespecting or criticizing a worker controlling what a worker can and cannot do threatening a worker with murder intimidating, threatening or harming a worker with a knife, gun, or other object or weapon using religious or spiritual beliefs to manipulate, dominate or control a worker
Financial abuse	Financial abuse is described as a form of abuse where one person has control over the victim’s access to economic resources.	stealing or taking a worker’s money, salary, or cheques or coercing them into giving these things up rigidly controlling finances and limiting the amount of resources a worker can access withholding money or credit cards exploiting a worker’s economic resources requiring a worker to deposit money into their bank account for fraudulent purposes closely monitoring how a worker spends money destroying a worker’s property spending a worker’s money without their consent

Specific examples of abuse include where the

employer, recruiter or both have coerced the migrant worker into paying exorbitant job placement and recruitment fees;
employer is repeatedly not paying wages owed to the migrant worker;
migrant worker is repeatedly harassed (for example, unwanted physical or verbal behaviour that is offending or humiliating) by a co-worker in their workplace;
migrant worker is forced to work in an unsafe work environment;
migrant worker is threatened by their employer if they complain about their work conditions;
migrant worker has exited an abusive situation but would be at risk of abuse if they returned; and
migrant worker may not be directly experiencing abuse but may be in a situation where their co-workers are being abused by their employer, putting them at risk of experiencing an abusive situation.

Evidence of Abuse

Evidence of abuse and risk of abuse may include but is not limited to the following:

a description of the abuse or risk of abuse faced by the migrant worker;
a letter, statement or report from an abuse support organization, medical doctor, health-care professional or other such entity;
a sworn statement (affidavit) by the applicant;
a copy of an official complaint form filed with an enforcement agency; and
supporting or additional material, such as victim impact statements, hard copies of email messages, photos showing injuries or working conditions, witness testimonies.

The standard that visa officers must adhere to is a “reasonable grounds to believe,” which is described as follows:

Standards of proof (higher to lower)	Description	Officer’s assessment
Beyond reasonable doubt	No doubt; convinced	Not applicable
Balance of probabilities	Likelihood of something being true	Step 1: Officers must be satisfied on a balance of probabilities (50 + 1%) that the facts and evidence provided by the migrant worker occurred and are credible.
Reasonable grounds to believe	More than a mere possibility; would satisfy an ordinarily cautious and prudent person	Step 2: Officers must determine if they have reasonable grounds to believe that abuse occurred or that there is a risk of abuse.
Mere suspicion	Simply an emotional reaction that it might be possible	Not applicable

H&C

There is some precedent that being a victim of abuse can constitute reasons for granting humanitarian & discretionary relief in a permanent residence application. In Kaur v. Canada (Citizenship and Immigration), 2018 FC 777, Justice Ahmed set aside a visa officer’s refusal of an H&C application involving someone who was a victim of employer abuse. He noted:

A troubling implication of the officer’s decision is that foreign workers who endure fraud or abuse in the course of their employment, and who are threatened with termination and deportation, can expect little sympathy from those who administer Canada’s immigration laws. I do not mean to suggest this was the officer’s intention. But the officer’s decision to ascribe only little weight to the appalling circumstances surrounding the loss of Ms. Kaur’s employment in Canada was not, in my view, consistent with the approach mandated by the Supreme Court in Kanthasamy. I am also left in some doubt whether the officer performed “the requisite analysis of whether, in light of the humanitarian purpose of s 25(1), the evidence as a whole justified relief” (Kanthasamy at para 45).