All posts by Will

Quick Updates: NCM Article + Ongoing Projects + Thoughts on Aylan

Syrian boy

Hi VIB Friends!

It has been a good minute since I last posted and not for a lack of topics to post about. Just today, we have arguably seen Canadian immigration law thrust back in the forefront of the political agenda through the tragic news of little three year-old Aylan Kurdi, his sibling, and his mother drowning while trying to leave Turkey.  I will share my brief thoughts on that later.

Vancouver-based #NoOneisIllegal (NOII) launched their very well-designed site/project, http://www.neverhome.ca which has been accused by former Minister of Canadian Immigration and current Minister of Defence, Jason Kenney of being a “fringe anarchist group.”

Even with immigration legislation being paused by the pending October election, the week to week always brings new updates

But before that, here are some quick updates on my past week.

NCM Article

Marriage Fraud Article

As many of you know I wrote this piece in response to a Toronto Sun article that I felt quite unnecessarily and inappropriately threw foreign national spouses under the bus for marriage fraud perpetrated by Canadians. I also suggested other root causes. My piece can be found here.

Outside of the article itself, I felt that I was able to engage many foreign national spouses who felt that their narrative was not being adequately represented in this piece – trying to use a ‘bad apple’ example to paint the entire orchid rotten.

I understand that several foreign national spouses who currently are in the process of sponsorship may be working to write a response piece that highlight their true day-to-day struggles – uncertain processing times, inability to work and study, and obtain the respect and acceptance necessary to establish their lives in Canada.

Ongoing Projects

First on the work end, I have been working on new “fringe areas” of the law including vehicle importation and passport revocation. The passport revocation case that I have ongoing I am particularly proud of because it is the first in the office and an area of law I believe will continue to increase thanks to recent amendments and Bill C51. See Canadian Passport Order legislation.
On the freelance/writing side, I am working on a new piece regarding technology and immigration law for Kabuk Law. It should be quite an interesting read and I think it will really play off the current focus of the Canadian Bar Association with respect to increasing accessibility of law and justice through technology and adapting to pending change.

I also received a really kind email from a blog follower in the United States. I can’t talk about all the details yet, as I want to understand it first, but it sounds super exciting. Thank you to the individual who emailed me for making my day!

Finally, I am working on some exciting ideas to launch my business immigration practice. I have been quite busy with my litigation/refusals practice but I was recently inspired by a close law school friend to look more into the area. I hope to liaise with more of the experts in the field as I begin trying to build a base. Exciting, scary, but necessary to stay competitive in the immigration law business.

Outside of Work

Some of you may know that on a personal level I am going through quite an emotionally challenging time. My father is quite ill and this has forced me to rethink a lot about work, life, and family. I joke, sadistically, that I have now been employed as a part-time dishwasher. I have had to step back a little on some of my commitments with organizations that I care a lot about. I also have taken up meditating, although this week has been increasingly difficult. I really thank Jeena Cho, a lawyer based out of San Francisco, for inspiring me along that route. Check out her podcast here on Soundcloud. She also has links on Itunes and other apps.

On this front – and I apologize for sounding like a broken record in recent posts. Family always comes first. Health of family would be the first of first. Time is too precious to spend worrying about your own career success/failure and I think even on a work end – clients respect and appreciate when you approach business with a family-oriented perspective.

On a more positive note, my girlfriend/fiancee to be is making her first trip to Canada in mid-September. I am very excited to show her our future home and begin planning for my future extended family.

On Aylan

I am absolutely devasted by the news of Aylan. The images of his lifeless body washed up on the shore stirred up strong emotions. Apparently, he may not have been included in the initial refugee claim that was refused by Canada but the case has definitely began a much needed dialogue.

Again, as I have discussed in an earlier NCM post on the topic, there needs to be some caution in reporting news. Perhaps we all (myself included) unfairly placed blame before even verifying the facts. I’m going to give it a little more time before commenting further on his particular case.

Yet the fact still exists that we need to do more. Canada, as a bastion of global humanitarianism, of human rights, needs to do more. The numbers of refugees we have currently resettled from Iraq and Syria are not sufficient given our capacity. Politics aside, this is time for us to hold up the values that we stand on as Canadians. Yes, it is a recession. Yes, essential service for Canadians, have taken a cut in recent years. But to stand on the sidelines we will never be forgiven for, by whoever the higher power may be.

As we head into the long weekend (I am attending my law school big sister’s wedding, with law school little sister in tow), I wish everybody the best. Love and health. Always.

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Why is Express Entry So Tough on International Students?

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A common theme of many of my recent consultations has been the challenge many international students are experiencing as a result of Express Entry. I am finding more and more second and third-year international students asking me about best practices in planning their paths to permanent residency.

There are several reasons why this path is so difficult

1.  Meeting Basic Economic Immigration Program Requirements Tough for Many International Students

First, just to meet the basic requirement of either the Canadian Experience Class or the Federal Skilled Worker a year of skilled experience (at a NOC 0, A, B level) is required.

For the Canadian Experience Class (CEC), that work experience must consist of one year obtained within the past three years and cannot include work experience obtained while on a study permit (e.g. as a co-op student or during scheduled breaks). It also excludes time working as a contractor, an economic model growing increasingly popular for its Canadian tax-benefits to employers during the economic crisis. For newly graduated international students, who can be granted no more than three-year post-graduate work permits, obtaining that one-year of skilled work experience can be a tall order.

For the Federal Skilled Worker (FSW) Program, the one-year of skilled work experience can be in the past ten years, but that work experience has to have been continuous over a period of a year. Many international students have had to balance work and school, many taking part-time jobs that are not considered continuous under the FSW program requirements

2.  Express Entry Does Not Award International Students Favourable Points

Second, many of the points that are awarded for Express Entry that bring individuals over the threshold are awarded for language and work experience (or a combination of both). For example, under the skill transferability factors in part C for the Comprehensive Ranking Score (“CRS”) criteria, two or more years of Canadian work experience, two or more years of foreign work experiences, or CLB 9+ can double CRS scores in this caregory. Again, work experience is difficult to come by for young individuals and many international students (particularly from non-English speaking jurisdictions) may find it difficult to obtain the CLB 9+ that boost CRS scores

3.  Employers Will Be Hesitant to Pursue LMIAs for Skilled International Graduates

Third, Labour Market Impact Assessments (LMIA) for newly-minted international graduates are difficult to obtain. Holding a valid LMIA for a skilled position awards an Express Entry applicant 600 points and, as of this current date, guarantees them an invitation to apply for permanent residency. Many individuals after the expiry of a three-year work permit find that they require to obtain LMIAs in order to get a work permit that will allow them to work beyond their PGWP.

Unfortunately for them, in most circumstances employers will have to advertise the position to demonstrate that another Canadian cannot fill an international student’s shoes and do not possess equivalent qualifications. In this difficult job market, most non-managerial skilled positions will attract multiple candidates, many of whom are equally, if not, more qualified than the Canadian. Unless the candidate has a unique profile (that can’t include a third language in most cases, as a third language cannot be a job requirement unless it is mandatory for the position), it will be difficult to prove.

Finally, with CIC’s new employer compliance system which subjects Employers to sever administrative monetary penalties that can range up to the millions of dollars, the cost benefit of hiring an international student may not justify the associated compliance cost

4.  Many Skilled Worker PNP Programs Require “Several Years of Work Experience.”

In British Columbia, the BC Provincial Nomination Program Express Entry category, requires that an applicant have several years of related experience in the occupation. More recently, the BC PNP has come down more firmly on the requirement that several years is equivalent to at least two years. The challenge here is most International Graduates are given maximum three-year work permits. This essentially requires them to have two years of skilled experience in that particular NOC occupation. International students who start in entry level, low-skilled positions, such as bank tellers and customer service representatives will find this very difficult to achieve.

 Potential Tips for International Students

Unfortunately for international students, many of those looking for permanent residency two years into their post-graduate work permit will be limited to skilled worker categories. Individuals should begin planning their educational and work paths right away.

For example provincial nomination programs designed for international graduates become have become more important in today’s Express Entry environment. Here in British Columbia, the International Graduates Program (as of the date of this piece) is currently available only through Express Entry. Importantly, eligibility for this program requires applying within two-years of graduation.

While having to meet Express Entry requirements is a challenge, as described earlier, the 600 points provided by the nomination would counteract the low score issues.

Finally, the idea of pursuing further graduate studies prior to obtaining a PGWP may be more attractive. Further studies allow an individual to gain a key qualification that may differentiate them if a LMIA is required. It also may open up other options including post-graduate immigration streams, fellowships, and various professional positions under trade agreements, that could provide the crucial work permit required to get the necessary skilled work experience.

VIB STUDENT WEEK (Post 2): BRAVING THE FALLS – Canadian Immigration Challenges and Designated Learning Institutions

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Introduction

Without drowning out the metaphor, it is clear that the Canadian immigration environment that Citizenship and Immigration Canada’s Designated Learning institution (“DLIs”) find themselves in today is more akin to a huge waterfall than a calm ocean.

Over the past two years, DLIs have found themselves subject to increased scrutiny, tasked with greater and increased responsibility, and have been left arguably uncertain as to how to best advise international students (“International Students”) on their various Canadian immigration challenges. DLIs now have to answer to provincial educational authorities as well as the Federal government, all eager to ensure appropriate compliance. All this in the context of most student advisors (those that are not certified consultants or lawyers) being unable to provide advice but are required to provide updates on their International Students’ academic progress.

Heading into the Fall 2015 semester, student advisors for DLIs find themselves in a transitionary phase. The contours of the new International Student Program regime, now more than a year old, have gone through their obligatory hiccup phase.  The year-old regulations, for better or for worse, are now clearer and DLIs will be expected to communicate these regulations more clearly to students. While significant and positive ground has been made by the Immigration Consultants of Canada Regulatory Council (ICCRC) to put together the training and curriculum for Regulated International Student Immigration Advisors (RISIA), the certification program will not be done in time for the Fall. Many DLIs will still be left without adequate immigration legal representation.

 

Where I see this year going for International Students and DLIs

Whereas last year there may have been “school-hall passes” provided for individuals who were not actively pursuing studies (there have been quite a few interesting cases of U.S. day trips gone wrong) or enrolled in co-op programs where more than 50% of the curriculum was outside of the classroom, you can expect this to end. Schools may bare the overall brunt for not clarifying attendance policies or building non-compliant programs.

This year, possibly more than past years, International Students may have questions about the transition to Permanent Residency or how their programs may set them up for this transition later on. The Express Entry system has highlighted the challenges of International Students obtaining the requisite work experience to be selected under Canada’s economic immigration program. Seemingly harmless questions such as “should I try and get a work permit now and then apply to graduate school later?” or “should I transfer into another University’s online business program” may hold heavy immigration consequences for both applicant and advising institution.

This year, I predict that we will get some much needed clarification on some of the grey issues in International Student advising. These include concerns about distance learning, sick leaves, non-coop research gigs, and immigration status for students needing to make up courses or take extra credits.

I also predict that increasingly, International Students unhappy with immigration results will increasingly go to public forums (including the media) to voice their displeasure. Although the immigration challenges may be completely unrelated to the advice provided by the DLIs, there will likely be a presumption of institutional wrongdoing grounded in the fact students are paying a lot of money to attend classes. Advisors who did not advised (due to being unable to) or inadvertently providing immigration advice (when trying to provide information) may be on the hook for those mistakes.

 

What may DLIs do to protect the Fall?

As several schools begin their orientation sessions, it may be useful to seek professional advice (from a qualified consultant or lawyer) prior to distributing material containing immigration information/advice. Websites, for many DLIs now many months (and possibly years) old, should be updated accordingly. Proper disclaimers regarding general information and legal advice should always be prominently displayed. Proper, contemporaneous notes of all one-on-one immigration-related conversations are now a must.

One of the major challenges for DLIs is keeping up with the legislation. I have seen the materials for more than a few schools that is out of date (even if only by a few weeks). Individuals have approached me during consultations and I have had to tell them that the program is not open to Applicants and that they should keep themselves updated on regular basis as law and immigration policies can (and do) change that quickly.

Many DLIs may wish to invite consultants and lawyers to provide talks and assist in reviewing important program requirements and decisions. Many DLIs may fear working with nit-picky outside counsel, but their services may be invaluable. For example, I know of more than one case where an immigration representative in helping a failed applicant was able to inform a DLI as to the reasons why study permit refusal letters were being sent.

Other issues that immigration counsel may be able to advise on:

  • Will the distance learning portions affect the eligibility of International Students for Post-Graduate Work Permits?
  • Does the program I am offering still qualify for the immigration program the International Student is seeking?
  • Are their some programs or options that have not yet been provided to International Students?

Finally, DLIs should consider having an immigration strategy in place, in the case of a student who has been refused by immigration or receives negative information regarding their immigration status comes to the school’s attention. Too many chefs (advisors) in the kitchen, diagnosing immigration refusals may lead to very confused students and unnecessarily bureaucratic (and possibly public relations) nightmare for the school.

A final word

Like much of Canadian immigration legislation, the regulations in the International Student Program are challenging and can be counterintuitive to regular practice. Education remains a huge opportunity for Canadian institutions, both public and private, and building teams and strategies around better communicating with and competently advising International Students around Canadian immigration issues should be a priority.

 

 

 

VIB Student Week (Post 1) – Distance Learning, Our Distant Understanding

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As we welcome the end of the summer, and Canada’s begins welcoming international students to its many world-class learning institutions, Vancouver Immigration Blog (VIB) will take an in-depth look at student-related Canadian immigration issues. This is student week! We hope students and institutions alike find this series particularly useful. 

What is Distance Learning?

With the recent news of several Niagara College student suing the Designated Learning Institution (“DLI”) for allegedly promising the ability to obtain Post-Graduate Work Permits (“PGWPs”) through their four-month transfer program, it is an appropriate time to study why Distance Learning is causing so much trouble.

Citizenship and Immigration has provided the following description of Distance Learning on their website:

Distance learning can be through e-learning, correspondence, or internet courses. Distance learning is a process by which technology is used in ways where the student does not have to physically be in the place where the teaching is taking place.

Since by definition distance learning does not require one to be in Canada, a study permit cannot be issued for this type of course. For example, if a foreign national authorized to work in Canada is prohibited from engaging in studies as per a condition of their work permit, they are allowed to engage in distance learning courses.

However, some distance learning courses include an in-Canada portion to the program (e.g., special tutorials or the writing of final exams). If the overall course of study is greater than six months, then the student requires a study permit for the in-Canada portion of the program, even if the in-Canada portion is less than six months. The duration of the study permit should be for the duration of the in-Canada portion only.

(emphasis in original)

The issue with this definition of distance learning is that in its attempt to be “catch-all,” it oversimplifies the much more complex world of curriculum design. Many schools, for reasons completely unrelated to immigration, have courses where Professors teach via virtual lecture, where students do not meet physically in class on a regular basis, or even where experiential-based learning is taught through field research. It is also not clear whether a program itself can be non-distance learning if it has only a few distance learning courses as constituent elements.

On the contrary, you can see that trying to carve out a too-narrow definition of distance learning can certainly open up the Canadian immigration system to abuse. Individuals who study in “distance learning” programs (without Canadian in-class components) can take these courses while working in Canada or even as visitors. Without rules and regulations around distance learning, arguably schools could design purely-economic motivated programs and avoid the study permit process altogether – leaving international students duped.

Complicating matters is the importance of a strong study permit scheme to our overall immigration regime. It that our strong educational institutions are one of our most attractive features to new immigrants. It is well-known that international student industry brings in to Canada at least $8 billion dollars a year (and this is just from old 2010 estimates). The common ratio is that 1 international student can cover tuition for 4 domestic students. Education attracts students and immigrants to Canada and with it, the next generation of young Canadian permanent residents and citizens.

It is important to note that this stage that for students who want to be in Canada, beyond merely the term of their study, rely on the PGWP, a program that allows graduates of Canadian institutions to obtain work permits equal (but no longer) than the length of their studies. This period of time provides the university graduate the period to gain the requisite skilled work experience to qualify for Canada’s economic immigration programs or obtain a provincial nomination. The PGWP can only be obtained once per international student, regardless of whether further academic degrees are obtained.

Taking a program of study by Distance Learning however, does not qualify one for Post-Graduate Work Permits. As stated by CIC on their website.

Distance learning

Students who complete a program of study by distance learning (from outside or inside Canada) are not eligible for the PGWPP.

As discussed earlier, this short policy position raises many questions. What if the program is a mixture of in-class courses and distance learning courses? Why does the PGWP definition use ‘program of study’ while the earlier definition of distance learning rely on ‘course.’

Complicating matters further, CIC says the following about educational programs with an overseas component (such as an exchange).

Educational programs with an overseas component

If a student completes a program of study that has, as part of the program, an overseas component, they will be eligible for this program as long as they earn a Canadian educational credential from an eligible institution.

According to this definition, arguably an individual could qualify for the PGWP through an overseas exchange course (if credits are earned in Canada), but taking a program of study domestically in Canada (where credits are similarly earned in Canada) would disqualify them.

This sort of defies logic.

How have Canadian Courts handled Distance Learning?

The simple answer is the Courts have not yet had to dealt with this issue directly.

In Dehar v. Canada (Minister of Citizenship and
Immigration) 2007 FC 558, the applicant argued that the Officer’s position, that distance-learning was not considered to be attending a full-time, regular courses for the purposes of including the daughter as a dependent child, was unreasonable. Justice de Montigny ultimately did not address this issue, finding that the Officer’s use of an affidavit to change his initial written decision was unreasonable. However, the judicial review was dismissed on other grounds.

In Muhandiramge v. Canada (Minister of Citizenship and
Immigration) 2009 FC 752, Justice Russell cited CIC’s old policy on Federal Skilled Worker credential assessment (which has now changed under Express Entry), which gave credit to distance learning courses.

These were the only two relevant case law references I could find.

Following the United States Model?

It appears Canada is not alone in its unclear laws and regulations surrounding distance learning. A Google search turned up several inquiries by individual with working holiday visas in Australia wondering if distance learning was permitted.

Arguably in Canada, where it is clear distance learning without a Canadian component greater than six months, is permitted, shows that we may be a step ahead of our Aussie compatriots.

However, south of the border in the United States, Distance Learning has been better defined by lawmakers.

Under the new U.S. Code of Federal Regulation: [8 CFR § 214.2 (f)(6)(i)(G)]), the following rules apply to nonimmigrant international students (Disclaimer: I am not a U.S. immigration lawyer, this is only my understanding based on independent research) (my emphasis added):

(G) For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.

I think this above definition is a mass improvement on the Canadian definition. It clarifies that a course that has some physical attendance requirements including examinations that are integral to the courses may be considered regular courses and not distance learning courses. It also provides a more specific definition of distance learning and by that definition, appears to exclude field studies or experiential-based learning from falling under ‘distance learning’.

A second arguable benefit of a definition like this is the immigration regulations can clarify when study permits are CLEARLY required. For example, it seems unreasonable to me that a school in Canada could skirt around the study permit rules by offering only distance courses. As mentioned earlier, such a program could also be very deceiving to international students who think they have a path to permanent residency.

Where to go from here?

Under the new Study Permit rules in effect since May 2014, CIC and the DLIs have established a line of communication. We know they are talking about key issues such as sick leaves and suspensions.

Distance Learning should be on top of the next CIC stakeholder meeting agenda list.

AND… It’s Coming: Immigration Minister’s Broad ‘Authority for Negative Discretion’

Introduction

In an earlier blog post on Electronic Travel Authorizations (eTAs), I  wrote about my “theory” that Negative Discretion declarations under section 22.1 of Immigration and Refugee Protection Act (IRPA) would increase.

To recap, IRPA allows the Minister’s on his own initiative to declare that that a foreign national may not become a temporary resident for a period of up to three years if justified by public policy considerations.

I mentioned that this provisions is quite young and so far there have been no Federal Court case law on the topic that I can point to interpreting what those public policy considerations are.

It turns out that there are more, recent instructions that Citizenship and Immigration Canada (“CIC”) have put out on this particular IPRA provision.

Analysis of the New CIC Guidelines

In an online update last modified 17 July 2015, CIC has issued Guidelines for the Negative Discretion Authority that lay out what specifically is being targeted by this provision.

They are accessible here.

I have added emphasis below.

Promoting Terrorism, Violence, or Criminal Activity:

  • A foreign national who makes public statements or uses any means to broadcast, write, produce, publish or distribute material, including a website and public speaking, to express views which:
    1. promote or glorify terrorist violence;
    2. promote or glorify a listed entity under Regulations Establishing a List of Entities pursuant to the Criminal Code of Canada, Regulations Implementing the United Nations Resolutions on the Suppression of Terrorism or the United Nations Al-Qaida and Taliban Regulations;
    3. counsel, encourage or incite others to commit terrorist activity or terrorist violence;
    4. incite hatred that is likely to lead to violence against a specific group;
    5. promote, counsel, encourage or incite serious criminal activity.

This section is very #C51-esque with some language that mirrors very closely the Criminal Code amendments under that Bill.

What is interesting is that the wording of this possible group that Negative Discretion can be issued against is very broad. I can easily see bloggers and scholars, who express more extreme political views, to be potentially caught under this provision.  The already common-practice of “googling” or “researching” individual applicants (both through the Temporary Resident Visa and eTA process) will likely increase from Canada Border Service Agency’s (CBSA’s) side.

The “promotion and glorification” wording also seems highly problematic, especially in combination with no apparent standard of proof required for this negative discretion to be issued. Does sharing an ISIS video on a private blog count as promotion and glorification? Does writing a pro-Russian, anti-Ukrainian independence piece meet the requirement? Who is to be the judge of the ‘academic’ elements in the piece in the case it is scholarly work or the work of a journalist?

It is very possible under this provision, we could be preventing a journalist like a foreign national equivalent of Mohamed Fahmy from coming to Canada.

On a different note, I query whether this provision could also be used to keep individuals such as Daryush Valizadeh, a.k.a. Roosh V out of Canada. Arguably, point 4 is triggered by a pick up artist who encourages the rape of women.

 

Foreign Nationals from Sanctioned Countries or Corrupt Foreign Officials:

  • A foreign national of a country against which Canada has imposed sanctions under the United Nations Act or the Special Economic Measures Act, where that foreign national is:

    1. a former or current senior official of the government of that country, or of any entity owned or controlled by, or acting on behalf of the government; or
    2. an associate or a relative of an official or person set out in paragraph (a).
  • A foreign national who is a politically exposed foreign person listed in regulations to the Freezing Assets of Corrupt Foreign Officials Act.

This section is in my analysis equally broad.

The countries that are covered under the first subsection (UN Act or Special Economic Measures Act) include the following:

Canada has imposed sanctions and/or related measures against the following countries:

You will note that these are among the countries that already have significantly lower TRV success rates.

Also, you will note in particular the Guidelines cover off associates and relatives in addition to the current or former official. It is interesting to note that relatives is not defined. Being a second cousin twice removed may be enough to catch you under the breadth of this section.

I think that the second bullet point of the Foreign Nationals from Sanctioned Countries or Corrupt Foreign Officials provision also will attract attention to individuals from country such as China.

This provision refers to the Freezing Assets of Corrupt Foreign Officials Act (FACFO Act), which itself is extremely far-reaching in its application. Section 2 of the FACFOA Act defines politically exposed foreign person as (emphasis added):

 

“politically exposed foreign person”

« étranger politiquement vulnérable »

“politically exposed foreign person” means a person who holds or has held one of the following offices or positions in or on behalf of a foreign state and includes any person who, for personal or business reasons, is or was closely associated with such a person, including a family member:

  • (a) head of state or head of government;

  • (b) member of the executive council of government or member of a legislature;

  • (c) deputy minister or equivalent rank;

  • (d) ambassador or attaché or counsellor of an ambassador;

  • (e) military officer with a rank of general or above;

  • (f) president of a state-owned company or a state-owned bank;

  • (g) head of a government agency;

  • (h) judge;

  • (i) leader or president of a political party represented in a legislature; or

  • (j) holder of any prescribed office or position.

In the case of China, you will possibly Negative Discretion declarations made under Subsection (f), particularly as we are seeing with the rise of fraud cases arising from the leadership changes and rule of law reforms in China. Parent of astronaut families should be careful moving forward with their business and political dealings (even those holding 10-year multiple entry visas).

Mitigating Risks to Public Health:

A foreign national who may introduce, contribute, or pose a risk to public health in Canada. This could include a foreign national who has been in a country with an unusual or unexpected and serious communicable disease with the potential for international spread and significant impact on the health of the Canadian population.

This provision is very interesting. Previously these types of situations were subject to Operational Bulletins, but it looks like the authority to prevent an individual from a country with major health/disease concerns is also widened by these instructions.

 

Where I See This All Going

Without being overly predictive of the results of the next election, should the Conservatives regain power and in line with the other reforms that are occuring, the use of the Citizenship and Immigration Minister’s ‘Authority for Negative Discretion’ will increase drastically.

This provision, against affects both Temporary Resident Visa applicants and eTA applicants. In fact, even holding a TRV or eTA may not exempt an individual from Entry requirements. I am aware that the CBSA is in the process of training Aircraft Carrier companies to provide information which will allow CBSA to trigger a last minute review of a possible Authority for Negative Discretion.

Information sharing is at the heart of this Government and this current Immigration Regime’s direction. It is too early to see how a provision like this would withstand some of our Charter rights, particularly Section 2 which applies to everyone (including temporary residents in Canada).

Which brings up a hypothetical question to conclude on: If I were a Muslim scholar studying religious independence with a family in Canada and no permanent resident status, would I think twice about writing a blog or giving a speech about my area of research?

I would.

I don’t think I should. But I would.

I think this, as a policy, is ultimately too broad to enforce. There is too much of a gap between the wording of an s.22.1(1) Negative Discretion Authority declaration and the proposed policy implementation.

Ultimately, I believe the laws will have to be re-written by the government to provide for more specifications as to when the provision can be applied, particularly as its effect is essentially the same of many exclusion orders and inadmissibility findings under IRPA.

 

OPINION: Why Immigration is My Canadian Election Issue – Changing Our Attitude and Communication

Like many of my Canadian friends heading into the end of the summer, I am what the pundits would call an ‘undecided voter.’ Speaking very frankly, none of the three catch-all parties, have to this date won my votes on their policy positions.

For me, like many of my first and second-class Canadian friends, the policy issues that truly matter to me this 42nd Canadian election, are a product of the experiences in this country; for me, a country I know I have the unique privilege of having been born in. The environment, jobs, health, security are all issues that I am keenly aware concern several of my compatriots. Yet, fortunately, I have not run into any of these challenges on a personal level.

For me, it is the single policy issue of Canadian immigration that keeps me up at night. I say this not only because I spend 12 hours a day at work worrying about immigration for my clients, but also because I spend 24 hours worrying about this issue for the security of my family and my future children, who will have an immigrant parent.

Both Raj Sharma and Mario Bellissimo, in respective pieces here and here, have expertly laid out issues and views I strongly side with, in terms of the direction of Canadian immigration policy on both family and economic fronts.

Both cite family reunification as something that needs to be given more value and viewed as a greater economic opportunity. I completely concur. There is also clearly the need for more humanitarianism in our system. I applaud the current Harper government’s decision to open the door to more Syrian refugees, but I think regardless of the pending election, Canada must do more for refugees both domestically and abroad and act faster in responding to global humanitarian crises. Canada also needs to send clearer messages to foreign caregivers who bring invaluable services to Canadian families while carving out their new lives in Canada that they are an asset and not a liability.

However, I think what I want and many Canadians want from the next government is not a specific policy change. Increasing a quota from 5,000 to 8,000 will never full capture the demand that exists for our beautiful country. It is inevitable that people will be left on the outside looking in.

I think what we want is a general attitude change by our policymakers to better communicate with an issue that often trumps several other policy concerns that newcomers to Canada have.

A Little Parable – At the Chinese Visa Office

Many months back, I was applying for a visa to go to China to visit my girlfriend. Due to the unclear Chinese-translated wording on the forms and the uniqueness of my situation I’ll admit I made a bit of a mess of the forms. As I went to the front desk, confusingly pointing at what category I should be applying under, the friendly individual at the front desk kindly guided me through each question and told me to fix and sign next to my corrected answers. My final application form looked like the first draft of an immigration form I help my clients edit. After one last check I was told to come back Thursday to pick up my visa. Sure enough when I came in a week the visa was approved.

It is quite easy to say China is not a comparable and that with that many people seeking entry there is no way to process everybody’s application as thoroughly as we do in Canada. However, I want to drive home the point that if the world’s most populous nation can station helpful humans across the world to personally assist with immigration challenges, surely can we do more. Surely we realize how a functioning visa system can reflect on a nation’s attitude as a whole. It is for many the first point of contact for Canada. It is not good for system integrity or our nation’s reptuation, when applicants need to rely on change.com social media campaigns to have their mother’s attend their wedding.

Furthermore, refusals themselves are a major burden on the system. While some will follow the literal message of the refusal letters and “apply again when they qualify,” many will try to judicially review or appeal decisions, make expensive Access to Information and Privacy requests, flood the call centre, and write letters to MPs. I once had a colleague who once told me the cost per hour of conducting an ATIP request could pay several government workers. I am not sure if there’s a more up-to-date report on this issue, but we know that the issue is at least 15 years old.

A report on Canada’s visa system commissioned in 2013 made several recommendations in March 2014 including providing standardized letters of invitation and complete reasons for refusal to failed applicants. Neither of these recommendations have been acted on. Other suggestions such as providing short-term emergency visas secured by bonds have also not been acted on. The Government’s own Open Source figures, which do not include returned application, show a huge discrepancy against applicant’s from Middle Eastern, South Asian, and African countries. Yet little has been done to try and address these clear communication barriers between Applicant and Government.

The problem of communication extends beyond Canada’s visitor visa regime and is a microcosm of a larger communication challenge. The Express Entry system, in place since January 2014, replaces officer communication with mathematical algorithms that attempt to cookie cutter applicant lives without taking into account the necessary discretion provided by the laws themselves. In the Temporary Foreign Worker context, communication still occurs largely by unverified fax. Answers to seemingly two-second administrative issues take months and months of attempted communication and legal action to resolve. These all add up to costs and could all be saved by more human (or effective digital) communication.

Ultimately, had I applied for my Chinese visa under a system as uptight and rigid as the current Canadian system, I would have not been able to see my girlfriend. It would be unclear if that future family I dream about every night would even be able to materialize given it was my only permissible vacation in 9 months.

Better Communication and More Transparency

I think Canadians deserve to know the why of our immigration system. The why usually only comes out in a short paragraph in the Canada Gazettes that most of the time leaves those of us who study these laws closely quite unsatisfied. Canadians deserve to know why certain amount of parents and spouses approved every year. Canadians deserve to know why their family members cannot attend their weddings and funerals. Canadians deserve to know at the very least what the program requirements are of each program without having to rely on a user experience forum or a high-priced lawyer to figure out basic program eligibility questions.

What party can come out and say they will invest in immigrants and invest in increasing communication and transparency. My election vote will go to that party.

Canada’s New Electronic Travel Authorization Regime: 5 Things You May Not Have Known

Because the actual requirement to hold an Electronic Travel Authorization (eTA) does not kick in until March 2016, the regime has been understudied and largely unreported outside of the immigration legal community.

On the surface, the new eTA requirement conceptually seems quite simple. Up to now, those exempt from the temporary resident visa requirement process did not undergo any prior screening or vetting. Decisions were made solely at the port of entry and concurrently Canada’s border/immigration system was susceptible to allowing in visitors, who had not made prior applications to Citizenship and Immigration Canada (CIC) and who are ultimately inadmissible, into Canada.

Importantly, Canada made some commitments in the Canada–U.S. Beyond the Border Action Plan several years ago where they pledged to introduce an eTA regime. They were bound by those commitments to introduce the regime.

I want to highlight in this piece, five things you might not know about the eTA regime.  

By the way, I will not go through a comprehensive review of the regime. For those who want to read more about the policy changes in general, check out CIC’s Program Delivery Update for August 1, 2015 and the text of new Immigration and Refugee Protection Regulations (IRPR) via the Part 2 – Gazette in April of this year. Check out also my colleague Steve Meurren’s post for a summary of the new regime.


#1 – The eTA now allows for visa-exempt visitors to Canada to be issued removal orders from outside Canada.  Until that removal order is enforced, the visitor will not get an eTA and not be allowed to come to Canada.

This authority is created by  by subsection 240(2) of IRPR which states (emphasis added):

 (1) A removal order against a foreign national, whether it is enforced by voluntary compliance or by the Minister, is enforced when the foreign national

. . . .

When removal order is enforced by officer outside Canada

(2) If a foreign national against whom a removal order has not been enforced is applying outside Canada for a visa, an authorization to return to Canada or an electronic travel authorization, an officer shall enforce the order if, following an examination, the foreign national establishes that

(a) they are the person described in the order;

(b) they have been lawfully admitted to the country in which they are physically present at the time that the application is made; and

(c) they are not inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

And until that removal order is enforced (i.e. they meet the above requirements), s.25.2 of IRPR applies:

Electronic travel authorization not to be issued

25.2 An electronic travel authorization shall not be issued to a foreign national who is subject to an unenforced removal order.

#2 Cancelling an eTA (at least from a legal perspective) is not as easy as CIC makes it seem (from a policy perspective).

The intersection between policy and law always play an interesting role in Canadian immigration law. As the Federal Courts have made clear on several occasions, online instruction guides, processing manuals, operational bulletins (which now can be extended to include program delivery updates) do not constitute law.

Often times CIC will provide instructions that summarize the law without providing its full details or make recommendations that aren’t legal policy (e.g. when they tell applicants they should apply for extensions 30 days before expiry for several programs, when often times doing may hurt their implied status).

CIC writes on their webpage regarding eTAs:

For how long is an eTA valid?

Section 12.05 of the Immigration and Refugee Protection Regulations indicates that an eTA is valid for five years or until the applicant’s passport expires, whichever occurs sooner.

Section 12.06 of the Regulations indicates that an eTA can be cancelled by a designated officer. Once cancelled, an eTA is no longer valid.

While this statement is not incorrect per-se- it omits a few important details.

Cancellation

12.06 An officer may cancel an electronic travel authorization that was issued to a foreign national if

  • (a) the officer determines that the foreign national is inadmissible; or

  • (b) the foreign national is the subject of a declaration made under subsection 22.1(1) of the Act.

Subsection 22,.1(1) of the Act (Immigration and Refugee Protection Act) is an interesting one.

This section allows the Minister, on his or her own initiative, to declare that a foreign national cannot be come a temporary resident for a period of three years, justified by “public policy considerations.” The underlying provisions has been in force since August 2013 but it appears no Federal Court jurisprudence (at least none that I could find) talk about this provision. To me it is a very discretionary provisions.

Could we see an increase of cancellations of eTAs on s.22.1(1) IRPA grounds where inadmissibility has not yet been made out but there is some concern about the individual’s background? I certainly think so.

 

#3 – Adverse Information on your immigration file may mean your eTAs might take a while.

CIC has made available by way its most recent program delivery update, updated instructions for how to assess adverse information on file for an eTA applicant.

CIC writes (emphasis in original and added):

If the applicant previously applied for entry to Canada (either through a CIC program or through the CBSA at the port of entry), or if they are already known to CIC (through intelligence, for example), and if there is adverse information on file for the applicant, it will be uncovered through the automated eTA screening process, which will cause the application to be referred for manual review.

Officers should consider:

  • Did the adverse information result in a previous refusal?
    • If so:
      • What is the full story behind the refusal? Look at the case notes to fully understand the reason for the previous refusal. It is not sufficient to only look at the refusal ground(s).
      • Was the applicant previously refused because they did not meet the specific needs of the category to which they were applying? For example, if they were refused a work permit because they did not provide a labour market impact assessment, would this impact their eligibility to come to Canada as a visitor?
      • Have their circumstances changed since the refusal? Is this still a concern?
      • Has the applicant received an approval between the time of their eTA application and the adverse information on file? Note that the automated eTA screening process will not take this into account when determining if a case should be referred for manual review.
    • If not:
      • What type of adverse information is on file?
      • How long ago was it entered?
      • Has the applicant received an approval between the time of their eTA application and the adverse information on file? Note that the automated eTA screening process will not take this into account when determining if a case should be referred for manual review.

An officer must be satisfied that an applicant is not inadmissible to Canada under A34 to 40 prior to issuing an eTA. Officers initiate and conduct admissibility activities as needed. This may include screening requests to partners, criminal record checks, info sharing, medical exams and misrepresentation activities.

I find CIC’s example of applying for a work permit without an LMIA kind of curious, as not meeting program requirements does not directly lead to an inadmissibility. However, it appears to suggest that for these type of cases, a procedural fairness letter may be sent to eTA applicants asking them to “explain the circumstances”, with the ultimate fear being that an applicant is attempting to enter Canada to work without authorization.

What this all means, is an Applicant needs to be very careful with misrepresentation (a topic I have written about quite extensively, so see previous posts!).

 

#4 Permanent Resident Problems are Coming 

Strategically for a permanent resident, there may have been reasons in the past to enter Canada on a separate passport or travel document (particularly if their permanent resident card had expired or was lost and/or they no longer met the residency requirement).

eTAs effectively end that practice and create an added barrier – the e-relinquishment process.

CIC writes in their website section titled “Manual processing Electronic Travel Authorization (eTA) applications“) (emphasis added):

Officers should consider:

  • Based on case history, is the applicant indeed a permanent resident?
  • Based on case history, has the applicant renounced their permanent resident status? Often, even though a person has renounced their status, their GCMS profile still shows them as a permanent resident.

Procedure

Level 1 decision-makers at the OSC will query for these applications by performing a search in “IMM activities, Auto Searches.” The “Activity” will be “Derogatory information,” the “Sub-activity” will be “Client Derogatory Information,” and the “Status” will be “Review Required.”

If the applicant is a permanent resident and has not already gone through the formal process of relinquishing their status, they should be contacted to determine whether they would like to voluntarily relinquish their status

  • If the applicant does not wish to relinquish:

    • The officer must withdraw the application
    • Advise the applicant that they will need to get an appropriate travel document that demonstrates that they are a permanent resident, which may necessitate a determination of their status (PDF, 665.91 KB)
  • If the applicant would like to relinquish:

Again, expect this new eTA to increase the number of residency determinations and will likely trickle through to more appeals at the Immigration Appeal Division.

 

#5 Interactive Advance Passenger Information (IAPI) and Carrier Messenger Requirements (CMR) make Airline Staff the Front-Line Messengers for the new eTA program

An Applicant holds a valid eTA and is now booking a plane ticket. Now what?

There is a whole process that runs in the backdrop between commercial Airline Carriers and Canada Border Services Agency to inform them of who is on the plane that will be arriving in Canada. A lot of the front end information sharing will essentially begin with you entering your name into a flight reservation system to buy tickets all the way until you arrive in Canada. This includes any questions or document requirements asked of you by Airline staff.

I have written a bit about this in a previous post. I have signed up for the webinars offered by CBSA to try and understand this process better (from the Airlines side). Hope to update everybody soon.

 

Overall Takeaway

I think a perfect conclusion is to quote Canadian  immigration lawyer, Liz Wozniak on the new eTA regime – it’s like “Visas for the visa-exempt”:

Ultimately, there is no reason to wait to file your eTA application. As the requirement deadline comes in. If you expect to come to Canada as a potentially, visa-exempt visitor by March 2015, it would be a very good idea to start applying for an eTA now.

It may also be a good idea to get notes on your file first, so you at least have a good idea of what might come down the pipeline for an eTA application.

Hope this post was somewhat enlightening.

The Federal Court in Huang Challenges the Spousal Interview Process

I found Justice Boswell’s judgment in Huang v. Canada (Citizenship and Immigration) 2015 FC 905 to be a very fascinating read.

The background facts in Huang are not presented very extensively, as the decision turned mostly on procedural fairness. Ms. Huang was a 63-year old citizen of China who was being sponsored by her Canadian husband. This application came after a 2012 sponsorship via her daughter was refused regarding concerns about the biological relationship and misrepresentation.  They submitted their application through Hong Kong.

The interview led the Officer to find that the relationship did not “share a level of financial and emotional interdependence expected of a genuinely married couple. The Officer was also “not satisfied that this is not a bad faith marriage entered into primarily for immigration purposes.”

Interesting aspect #1 – Federal Court Affidavits Containing New Information

As it is well established in jurisprudence, affidavits filed in support of Federal Court proceedings cannot contain new evidence that was not in front of the officer/tribunal who rendered the initial decision on review.

Counsel Richard Wazana brought forward an argument through the Federal Court of Appeal’s decision in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22 at para 20 that the new evidence should be admitted. Justice Boswell, concurred on this point in part, writing at paragraph 5 of his decision:

However, since the Applicant has alleged various procedural defects not apparent on the face of the record (Association of Universities at paragraph 20), some of this additional evidence adduced by the Applicant may be considered by the Court in reviewing the procedure by which the decision was rendered.

I have similarly used this argument in a Federal Court case (pending in decision) although we did not expand on it as much as we probably could of. The Association of University Colleges case has not been cited as much as I think it should and it can prove a good counterbalance to selective “recording” of GCMS notes that can often occur and needs to be disputed with affidavit evidence.

Interesting aspect #2- opportunity to meaningfully address Officer’s concerns.

I am sure many of you have seen the classic game show “The Newlywed Game” where newly-married couples are asked a set of similar questions which often reveal contrasting and contradictory answers.

While on the TV show this is a source of laughter and entertainment, in real life this is a major source of application refusals and arguably the very premise of the Immigration Appeal Division (IAD) Spousal Appeal witness testimony process. Differing answers, unsatisfactory answers, culturally unappealing answers can all lead to refusal or negative factors against the genuineness of the relationship.

I applaud Justice Boswell for being very open about his criticism of the current process in his reasoning.

I want to take out a series of interesting quotes from the judgment, as to rewrite them would not do his decision justice. I have also run into almost every single one of these issues in my spousal/judicial review work thus far. Emphasis has been added at several locations.

[7]               In the GCMS notes, the Officer listed numerous concerns, notably as to: the inconsistencies or discrepancies in the Applicant’s and her husband’s answers; the Applicant apparently receiving social assistance for housing; her frequent travel to Windsor to visit her daughter and grandchildren; the Applicant seeming to know very little about her husband’s private or personal life (e.g. his hobbies); her previous permanent residence application being refused due to non-compliance and misrepresentation, something which the Officer stated undermines the credibility of the relationship”; her husband’s economic plans and wanting someone to take care of him, which prompted the Officer to write that it seems that sponsor’s relationship to applicant is more like a caregiver; and, lastly, not being satisfied that the stated genesis and development of the relationship demonstrated they were in a genuine relationship.

[8]               I agree with the Applicant that it was procedurally unfair for the Officer not to apprise her of some of these concerns as they arose and not to offer her a meaningful opportunity to address such concerns.

[9]               Furthermore, I disagree with the Respondent that the duty of procedural fairness was satisfied in this case merely by granting the Applicant an interview and did not require the Officer to tell the Applicant whenever her story diverged from that of her sponsor. The Officer’s concerns in this case were not related to the sufficiency of the evidence but, rather, to the credibility of the Applicant herself and the genuineness of the marriage. The Officer here should have provided the Applicant with a meaningful opportunity to respond to the concerns in this regard.

A little later on Justice Boswell writes…

[15]           In my view, maintaining an arcane exception for spousal interviews is unwarranted in cases where an applicant’s credibility is an issue. There is nothing particularly unique about spousal interviews which would warrant such special treatment. Although applicants may present their spouses as witnesses to the genuineness of their marriage, this does not mean they should be presumed to know exactly how their spouses will respond to every question.

…….

[17]           A duty to confront the spouses with any inconsistencies would also not be unduly onerous. It would usually just add a few extra minutes to the end of an interview. This is something which appears to be not unusual (see e.g. Singh v Canada (Citizenship and Immigration), 2012 FC 23 at paragraph 7, 403 FTR 271; Rahman v Canada (Citizenship and Immigration), 2013 FC 877 at paragraphs 8 and 10; Ossete Ngouabi v Canada (Citizenship and Immigration), 2013 FC 1269 at paragraph 9; Lin v Canada (Citizenship and Immigration), 2015 FC 53 at paragraphs 9 and 31).

Why I believe this case has the potential to be VERY important

This case is important because it represents a real challenge of the status-quo of the interview process. Applicants and Sponsors are often put in a lose-lose situation with these interviews. Prepare too much, and sound scripted and not genuine. Prepare not enough, or just be a normal forgetful person, and be found to have differing answers and not genuine.

Furthermore, Citizenship and Immigration Canada in their OP 2 – Processing Members of the Family Class Guide has specifically removed the guidelines/instructions of determining genuineness of the relationship in order to protect system integrity.

Our only real sense of genuineness is (asides from previous case law) has unfortunately come from the controversy surrounding the CIC training manual applying very cultural and economically insensitive characteristics, an issue that I previously covered.

On that note I often find the use of the caregiver ground of refusal  (found in Huang as well) very frustrating and insensitive. Cases where there is discrepancy in the financial earnings, career aspirations, and mental/educational capacity of Applicants and Spouses are often chalked as “caregiver” rather than genuine relationships. The cases of this I seen have most often involved spouses from Mainland China. I equate it to an officer questioning “why the hell would you ever marry that person?” It can be quite hurtful.

Overall, what I think Justice Boswell is saying, is that this process needs to be fixed up. Offering an interview and trying to play “good cop/bad cop” to elicit different answers on very minute details in order to undermine credibility requires more procedural fairness.

It is a great decision that I hope visa officers begin applying. My perspective has always been – you never punish 99% of legitimate Canadian couples to try and get at the 1%. In truth, it is the 1% that probably has every single detail memorized and shared to a T.

Media Must Be Cautious Covering Individual Immigration Cases

This article has been reposted from my New Canadian Media piece: http://newcanadianmedia.ca/item/29342-media-must-be-cautious-covering-individual-immigration-cases

The media has recently served as a powerful platform for immigrants seeking to appeal negative decisions, such as deportation orders and permanent residency denials.

This year alone, a star American CFL football player used the media to obtain his Canadian permanent residence, a family was able to keep its deaf child in Canada, and a Nigerian family was able to remain in Canada with their American-born son.

It’s part of a growing trend that has seen immigration issues receive much better coverage in the Canadian media from articles discussing Bill C-24 to stories about immigrant applicants’ trials and tribulations.

Interestingly, the way recent reporting on individual immigrant stories has occurred contrasts greatly with coverage of other legal issues, such as major crime. Rather than prematurely vilify and convict, the media has been quick to defend many immigrants, and to criticize the Canadian government for its poor policymaking.

Ironically, this has injected the presumption of innocence into an immigration system where such a concept did not previously exist. In my view, this has helped to level the playing field for applicants and to bring awareness to the challenges of our immigration system.

However, several recent stories have also highlighted the worrying trend of the mainstream media being overused or improperly used to deliver specific, individualized Canadian immigration results.

Emotion alone should not guide decision-making

It may seem hypocritical for an immigration lawyer and freelance journalist to be writing this piece. Like some journalists, I, too, have taken off my lawyer hat and criticized the government for producing certain immigration results, sometimes prematurely.

The recent case of the U.K. man who was allegedly excluded from Canada for helping his girlfriend renovate her house is a great example. It was carried by two major British newspapers not necessarily known for balanced perspectives or understanding of Canadian immigration law issues.

I know I commented angrily based on my own experiences with clients with border issues, but admittedly both stories were short on the relevant facts needed to assess whether it was the correct decision by the border officers.

An immigration system cannot be based solely on who can present the most emotionally compelling case.

I find that an increasing number of stories that I read tread dangerously close to appeals to emotion, where incomplete facts are presented and an ideal outcome is then suggested.

Perhaps even more troubling is the fact immigration officials are responding to these cases, seemingly only as a public relations effort, but not in accordance with their own laws and policies. As a result, I have seen clients in similar situations left scratching their heads, contemplating their own media campaigns.

An immigration system cannot be based solely on who can present the most emotionally compelling case. Successful applicants should be asked to meet a baseline of legally clear requirements.

Some individuals have stories of hardship, but will have no immigration options. There are also Canadian immigration programs that specifically consider applicants’ hardship. This balance is necessary. Anything else would inject too much officer discretion and encourage too much exaggeration from applicants, both of which are deeply harmful to system integrity.

Media coverage also raises an underlying ethical dilemma (we can call this the “Conrad Black example”) – should we be giving preference in our system to high-profile immigrants?

Inaccurate reporting can dramatically impact applicants’ lives

Don’t get me wrong. Some journalists write on immigration issues carefully. The best present the facts of immigrants’ cases diligently, outline their basic legal issues clearly and ensure that both the immigrants’ and the government’s sides of the story are presented properly. They encourage dialogue and protect privacy and anonymity when appropriate.

However, I have also read several stories in the media recently where it was apparent that outside input and assistance was not sought prior to publishing.

It is vital that journalists seek some outside assistance when publishing pieces because their articles, while generally of limited evidential value in courts of law, can be relied upon as documentary evidence in immigration applications and appeals.

I would suggest that the recent case of the American-born child to Nigerian parents is an example of this. I do not want to comment on its substantive merits, given the case is still in progress. However, I found that some of the articles failed to adequately present the law and policy in the area, which although quite harsh in its consequences, is more clear in its application.

It is vital that journalists seek some outside assistance when publishing pieces because their articles, while generally of limited evidential value in courts of law, can be relied upon as documentary evidence in immigration applications and appeals.

The information contained in these reports can also serve as outside evidence considered by immigration officers who verify applicants’ information themselves.

Factual inaccuracies or ill-advised quotes in these articles could affect future immigration. Meanwhile, if too much personal information is revealed in these news stories, some immigrants’ abilities to obtain jobs or travel safely to their home countries may be compromised.

The media’s role moving forward

Rather than acting as a mouthpiece for individual applicants on an ad hoc basis, the media could speak up with a loud and clear voice when a high-level of wrongdoing occurs – either to individuals or groups.

I think the best case for media importance is the Lucia Vargas Jimenez suicide in 2013, which began the present day scrutiny of our immigration detention system and the push to end the practice of transit police reporting immigrants to Canada Border Services Agency (CBSA) simply for fare violations.

On the contrary, it is interesting to note that in the Jimenez case, CBSA’s internal response was muted due to fear of a media explosion over the issue. From the government perspective, more balanced media coverage may encourage proactive disclosure of negative news.

I believe the media can, and does, play a key role in uncovering and highlighting institutional challenges.

The media can also play an important role in probing key immigration stakeholders. By presenting more stories about the work of immigration settlement services, pro bono legal clinics and others serving immigrants, the media can help fund those resources.

Finally, the media is a key catalyst for access to justice. The fact that individuals have been increasingly willing to go to the media with their stories before engaging legal counsel and resolving issues with government officials highlights the inaccessibility of our immigration system. I believe the media can, and does, play a key role in uncovering and highlighting these institutional challenges.

Overall, the rise of media coverage that informs Canadians of, and holds government officials accountable on, immigration policy is a good thing for our democracy. What the public must do next is ensure the media is used to advance the integrity of the immigration system as a whole, rather than for just a few individuals.


Will Tao is a Canadian immigration lawyer and freelance journalist based out of Vancouver, B.C. He is the co-founder and lead-author of the Canadian immigration blog, Vancouverimmigrationblog.com.

This article was written with assistance from Abigail Cheung. Passionate about immigration since her undergraduate studies in Ethnicity, Race and Migration at Yale University, Cheung will enter her final year at Osgoode Hall Law School this fall.

 

Can I Lose My Open Work Permit If My In-Canada Spousal Is Refused?

As a relatively new (December 2014) immigration program, the One Year Pilot Project which provides an Open-Work Permit to In-Canada Spousal Sponsorship/Common-Law Applicants raises many interesting factual scenarios – particularly in relation to refused applications.

Under this pilot project, prior to first-stage approval, Applicants who currently are in-status and in Canada are given open work permits allowing them to work anywhere in Canada while their spousal/common-law applications are in processing. I was asked an interesting scenario, one that was brought up by the folks in the Canada Spousal Sponsorship Practitioners Facebook Group.

What if an in-Canada Spousal Application is refused? Can the individual continue to hold and work on their Open-Work Permit.

The relevant Immigration and Refugee Protection Act (“IRPA”)provision states as follows, regarding the circumstances in which temporary status (i.e visitor, student,  worker) may be lost (emphasis added):

Temporary resident

 A foreign national loses temporary resident status

  • (a) at the end of the period for which they are authorized to remain in Canada;

  • (b) on a determination by an officer or the Immigration Division that they have failed to comply with any other requirement of this Act; or

  • (c) on cancellation of their temporary resident permit.

Applying Section 47 of IRPA, there are currently no grounds to require a foreign national holding a open spousal work permit to leave Canada because the Spousal/Common-Law Sponsorship application has been refused.

When does the authorized period to remain in Canada end?

Section 183(4) of IRPA states (emphasis added):

  • Authorized period ends

    (4) The period authorized for a temporary resident’s stay ends on the earliest of

    • (a) the day on which the temporary resident leaves Canada without obtaining prior authorization to re-enter Canada;

    • (b) the day on which their permit becomes invalid, in the case of a temporary resident who has been issued either a work permit or a study permit;

    • (b.1) the day on which the second of their permits becomes invalid, in the case of a temporary resident who has been issued a work permit and a study permit;

    • (c) the day on which any temporary resident permit issued to the temporary resident is no longer valid under section 63; or

    • (d) the day on which the period authorized under subsection (2) ends, if paragraphs (a) to (c) do not apply.

  • Extension of period authorized for stay

    (5) Subject to subsection (5.1), if a temporary resident has applied for an extension of the period authorized for their stay and a decision is not made on the application by the end of the period authorized for their stay, the period is extended until

    • (a) the day on which a decision is made, if the application is refused; or

    • (b) the end of the new period authorized for their stay, if the application is allowed.

  • Non-application

    (5.1) Subsection (5) does not apply in respect of a foreign national who is the subject of a declaration made under subsection 22.1(1) of the Act.

  • Continuation of status and conditions

    (6) If the period authorized for the stay of a temporary resident is extended by operation of paragraph (5)(a) or extended under paragraph (5)(b), the temporary resident retains their status, subject to any other conditions imposed, during the extended period.

It also important to look at when an authorized stay begins.  The Immigration and Refugee Protection Act states (emphasis added):

Authorized period begins

(3) The period authorized for the stay of a temporary resident begins on

  • (a) if they are authorized to enter and remain in Canada on a temporary basis, the day on which they first enter Canada after they are so authorized;

  • (a.1) if they have become a temporary resident in accordance with subsection 46(1.1) of the Act, the day on which their application to renounce their permanent resident status is approved; and

  • (b) in any other case, the day on which they enter Canada.

On my reading, as long as the Applicant has a valid temporary resident visa allowing them to re-enter Canada, they cannot lose their open work permit simply by leaving Canada. This is not a case of implied status.

Of course, there may be challenges in obtaining a visa, which is another matter for another post. From my reading of the legislation, if you leave Canada during the duration of your Canada

Note, that there are several conditions by which an individual can apply for a visitor visa within Canada and holding a work permit in Canada is one of them. See: http://www.cic.gc.ca/english/visit/cpp-o-apply.asp 

Opportunities Created By an Open Spousal Work Permit

There are several potential opportunities created by a foreign national spouse-applicant who holds an open work permit. There may be several economic options worth pursuing if the required work experience can be obtained.

Also, an Overseas application can be initiated and the ability of the individual to travel back to their home country can facilitate any officer interview conducted overseas.

However, given the current uncertainty with Port of Entry examinations and Officer discretion leaving Canada while holding an Open Spousal Work Permit and a In-Canada Spousal Sponsorship refusal may not be the most desirable choice.

What I Would Do – Issue all Spousal/Common-Law Applicants Open Work Permits

I think Citizenship and Immigration Canada has really shot itself in the foot with making the open work permit option only for In-Canada Spousal Sponsorship applicants. Should this option exist for Overseas applicants as well (who by the way can be in Canada when applying). If there did so there would less of a burden and backlog of the domestic system – currently holding up families for 26 months +.

While well-intentioned, the Open Spousal Work Permit has become an emergency lifeline for Canadian couples with a foreign national spouse/common-law partner. It creates the potential for poorly prepared applications filed to save a relationship. If I were CIC I would encourage more individuals to apply abroad, put more resources abroad to boost those processing times, and encourage more spouses to stay and work in Canada on a dual-intention pending processing of their Sponsorship applications.