Category Archives: Canadian Immigration Law Blog

Dear IRCC: Requesting Uploaded Non-Refundable Plane Tickets for Refused Extension Applications is Not the Way to Go

I apologize folks. I’m in the middle of a transition (starting my own Firm in February – more details about this later). I’ve also engaged an entire revamp of this blog, which will be releasing as well. I’m supposed to be on hiatus. However, something shared by one of my colleagues has had me spring into action. IRCC: this move is wrong, not procedurally fair, and has disasterous consequences for access to justice.

What am I talking about? Check out the screen shot below.

Dear IRCC:

While it is clear the Government has been pushing to make the restoration process more difficult (trying to limit it to only statuses previously held), it behooves procedural fairness that rather than informing applicants of their statutory option to pursue restoration within 90 days they are telling applicants to leave and provide proof that they are leaving.

There is also no transparency on how to challenge a decision like this. What if an individually legitimately was refused due to missing documentation or a technical issue and has a strong argument for restoration? Do they apply for restoration? What happens if they ignore this request to upload proof. Does CBSA show up before they are able to confirm their restoration has been approved? [The fact we are removing individuals during a pandemic is another bone – but I’ll pick it some other time].

I would argue that this has the most immediate and harmful impacts on those who are unrepresented. As counsel, at least I can seek clarification and know how to navigate restoration to immediately submit an application and perhaps inform IRCC. A self-represented applicant, with no public facing knowledge of the process having provided by IRCC, will not know what to do. I fear that for the international students who I’ve seen this sent to, this can lead to harmful decisions. I’ve been in too many cases where international students were afraid to tell their parents, going so far as trying to leave to a third country to avoid letting their major educational funder parents know.

Importantly, this action breaches procedural fairness. Indeed, I think the Government needs to be enjoined from prematurely requesting something and shielding the fact an alternative remedy is not on available but statutorily provided. This type of action utilizes policy to try and shield the protections provided by law and is inconsistent with the rule of law and due process.

I call on the Government to stop issuing these letters to applicants who receive temporary resident extension refusals and in fact all refusal letters. Go back to informing these individuals that they have the ability to apply for restoration within 90 days. Suspend removals, especially now that there are programs being rolled out to help restore those who have lost status and given them an extended time to do so. This type of letter contracts the generosity through policy that has been provided (see: here).

In the interim, we need transparency:

  1. Who is this being sent to?
  2. Is it just for citizens of certain countries?
  3. Why is it not being limited to cases where individuals are truly out of status without access to restoration?
  4. Where are the public instructions on how to respond to something like this?

Sincerely.

Will

We Straight?: Why Risk and Discrimination May Be the Most Important and Understated H&C Factors

To most individuals, even those familiar with immigration, the words ‘risk’ and ‘discrimination’ will likely conjure up immediate thoughts of refugee claims under s. 96 and s.97 of the IRPA. 

Indeed, if one were to follow IRCC’s own instructions on factors to consider in an humanitarian and compassionate assessment, risk and determination are not obvious on the face, as per the online instructions captured below.

Factors to consider in a humanitarian and compassionate assessment

Applicants may base their requests for H&C consideration on any relevant factors including, but not limited to

  • establishment in Canada for in-Canada applications;

  • ties to Canada;

  • the best interests of any children directly affected by the H&C decision;

  • factors in their country of origin including adverse country conditions;

  • health considerations including inability of a country to provide medical treatment;

  • family violence considerations;

  • consequences of the separation of relatives;

  • inability to leave Canada has led to establishment (in the case of applicants in Canada);

  • ability to establish in Canada for overseas applications;

  • any unique or exceptional circumstances that might merit relief.

Certainly, adverse country conditions include discrimination and indeed there is clarification that membership of a group being discriminated against is a s.25(1) IRPA consideration as per this excerpt below.

Assessment of discrimination

In assessing whether an applicant will be affected by discrimination, discrimination can be inferred where an applicant shows that they are a member of a group that is discriminated against. Evidence of discrimination experienced by others who share the applicant’s profile is relevant under subsection 25(1), whether or not the applicant has evidence that they have been personally targeted.

On risk, it was always a word I utilized with some caution in an H&C application. Indeed, IRCC’s instructions provide explicitly that s.96 and s.97(1) IRPA factors are not be considered, but must consider these elements related to hardship.

Limitation on assessment of risk in an in-Canada application

Subsection 25(1.3) of the Immigration and Refugee Protection Act states the following: “… the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin.

Subsection 25(1.3) applies only to H&C applications made in Canada.

Yet, there seems from the instructions nothing ‘extraordinary’ about risk that would make it more deserving of space in submissions and evidence compared to other factors (establishment, ties, best interest of the child, or generally poor country conditions not arising to the level of risk or discrimination).

However, the results of an H&C data request paints a different story about the importance of risk and discrimination.

Thanks to the work of our statistician Joe Ashta and our assessment of data received from IRCC through a data request, we have a different picture of how important risk and discrimination is to the assessment of a successful humanitarian and compassionate grounds application.

Before this request I was even unaware that IRCC classified humanitarian and compassionate grounds applications into several categories, two of which we will discuss are straight H&Cs (without risk or discrimination) and H&Cs with risk and discrimination.

Note on abbreviations: HC: Humanitarian and Compassionate Straight Applications; +RD: with Risk or Discrimination.

How much more successful are H&C Applications with risk and discrimination?

For 2015-2020, HC applications has a 49% approval rate, +RD is 60%.

For 2015-2019, HC applications has a 54% approval rate, +RD is 64%.

For 2020 (Jan – Sep), HC applications have a 28% approval rate, +RD is 37.5%.

These data are aggregated across all countries of citizenship.

How often are risk and discrimination claimed vis-à-vis straight H&Cs?

For every 100 straight HC applications, there are 340 +RD applications. 

What the Stats Tell Practitioners?

It tells us that risk and discrimination are being argued (or at least classified as such by IRCC), perhaps not with direct and assumed knowledge of how important it might be to the outcome.

Applications that are assessed under the risk and discrimination category have been 11% more successful from between January 2015 to September 2020.

I can certainly tell you from many H&C applications that I have reviewed from practitioners, particularly those who do not come from a background of significant work with refugee claims, or appellate work requiring significant legal research, or academia, that submissions regarding risk and discrimination are often lackluster. H&C applications are lacking references to the National Documentation Packages, properly translated and updated news articles (particularly from domestic sources), and as well strong affidavits that clearly tie personal experiences to some of the more generalized conditions spoken to in the evidence.

It also means that failed refugee claimants whose risk of persecution or discrimination might not give rise to a successful claim can still very much utilize the same factual matrix to ground an H&C on hardship. One of the more difficult determinations in immigration law is to determine when to file a refugee claim versus when to file an H&C with the knowledge that a refugee claimant is ineligible to be considered for Permanent Residence on H&C grounds and may also be subject to a one-year bar shortly after their claim final (if not exempt). However, as a future report we are working on and the snippet above shows, 2020 has started what appears to be a downward trend in H&C approvals and an increasing demand for relief.

We are working hard to publish our first Arenous report (will be short, digital, and interactive) in the New Year.

I will likely also put up a post tomorrow (if not in early days of 2021) regarding my New Years plans and some updates.

Thanks folks again for being such a great reading and interacting audience in 2020. May next year be a recovery year (and a growth year!) for us all.

 

Indigenous-based Immigration Initiatives in 2020 – What We Hope To Do More of in 2021

Many new readers and fans of our blog ask why we have an Indigenous logo and make Indigenous issues, decolonization, and indigenizing a huge part of our mandate and our writing.

We believe that immigration, as part of a settler colonialist system, has facilitate the loss of Indigenous lands, the historically correct approach is to try and both return Indigenous sovereignty to immigration decisions and as well build deeper relations between Settlers and Indigenous communities and promote understanding, pay reparations to the harm.

This year, we contributed financially (through the proceeds of an award) to the Urban Native Youth Association. UNYA does incredible work connecting Indigenous mentees with community mentors.

We also wrote on how to indi

WT - Founders Award Paper - FINAL

We made sure with all teaching and lectures to begin with a traditional and territorial acknowledgment but do so in a way that was reflective of historical harm as well as on-going gratitude.

We have joined an Anti-Racism Committee for the Canadian Bar Association National Immigration Section where we are looking to try and recognize how silent we have collectively been on Indigenous-Immigrant issues and Indigenous representation in our profession.

Finally, we supported the Umista Cultural Centre (https://www.umista.ca/) and as well as other local Indigenous artists through purchases and contracts for services.

We recognize this is but a starting point and that we need to substantially engage more in the law. I will be also very honest about a shortcoming. This year I had the chance to engage in a Federal Court matter involving an H&C refusal of an American Indigenous man. It was a file that I was supposed to take on, passed on to me a by previous Firm departure. I felt a bit overwhelmed with my existing case load and didn’t feel prepared enough with time to research and build knowledge. Thankfully a colleague of mine, with significant ties to major community organizations, was able to take it on and coordinate interveners. This case likely will be a significant step into developing important jurisprudence. It’s something I will take as a regret and a promise to do better heading into 2021.

On the topic of the future, I hope with our new non-profit, the Arenous Foundation, that we can invest in Indigenous-community based projects to better explore the relationship between Indigenous communities and Canadian Immigration, supporting Indigenous-based scholarship and activism.

Look forward to collaborating in 2021. Feel free to reach out to see how we can work together!

Arenous Updates: Brief to CIMM on COVID-19 and Presentation to Mosaic on International Students

Folks:

As many of you may know, over the past half year my colleague Edris Arib and I have been putting together a non-profit organization called the Arenous Foundation to fill the gap of advocacy, research, and education in Canadian immigration.

We’ve been doing quite a bit of work this December and are proud to share with you are two project this week.

The first project is our brief to the Standing Committee on Citizenship of Immigration who asked for feedback on (1) spousal sponsorship and TRV delays (specifically s. 179(b) IRPR); (2) the parent and grandparent sponsorship program, and (3) TRVs/SPs for Francophone African students, along with those who hold expired COPRs;

Brief to House of Commons - Dated 11 December 2020 on behalf of Arenous Foundation

On Thursday of this week, we also presented to MOSAIC on international students, including policy recommendations and advice to settlement workers.

It’s been a busy but amazing week being able to re-shift energy from law to non-profit immigration policy work. It’s a perfect balance – and one I hope to expand in January 2020.

On that note, we have some big news for #VIB readers (new site and new initiative) coming in the New Year.

I don’t know about you, but I’m just about done with 2020.

Love,

Will

 

Time to Remedy the Problem of Temporary Resident Permits

co-written w/Yussif Silva, Student Intern, Edelmann and Co. Law Offices

Mel is a stateless Palestinian. She grew up stateless in a country that does not offer her Citizenship and no longer offers her status. She has been on successive TRPs but is looking to apply for economic permanent residence and obtain successive work permits. Mel recognizes she probably needs a TRP but is uncertain of why she needs to make paper-based extension applications and how she eventually should apply for PR.

Prab is an Indian national. She accidentally flew back into the United States from India to re-enter Canada as a student, not realizing she needed a TRV first. She has been on successive TRPs. She has since been on successive TRPs, but is seeking to complete her studies and apply for a post-graduate work permit (“PGWP”). Prab wants to trade-in her TRP and go on her way to the pathway to PR.

Jack is an Armenian national and study permit holder in Canada. He does not have a passport and returning to his country at this time would mean mandatory military conscription. However, the passport issue could be resolved through some negotiation by his family members. He is seeking his first TRP.

Raj is a Pakistani national. He has held TRPs in the past unauthorized studies, but abruptly after years of work permits it was refused. He believes it was refused because another TRP would have enabled him to apply for permanent residence, but he is not sure.

Marcela is a Mexican citizen. She had a semester of non full-time studies while going through a difficult time with mental health challenges, but her university did not offer leave. Her university recommends that she asks for a ‘TRP in the alternative,’ alongside her PGWP but is uncertain what this entails.

 Bahar is an Iranian citizen. She extended her own work permit, but forgot to extend the visitor status of her two children who were studying in Canada. They were able to study, but she was advised to obtain TRPs to address their inadmissibility. She is in the PR process and wondering if her children will face any difficulty in obtaining their permanent residence.

 

TRPs: A Backgrounder

Temporary Residence Permit [TRP] allow for foreign nationals otherwise inadmissible or not meeting a requirement of the Immigration and Refugee Protection Act (“IRPA”) to stay in Canada if it is justified in the circumstances (s. 24(1) of the IRPA).

Justice Norris, in the 2020 case of Williams v. Canada (MCI) 2020 FC 8, lays out the regime perfectly in paragraphs 35-38 of his decision, which I will reproduce below:

(3)  Section 24(1) of the IRPA

[35]  This provision provides for the issuance of a temporary resident permit to someone who is inadmissible or who does not meet the requirements of the Act “if an officer is of the opinion that it is justified in the circumstances.”  Such a permit may be cancelled at any time.  Further, under section 63 of the Immigration and Refugee Protection Regulations, SOR/2002-227, a temporary resident permit is valid until one of the following events occurs:

  • (a) the permit is cancelled under section 24(1) of the Act;
  • (b) the permit holder leaves Canada without obtaining prior authorization to re-enter Canada;
  • (c) the period of validity specified on the permit expires; or
  • (d) a period of three years elapses from the date of validity.

[36]  Operational instructions and guidelines from Immigration, Refugees and Citizenship Canada [IRCC] that were in effect at the time shed additional light on how decisions on applications for TRPs were made when the applicant submitted his request.  (They have since been modified in some respects – for example, by clarifying that the predominant consideration is whether “the individual’s purpose for entering Canada balances Canada’s social, humanitarian and economic commitments to the health and security of Canadians, per the objectives of the IRPA”: see https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/permits/eligibility-assessment.html.)  While such instructions and guidelines are not law and are not binding, they can “offer guidance on the background, purpose, meaning and reasonable interpretation of legislation” (Mousa v Canada (Immigration, Refugees and Citizenship), 2016 FC 1358 at para 11).

[37]  The instructions and guidelines explain that the officer will determine whether “the need for the foreign national to enter or remain in Canada is compelling” and whether “the need for the foreign national’s presence in Canada outweighs any risk to Canadians or Canadian society.”  In evaluating “compelling reasons” versus “risks”, officers “must consider the factors that make the person’s presence in Canada necessary and the intent of the legislation to maintain program integrity and protect public health and safety.”  The officer must be satisfied that “the reasons or benefits for an individual to enter or remain in Canada outweigh the risks.”

[38]  IRCC instructions and guidelines pertaining specifically to risk assessments in cases of criminal inadmissibility note that the “onus is on the client to demonstrate their level of risk and that further criminal activity is unlikely.”  In making this determination, officers are directed to assess, among other things:

  • the seriousness of the offence
  • the chances of committing further offences
  • evidence of reform or rehabilitation
  • if there is a pattern of criminal behaviour (e.g. the offence was a single event and out of character)
  • if all sentences have been completed, fines paid or restitution made
  • if there are any outstanding charges.

See: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/permits/considerations-specific-inadmissibility-on-criminality-grounds.html.

[39]  Finally, section 29(2) of the IRPA provides that a temporary resident “must comply with any conditions imposed under the regulations and with any requirements under this Act [and] must leave Canada by the end of the period authorized for their stay.”

 

The Problem

IRCC does not set out a detailed regime for TRPs when it is a non-serious inadmissibility or failure to meet a requirement of the Act, and rolls it into a very high threshold assessment. The current website materials, many of which are several years old, are focused on serious inadmissibilities and clearly indicate only the process for permanent residency for those individuals.

This was not in line with the many meetings I was having with individuals who either had or were thinking of applying for TRPs to remedy simple matters and needed just bandaid coverage. Even in the case law framed around TRPs, we have a discussion of ‘risk’ vs. ‘compelling reasons’ which becomes very difficult to apply in contexts involving international students or visitors with temporary status issues largely considered disposable.

Specifically, I am realizing international students need to rely more and more on temporary resident permits, to overcome inability to meet requirements of IRPA and IRPR such as the failure to maintain full-time status. Unfortunately, rather than apply discretion and issue full duration post-graduate work permits for these exceptional circumstances, many Officers have been issuing TRPs instead.

From a logical perspective, an individual on a TRP for not having studied full-time shouldn’t need to wait the same five-years as someone who misrepresented on an application to obtain permanent residence. 

In June of this year, I posed a question to Immreps to try and seek some clarity after a string of individuals coming to see me about TRPs. 

 

 Hi Immreps:

    I was hoping for some clarification on the TRP Holder Class

    (https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/non-economic-classes/permits.html)

    1) If an individuals is inadmissible to Canada for an issue such as not holding a document required for entry (they do not hold a passport and only a refugee travel doc for example) or for perhaps an exemption to the requirement to meet the requirements for the PGWP (given to students who may not meet requirements but still are granted PGWPs w/TRPs) and who has been on valid Temporary Resident Permits for 3 years are they eligible to apply for PR under the TRP Holder Class or should they apply under the traditional economic routes.

     The website only mentions health admissibility, inadmissible family members, and the other main inadmissibilities but not non-compliance.

        2) If they need a TRP and a PGWP is this also considered an exemption to the need to apply online through eAPPs and they can do this paper-based (if they hold a valid TRP currently)?

    (https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/visitors/place-application-visa-electronic-travel-authorization-study-permit-work-permit/exempt-electronic-applications.html)

        3) Furthermore, if they are supposed to utilize the traditional economic routes – when do these individuals no longer require the TRPs? Are they able to simply apply for PGWPs from being Study Permit holders without needing to renew their TRPs and then ask for H&Cs on the requirement to hold a valid passport when it comes to their economic PR applications?

    Thank you,

   

IRCC’s response was as follows:

  Good day, 

    Our sincere apologies for the late response. 

    1) As identified in the link provided, Temporary resident permit (TRP) holders may be eligible to apply for permanent residence as members of the permit holder class if all of the following apply:

  • they have not become inadmissible on any grounds other than those for which the original TRP was issued •they currently hold a valid TRP •they have resided continuously in Canada as a permit holder for three to five years, depending on the nature of their original inadmissibility.

    2) If a client has been granted a TRP in Canada and meets all the requirements identified above and other requirements as outlined in the Act and Regulations, they may be eligible to apply for permanent residence as members of the permit holder class. However, if a client does not meet the above mentioned requirements, they may apply for permanent residence under IRCC’s economic programs if they meet the requirements.

    If the client is inadmissible or does not meet the requirements of the Act, they still require a TRP. If a foreign national holds a valid TRP in Canada and is seeking to extend their temporary resident status, they must apply by electronic means, unless they meet one of the following exemptions:

                    – Exceptional circumstances beyond the control of foreign nationals, individuals or entities

                    – Disability

                    – System restrictions (Come to Canada tool and MyAccount) If the Come to Canada tool and MyAccount are inadequate for the specific application of the client, then they may be exempt from the mandatory online application.

    3) Based on question (1) above, if a client is unable to meet the requirements to apply for PR as members of the permit holders class, they may apply for permanent residence under IRCC’s economic programs if they meet the requirements.

    A temporary resident permit (TRP) holder who is in Canada and who is also a study or work permit holder may extend their temporary resident status by applying for a subsequent TRP directly, using the respective in-Canada forms (Application to Change Conditions, Extend My Stay or Remain in Canada as a Student form [IMM 5709] (PDF, 589 KB) and Application to Change Conditions, Extend My Stay or Remain in Canada as a Worker form [IMM 5710] (PDF, 583 KB)).

    TRP holders are encouraged to avoid a break in continuity, which occurs when TRP holders leave Canada without authorization for re-entry, or when they do not apply for a subsequent permit before the expiration of their existing permit. 

    The issuance of a TRP is discretionary and therefore we are unable to speculate as to when a TRP may be issued or the process that may follow with the issuance of H&Cs, which is also highly discretionary.

 

There are a lot of unanswered questions in what IRCC has provided.

  1. What is the requirement for TRP Holder Class for minor inadmissibilities? (Previous Non-Compliance/Not Holding Valid Travel Documents)
  2. How does one submit a complex TRP (TRP extension) but not get stuck in the paper-based delay process? How it is possible to extend temporary resident status online when most times it is tied to expiring TRPs?
  3. How does an Applicant know whether they still remain inadmissible or if the issue has been addressed by the bandaid remedy of TRPs?

 

Recommended Solution

IRCC should create the TRP equivalent to the International Mobility Worker Unit to assess whether an individual still needs a TRP without requiring them to submit an extension to find out. Indeed, such a department can also assist in determining whether the TRPs can be traded in. For example, in the case of a student who now is holding the equivalent of a post-graduate work permit, should not need to be weighed down by an old TRP. Similarly, an individual who is able to obtain a passport mid-way through their TRP or a subsequent TRV, should not need to leave Canada or be in limbo for several months before being able to switch off that status.

At the same time, those who hold TRPs should be encouraged and assisted with clear instructions on how to pursue usual pathways to permanent residence, notwithstanding past records. For example, stateless individuals (who often need to hold TRPs) continue to be ostracized at each step, first in needing to extend TRPs, second in needing to ask for exemptions on initial application and with filling in electronic forms that require the document, and finally with seeking security check exemptions. Individuals who are recognized as stateless and TRP holding, should have some access to an interim document to aid in the transition from temporary residence to permanent residence.

Finally, I do hope, that TRPs will eventually be delineated by case law and by circumstance, so that applicants do not need to meet a ‘risk’ and ‘compelling reason’ test when they are not inadmissible to Canada for serious matters creating risk, and may have simply made a mis-step that requires a TRP correction rather than a ‘compelling reason.’ Perhaps Officers could themselves go out of their way more, through discretion, to award the original permit (and exempt it on an H&C) rather than issue a TRPs. TRPs confuse potential employers, create paper-work challenges, and ultimately give a sense of instability and otherness. 

It is a label and an application we should assign with caution.

Note: I am grateful to showcase my colleague Yussif Silva as a co-author and editor of this piece. Yussif is currently a legal intern at Edelmann and Co. Law Offices. He graduated with an LLM after a storied legal career in Brazil and is passionate about immigration and refugee law.

Establishment of a Contradiction: Why Accompanying Dependents Stuck with COVID Study Permit Instructions

via Wiki-images.

Immigration, Refugees and Citizenship Canada (“IRCC”) has acted quickly and swiftly to adapt to the changing scene for international students as a result of COVID-19. Through changes to program instructions representing the various phases from exclusion (travel bans) to now the accommodation of the Designated Learning Institution (“DLI”) Readiness plans, it is clear that international students have been a major priority of this Government through the pandemic.

Yet, a counternarrative is also emerging through COVID of both delayed processing and higher refusal rates. Indeed, with just early stats available representing the first quarter of 2020, it appears that refusal rates for study permits have jumped up since the pandemic (40% to 50%). Many students, especially outside Canada, are facing visa office delays waiting for a decision on their study permit applications.

A subset most affected has been those applicants who seek to bring their accompanying dependents, especially spouses and children with them.

Instructions provided by IRCC on this point, in my perspective, might create problems. IRCC writes in their instruction.

If immediate family members want to be with you in Canada

Your immediate family members may be able to come with you to Canada.

If they travel with you

They don’t need a written authorization from IRCC to travel with you. However, they must show that their reasons for travel are non-discretionary (non-optional). For example, they’ll help you get established and support you in Canada.

(emphasis added)

How Does One Demonstrate Establishment Without Creating Ties (the Definitional Contradiction)?

One of the major challenges with study permit applications generally, in fact – likely the biggest challenge right now, is the very issue of Applicants who want to access the pathway to permanent residence through study permit applications.

Because dual intention is more difficult to establish for international students (particularly those who are overage students or are seeking to start fresh in new areas of work), there is a need to demonstrate a clear intention to be able to leave Canada at the end of one’s authorized stay. This challenge is exacerbated when one is bringing spouses and dependents, particularly from countries where Canada would serve as an economic and situational improvement for the entire family.

Meanwhile, because the Courts have scrutinized  Visa Officers trying to make negative bona fide findings without raising credibility as an issue (i.e. sending a procedural fairness letter or holding an interview), the easiest way to refuse an application is on assessing the ‘push’ and ‘pull’ factors with respect to an Applicant’s intentions to leave Canada at the end of their authorized stay.

An Overseas Visa Office does this by demonstrating that there are enough ties to Canada created by the study permit application (‘push factors’) and not addressed by the corresponding ties in their home country (‘pull factors’) to have them return. For an example of this analysis see: Gauthier v. Canada, 2019 FC 1211  – see especially paras 18-23.

This refusal is often captured under s.183(1)(a) of the Immigration and Refugee Protections Regulations which states:

 (1) Subject to section 185, the following conditions are imposed on all temporary residents:

  • (a) to leave Canada by the end of the period authorized for their stay;

If a dependent spouse argues they will help the principal applicant’s studies in Canada by working in Canada, that goes to the heart of the intention and the bona fides. As discussed, even though Courts have suggested these require some sort of procedural fairness process, Visa Offices still routinely refuse here on merit (intention of study). It can also possibly go to finances and ties, if the Visa Officer begins to have concerns emanating from intended work.

Let’s say the dependent spouse says they can support because they have family ties in Canada – siblings, uncles, aunts, and relatives that can assist. Now this creates the presumption of family ties, which again although assisting in establishment, would clearly pull away from Canada and establish the very family ties in Canada that one usually tries to downplay or explain in an application.

Usually where there are significant family ties in Canada, the best strategy is to demonstrate how the compliance or good standing of that family member (usually through a letter) makes them a check and balance. Yet, where this comes from the family member of an accompanying spouse, this argument becomes much more difficult to establish.

In fact, thinking it through, I can only think of one way to argue that your spouse’s assistance to your establishment could be positive – the presence of a large savings account from and maintained in the country of previous residence to serve as financial support. Still here, it could be argued that the movement of assets and liquidation of funds shows the breaking of ties and the lack of dual intention. (see Pisarevic v. Canada (Citizenship and Immigration), 2019 FC 188 (CanLII) for an example of where this applied).

What Should Study Permit Applicant’s Do?

This all leaves the question to be desired – what should be written on an application to both prove family members are essential to assist in establishment, but also to demonstrate that there will be compliance and an overall maintenance of a clear intent to depart Canada.

I think the movement will be towards putting extensive and documented letters of explanation (perhaps even joint letters) to indicate how the establishment intended is temporal. How, the necessity of the family to be reunited comes from the need to establish, but that this establishment is intended for a limited period of studies. Applicants may also want to be more proactive about acknowledging that there is no pathway to permanent residence available (especially for overaged applicants), but rather emphasize on the studies and the manner in which the studies will assist them in their detailed career plans abroad.

To be honest, the best thing that can be done is for the instructions to be struck out and amended. Applicants should still continue to show temporary intention. That is, of course, the very foundation of temporary residence. In so far as they are a family member of a principal applicant, the benefit of the doubt of compliance should be given on the basis of the strength of the principal applicant’s own study plans and ability to leave Canada at the end of one’s authorized stay. In the same way that now spouses are being asked to lay out their dual intention plans on temporary resident visas pending sponsorship, that system should be implemented here alongside a broader accepted dual intention that requires less rigidity. That is the way I would have the system keep itself.

Until that happens, unfortunately I do see more refusals and I do see the need to unfortunately utilize costly processes such as judicial reviews to resolve unreasonable and procedurally unfair refusals.

 

The On the Ground Reality

I think the reality on the ground is that Canada’s international study permit regime still wants to attract the single applicant doing their first undergraduate degree or advanced degree from a linear path. The increasing number of applicants who are having mid-life ideas of pursuing baking school or video game design will probably be scrutinized. The presence of family members – spouses and children, particularly in countries reeling from post-COVID uncertainty will face an uphill battle. My analysis of the increasing refusal rates showed that countries that jumped on the list of those with 70%+ refusal rates were almost all predominantly Global South, Middle Eastern, Caribbean, and African  countries.

That is why I think the current instructions asking Applicants to provide establishment to Canada will be so harmful to those from countries where any line or connection to Canada will be seen as a red flag.

 

Changing Times

COVID has, in a sense, made clearer how much a system is tiered base on country of origin. How much easier it is for study permit applicants who already hold eTAs and may have travelled back and forth to/from Canada as visitors and are now seeking to stay, versus the applicant from a landlocked, travel-locked country seeking to start fresh.

Far from inevitable, I believe COVID should give weight to those who argue that under this current system, we will inevitably create a Canada that is exclusive rather than inclusive, and that continues towards a Western European face rather than one of the many countries and cultures we could use more of and open up doors to.

Time will tell how better, non-contradictory, international student policy can tackle this fundamentally/bigger racial problem.

 

The Under-Examined Role of Racialization in Canadian Immigration

Last week, I presented at the NCIC 2020 on the emerging topic of Critical Race Theory. I wanted to share such a slice of my presentation for further discussion.

Among the five foundational tenets [which include per Delgado and Stefancic: (1) Racism as Ordinary; (2) Interest Convergence; (3) Racialization; (4) Intersectionality and Anti-Essentialism), and (5) Voice-of-Colour (Counternarratives/Legal Storytelling);] one key one is racialization.

Racialization is likely the least understood and (arguably hardest to explain) foundational tenet. It makes some of us who are racialized folks uncomfortable. Those who oppose, find racialization a demeaning term, a short of carved out animal pen of people of colour. Others argue that white folks are ignored when we use the term racialize (a common misconception of the concept) and that such a term ensures a forever uneven playing field with racialized as marginalized and victimized.

When it comes to defining racialization, I would point to the Alberta Civil Liberties Research Centre (ACLRC) from Calgary who write:

Racialization is the very complex and contradictory process through which groups come to be designated as being of a particular “race” and on that basis subjected to differential and/or unequal treatment. Put simply, “racialization [is] the process of manufacturing and utilizing the notion of race in any capacity” (Dalal, 2002, p. 27). While white people are also racialized, this process is often rendered invisible or normative to those designated as white. As a result, white people may not see themselves as part of a race but still maintain the authority to name and racialize “others.”

Calgary Anti-Racism Education (http://www.aclrc.com/racialization)

As Delgado and Stefancic point out in Critical Race Theory – An Introduction  (2017), race and races are a product of social thoughts and relations. Race is not objective, inherent, or fixed. There is no biological or genetic reality to race (so-called ‘eugenics’). Race is a category that society invents, manipulates, or retires when it is convenient.

The process of racialization has occurred throughout the history of Canadian immigration. At the recommendation of a colleague who works in immigration policy, I have been reading Vic Satzewich’s Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945, (1991) which explores the ways by which the post-war labour shortage was filled.

First, it was done by positively racialized Dutch and German migrants, less positively racialized Polish migrants, and at the exclusion of Jewish migrants. The transition to Caribbean migration, a colonial deal, but very much an economic drive one, but also one that racialized Caribbean migrants as temporary and replaceable. That these workers were economically beneficial without being economically burdensome. [See: especially Chapter 4-6 of Satzewich (1991).

The Anti-Black Racism that has been an underlying theme of Canadian racism in a process that has racialized Black migrants as being unable to adapt to Canada.

In 1911, an Order in Council excluded Black immigration on the basis of climate, an inability to adapt to the Canadian climate. Furthermore, Black immigration was racialized as a problem, one that occured in the U.K, and the United States.  Key Canadian decision-makers through gendered and racist comments on limiting the immigration of Carribean women, who were viewed as promiscuous from problematic family structures.

Moving now to Anti-Asian Racism, this is another foundation of Canadian immigration which has had devastating impacts felt to this date – from the imposition of the Head Tax in 1885, to the 1914 Komagata Maru/implementation of the Continuous Journey Act, to the Chinese Exclusion Act of 1923.  

Putting things in the modern day, we have seen the historic racialization play a role in key and foundational cases the Supreme Court of Canada’s decision in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 http://canlii.ca/t/1fqlk where the Officer applied racialized and gendered notions of belonging to Ms. Mavis Baker.

We saw it the Federal Court of Appeal’s decision in Begum v. Canada (Citizenship and Immigration), 2018 FCA 181 (CanLII), [2019] 2 FCR 488, <http://canlii.ca/t/hvhff  where a s.15 Charter challenge yb a racialized Bangladeshi woman relying on research largely done by racialized experts (needed as a result of the absence of publically available race-based data) was thrown out as not having demonstrated her discrimination.

More recently, explicitly, and all-too commonly, we saw it the treatment of Mr. Kaniche in Khaniche v. Canada (Public Safety and Emergency Preparedness), 2020 FC 559 (CanLII), http://canlii.ca/t/j8csn  who was told (in less polite terms) to get out of Canada and back to his home country of Algeria.

We see racialization in the processing of a caregiver program that is majority Filipina women and the refusal at high numbers of African Temporary Resident Visas and Study Permits.

We see links to the past between the Sun Sea MV ten years ago to the much-maligned boat-arriving migrants of the past. We see the way Chinese women were excluded then, and excluded now by the way genuineness and purpose are scrutinized now.

We see the way colour-blindness is now a foundation of decision-making, further diluting those who seek to suggest that racism has become normalized through the process.

We see Courts and Tribunals afraid to mention race, apply the intersectional lenses that we know they are beginning to be trained on, and afraid of moving law beyond the boxed tests of ‘reasonable persons.’

These have all been the the product of processes of racialization, of a racialized system, and the segregating of ‘who is desirable and who is not’ by race. Professor Satzewich writes at page 124 of his book:

“The history of immigration control suggests quite clearly that the Canadian state imposed a racial hierarchy of desirability over the entry of different groups of people to the country and that, inter alia, the imagined community which constituted the Canadian nation was defined in terms of the ‘white race.’ ”

This is a view shared by Professor Constance Backhouse, who writes:

“Immigration laws shaped the very contours of Canadian society in ways that aggrandized the centrality of white power.”

As an optimist, I still feel we have the ability to change this. Not by being continuously colourblind or assuming we are in a post-racial reality, but by delivering equity and racial justice by removing barriers.

The most pressing barrier, the product of racialization, is in the way that post-COVID-19 borders will implement policy (through the breadth of written laws and the application of unwritten policy) to exclude Black and Brown bodies from immigrating to Canada. I highly suspect too, that these individuals will be the first to be removed from Canada when deportations invariably begin – another racialized assumption that they are the least likely (and most resistant) to want to go.

We have already begun to see foreshadowings of this particularly in the context of increasing temporary resident refusals (for those from visa-holding countries). Recent statistics show a huge increase in study permit refusals since the onset of COVID-19 (from a 60% approval rate to 50%), with nearly all of the 80%+ refusal rates coming from African, Central Asian, and Middle Eastern countries that lack Canadian Visa Offices.

On the spousal reunification front, the Government has acted to now support extended family reunification, but applications to sponsor overseas are stuck in overseas visa offices barely processing paper-based applications and simultaneously refusing temporary resident visas.

Without access to a facilitative Electronic Travel Authorization (eTA) process, they can be separated for several years from loved ones and children and are often interviewed over mal-directed cultural concerns.

This leads to what I think we need to do. I see and hear the advocacy needed to ensure that temporary residents inside Canada have access to permanent resident options, and are granted options post-COVID-19 – the so-call ‘Status for All’ camp.

However, we also need to think about the bigger Global pattern, the social construction of our Canadian borders, and what this might mean for the separated migrant family in particular or the extended family seeking to follow the success of Canadian permanent residents and citizens (siblings and relatives) already established. We need to think about what ‘all’ means where there is a limited pie set to be divided.

How are we going to ensure that we do not create barriers in the way we address immigrants that reproduce the racism and racialization of years past – often done implicitly and in the name of economic benefit?

How also, do we engage in a meaningful discussion about the need to dismantle White Supremacy within immigration? How do we do so knowing that to rebuild the foundation for better, pieces must be replaced and power must be redistributed – bottom up from the margins, away from those who currently hold it and bringing in voices we have historically excluded.

How do we do so, ourselves and our perspectives themselves, being so attuned to the normalcy, perceived objectivity, and correctness that our White/White-adapted lenses have given us to accept that our system is the best, our processes are working, and our tasks are simply to work together to maintain and uphold.

Questions – for sure – ultimately much bigger for one blog piece to tackle.

Why New Zealand’s Interim Visa Might Be Canada’s Next Adopted Policy

Implied Status can be complicated.

During the COVID pandemic, I have heard from both employers and employees that understanding when a worker can or cannot work is confusing, and leads to legal risks. Many employers have taken a more conservative approach that has left workers who have authorization to work and are awaiting a renewal, unable to engage in work.

Implied Status has also created the potential for abuse, specifically many unscrupulous agents and consultants will claim to have assisted on helping, even going so far as to fabricate Acknowledgment of Receipts (“AORs”) or other type of correspondence.

A third ‘challenging’ element I have found many applicants have is either when they are switching between different types of permits (study permit and work permit to visitor) or have multiple applications in process.

I recently was part of a consultation with IRCC, where it was hinted that there was going to be a development in implied status possibly coming before the end of the year.

Armed with this knowledge, I recently had a conversation with my mentor Steven Meurrens about what change he might expect in this area. He said to look into the New Zealand model. This is what I will do this post.

Standard disclaimer: I am not a trained New Zealand immigration lawyer. I also do not have direct knowledge of what IRCC is doing. This post is merely speculative. However, as you know from my past work to speculate (and in the process, shape) Canadian immigration policy is what we are all about. 

Before I begin, we should know Canada has a history of borrowing from New Zealand. An Express Entry-style system was in place in New Zealand in 2004, before being adopted by Australia in 2012 and Canada in 2015 (see here for some historical context).

How Does New Zealand’s Interim Visa Work?

New Zealand issues interim visas for those with expiring visas, for a period of six months while their new visas are being processed. Note that New Zealand calls them ‘visas’ whereas they would be more equivalent to permits in the Canadian context.

My brief reading shows that this works much like implied status does in Canada, but importantly does provide clear proof and documentation. It is granted electronically and automatically. Conditions depend on type of permit previously held. From initial appearance, it does seem easier to change conditions on a permit in New Zealand, something I would strongly suggest for Canadian immigration which does require a new extension application rather than a quicker/simpler request model.

I highly suspect Canada will do a similar thing and issue a confirmation of extension through an interim visa which then could be utilized and provide clarification to employers of a worker’s ability to work. However, it will be interesting to see how the system adjusts for those who submit multiple types of extension applications. For example, spouses seeking an open work permit on implied status, may also choose to submit a visitor to guard against a returned application and loss of status. Another example of where this is commonly implied is where a student is applying for a post-graduate work permit but has eligibility concerns and simultaneously wishes to extend as a visitor or as a student. IRCC will need to do a good job in clarifying in publicly related material or a info guide that accompanies the permits, a clearer information guide. Right now, the IRCC website instructions on implied status lack a few crucial details and case examples. The New Zealand immigration website could certainly be a model in this regard.

A portion of the instructions from NZ Immigration site (https://www.immigration.govt.nz/new-zealand-visas/apply-for-a-visa/about-visa/interim-visa#https://www.immigration.govt.nz/new-zealand-visas/already-have-a-visa/your-visa-conditions/interim-visa-conditions/slider)

Finally, the great thing about the interim visa is that if it is declined or withdrawn there is a 21 day period to leave New Zealand. In the context of a Canadian temporary resident extension, should an individual be rejected, they would lose status immediately and become inadmissible and possibly deportable. A 21 grace period (for both extension and withdrawals would definitely input a much needed buffer between admissibility and inadmissibility. That being said, I don’t see the Canadian system going this way.

What I Hope is Different with a Canadian Interim Permit

With all the praise I have showered the New Zealand interim visa, there are certainly some flags as well that should be mentioned.

According to the website, New Zealand does refuse a visa if a decision on an interim visa has not been made in six months. That would be highly problematic, from my perspective, in cases that do require further review. Several clients have recently contacted me because their extension applications are in the 8th and 9th month of processing due to some further review or complications. Refusing someone due to IRCC administrative delay would be problematic.

The other major flag I would put on such an interim visa would be to try and ensure that this visa does not become an algorithmic way to refuse applicants earlier in the process. Right now, one of the big limitations of decision-making are the application forms themselves, which from my understanding flag but still require further triaging for decision-making purposes (for example on criminal inadmissibility, misrepresentation, and not-actively pursuing studies). If algorithmic decision-making leads to instant/quick refusals on interim visas, this process needs to be done as transparently as possible to ensure not only consistency but procedural fairness.

What do you think about interim visas? Should IRCC adopt them? Is this the anticipated change or do you think it is something else?

Get at me – will@edelmann.ca or write me – perhaps we can guest blog feature you.

Why Rain is Right: There is No Principled Reason for Why A Canadian Temporary Resident Should Be Denied the Right to Change Their Legal Gender

Rain Edmond, a third-year political science undergraduate student, recently wrote an op-ed for her university’s Memorial University Gazette that raises an important question about a policy gap disproportionately affecting the intersection of the transgendered and temporary resident communities.

In her piece, Rain, an international student, highlights the challenges she has had in changing her legal gender in Canada as a result of her immigration status, a plight not shared by Canadian permanent residents and citizens who are able to request Verification of Status (“VoS”) documents in Canada to change their legal gender. She writes:

 “Individuals like me who are labelled international students and foreign workers live in, work for, and contribute to communities all across Canada. There are also people who come to Canada seeking a safe harbour, waiting for a decision on their asylum applications.

 We are labelled temporary, and relegated to second-class status. Our legal documentation reflects an identity which is not ours, and which we cannot correct.”

 IRCC’s policy (with an emphasis that this is policy and not enshrined in legislation or regulation) is that temporary residents – international students, temporary foreign workers, and even refugee claimants are unable to change their legal gender from what is listed in their passport.

This creates obvious illogical complications. Many temporary residents come to Canada from situations, where for political, religious, and familial reasons, they are unable to change their legal gender or claim non-binary gender on crucial original documents such as passports and birth certificates. We saw an example of this with Naomi Chen, the transgender refugee claimant from Hong Kong who was forced to make her refugee claim as a man, when the very basis of her claim was on the basis of persecution because of her identification as a woman

For some reason, the Canadian immigration system attaches the ability to legally change gender on the successful granting of permanent resident status or recognition as protected persons, as if it only when they cross the threshold of welcome mat are they able to shed the very painful weight and barrier that may be keeping them from entering the door in the first place.

There are of course the practical implications. You think of the international students, who must fill in countless forms from registration at universities to providing proof of their identity. You think of temporary foreign workers who are already discriminated against when they are applying for jobs, who now in disclosing their status and work legality to potential employers must provide further explanations around gender discrepancy.

What is the fear if we allow temporary residents to change their legal gender?

Whatever floodgates/system integrity argument upholding needs to be tempered by the recognition that legal gender is at the fundamental core of a too-often stigmatized identity. The Human Rights Tribunal of Ontario in XY v Ontario (Government and Consumer Services), 2012 HRTO 726, [2012] OHRTD No 715 [XY] stated:

“it is beyond debate that transgendered persons […] are a historically disadvantaged group who face extreme social stigma and prejudice in our society”, while noting at paragraph 215 that the former requirement “is based not on transgendered persons’ actual characteristics but on assumptions about them and what they must do in order to “be” their gender”.

Cited by Justice Martineau in Chédor v. Canada (Citizenship and Immigration), 2016 FC 1205 (CanLII), at para 14.

We know that in the context of sexuality in the refugee determination processm (especially bi-sexuality and homosexuality), that the perceived lens of heterosexuality and normativity burdens refugee claimants trying to establish their identity and prove one’s persecution (see: Dr. Megan Gaucher in her seminal book A Family Matter: Citizenship, Conjugal Relationships, and Canadian Immigration Policy [UBC Press, 2018] at Chapter 3 (see especially paragraphs 76-94).

Harsha Walia, now Executive Director of the British Columbia Civil Liberties Association, in the quote that prefaces the Chapter and the numerous case examples provided by Dr. Gaucher, that “this most impacts queer and trans-refugees.”

The number of published, transgendered-based immigration tribunal and Federal Court judicial review decisions still is relatively limited and provides only pockets for legal analysis. This is understandable as the Immigration and Refugee Board (“IRB”)’s Sexual Orientation and Gender Identity and Expression (“SOGIE”) Chairperson’s Guidelines, are only a few years old, having been introduced in 2017. Members are still in the early stages of interpreting and applying this guideline to their decision-making.

There have been some positive decisions. To draw just one example, in Pirmousaei v Canada (Citizenship and Immigration), 2019 CanLII 130750 (CA IRB), the Immigration Appeal Division (“IAD”) Member allowed the appeal of a transgendered Iranian woman who failed to meet her residency obligation because her family tricked her to return to Iran, stole her travel documents, and did not accept her transgendered identity. The Member took no issue with credibility, commenting simply:

[9]               There is no dispute, there is no evidence before the panel to doubt that the

Appellant arrived in Canada as a Convention refugee. The panel also have no doubt to believe that she is a trans-woman from Iran.

I would offer, on the end of the spectrum, the Refugee Appeal Division (“RAD”)’s decision in X (Re), 2019 CanLII 120788 (CA IRB), where the Member found a misgendering concern raised later after the RPD and the lack of documentary evidence in transgendered persecution, fatal in dismissing the appeal

The RAD Member’s criticism towards the Claimant for not raising the misgendering issue earlier at the Refugee Protection Division (“RPD”) hearing reveals the legal impact of not offering Claimants the clear ability to change their legal gender prior to the process.

The Panel writes in rejecting the Claimant’s argument that misgendering was a ground for appeal:

[54]           The RAD notes that the Appellant testified at the RPD hearing that he was raised as a boy by his parents, and that this is why he continues to dress as a male. The RAD, in its review of the audio recording, finds that the RPD asked the Appellant which gender he would identify himself if requested. The Appellant testified that he would identify himself as a woman. The RAD finds that the RPD could not be expected to anticipate that the Appellant would allege, post rejection of his claim, that he was misgendered or that he suffered from trauma which impacted his ability to present his claim. The RAD finds that the Appellant and his counsel bore the responsibility to raise this issue with the RPD at the hearing. The RAD notes, as previously discussed, that the Appellant tendered an affidavit from his counsel, in which he states that the Appellant did not present with any overt symptoms of trauma. As well, the RAD has noted that the Appellant showed little signs of trauma or impairment of his ability to present his claim.

(Emphasis added)

 In this same case, the RAD Member also criticizes the scarce documentary evidence corroborating the Claimant’s arguments of persecution on the basis of gender. This repeats a common theme as well in sexuality cases. As Dr. Gaucher highlights in A Family Matter, at page 85:

 “This suggests that country documentation can potentially trump claimant testimony should the two disprove each other. Claimant testimony is arguably considered well-founded so long as it corresponds with adjudicators’ preconceptions of sexual orientation and external documentary evidence.”

 In the X (Re) 2019 CanLII 120788 decision, the RAD Member writes a decision that mirrors this line of analysis:

[111]      The RAD finds in its review of the record that the Appellant has not adduced any evidence that he faced any of the problems described in the documentary evidence through his identity as a Hazara male. [112]      In respect of the Appellant’s targeting by a classmate, the RAD notes that the Appellant stated that he successfully avoided any further contact with XXXX following the XXXX XXXX, 2016 episode. As much as the Appellant alleged that he received telephone threats two days following the episode, he addressed the problem by removing the sim card from his cellular phone. The RAD notes the Appellant alleges he remained in Afghanistan for two months prior to fleeing the country without any further interaction or problems from XXXX. The RAD finds the Appellant has advanced insufficient persuasive evidence to indicate that this individual would pose any sort of risk to the Appellant over three years later. [113]      The Appellant has argued that an individual with a transgender identity could simply not exist in Afghanistan and that this is confirmed by the Appellant’s own experiences of being targeted by a classmate for rape and murder. The RAD has addressed this concern and found that the Appellant has not provided sufficient credible evidence to support his allegation that he would face a risk of persecution or harm, should he return to Afghanistan. His argument must fail.

With such evidentiary barriers already embedded in the refugee determination process that we know will make Transgender claims more difficult to present and adjudicate,  I would suggest eliminating front-end barriers such as misgendering and the inability to choose one’s legal identity becomes of even greater significance.

Finding an Accessible Solution

For all temporary residents, especially those on the pathway to permanent residents, it is due time to provide a non-medical procedure, such as a sworn affidavit and a private and secure application process, to facilitate this fundamental human right to identify as one’s preferred gender. The fact that Canadian permanent residents and citizens can do so with relative ease, makes in my perspective, this policy limitation directly counter to the Charter language of s.15, and ripe for future litigation.

This is where we are. We can either be proactive about Canada as a Trans rights-protecting nation or continue to let our public and Government institutions, tribunals, and courts impose unnecessary trauma and harm on Trans communities, over what should be an administrative step.

I hope that IRCC changes their policy soon, on behalf of Rain and so many other folks, seeking solution and action.  I hope that Canada can provide Trans migrants, regardless of their ultimate interest in permanent residency or citizenship, what asking for – a greater sense of safety, of belonging, and value of their personal identities.

 

Yes, I Review Spousals – But Here’s What You Should Know (6 Points to Consider)

LearningLark / CC BY (https://creativecommons.org/licenses/by/2.0)

More and more I have been approached by spousal (spouses and common-law partner) sponsorship Applicants and Sponsors asking me to provide a review of their materials in lieu of full representation. While I still recommend those that can afford it to pursue full representation if possible, I understand the benefit of hourly review during these times.

Yet, many lawyers and law firms I know are unwilling to do hourly review because of the risk and uncertainties this work poses. Many are afraid that having an incomplete picture that can lead to incomplete advice, and create liability problems down the road.

I believe spousal reviews is not only a necessary part of my practice but good for access to justice. However, because of the misalignment between the clients seeking the services and the lawyers willing to offer it, many times confusion is created.

In this piece, I put forward six points that will make it easier for self-represented applicants to approach lawyers and work through the review process.

Point 1: Understand Our Mutual Limitations and Constraints

The main constraint of the self-represented applicants seeking my assistance in hourly review is cost. They are unable to pay a full set fee, have exhausted public information (from forums, blogs, etc.) and now need help on specific pieces of their application. Most often times these specific issues include inadmissibility, letters of explanation, police certificates, etc.

From the lawyer’s perspective, the constraint is usually more based on risk. With only incomplete or piecemeal information, how can a proper job of assessing a file be done?  Is the time spent on this particular issue (usually clients will want reviews to be done in 2-3 hours or less) worth the possibility of not being able to see the application, the whole way through.

First, in order for this process to worth smoothly, an immigration lawyer must prepare a clear retainer that indicates the scope of work (limited scope retainer) and in subsequent emails continue to set and establish the expectations of both sides. Applicants and Sponsors should be aware that a full cover to cover review does take several hours (ideally 4-5 hours +) and limiting the budget of a review to only 2 or 3 hours may not allow for all the details to be adequately looked at.

In some cases, this will be fine as your issues are limited to particular areas. In a limited review, it is my practice to clarify with you both at the outset of my review and as well after providing my comments and recommended changes, that I did not see the full application and cannot be responsible for issues such as incompleteness.

This is a risk the Applicant must bear in a limited review, but ultimately where the cost savings also occur.

Point 2: Organize Your Files: Personal Checklists and Electronic Files

It is my practice to send a cloud-based link to my clients so they can upload the files they want me to review.

I can advise that from a time/cost-saving perspective, when these files are all over the place and not in the order of a personalized checklist or even the document checklist, this adds time to my review. I often see this manifested in things such as uploading relevant documents as unnamed jpegs and single page pdfs.

One of the best ways to save on costs is to put everything in your file into one very organized bundle or at least electronic subfolders that guide me into what I should review and in what order.

Point 3: How Do You Want to Structure Your Review?

Some lawyers prefer (and I prefer) at least a check in during the beginning prior to preparing the materials. It is so crucial to spend an hour at the front end going through materials to make sure everyone is on the same page.

I point out usual traps and where clients often make mistake, introduce standard form content for support letters, the importance of a photo essay, how to document shared finances, or cohabitation, etc.

I prefer these reviews because I am able to first give instructions and then meet the clients when their documents are drafted. Some add a session for a first draft and then a final draft.

I am bigger fan of more check in points on these hourly reviews as it usually makes the final review of the combined pdf package or paper package, much more effective and efficient.

Point 4: Do You Want to Disclose My Assistance?

There are mixed perspectives on whether an IMM 5476E – Use of Representative Form is required where an Applicant seeks legal advice but where counsel does not act as an authorized representative.

Currently, the IMM5476E form is only required to be signed by a paid authorized representative. Where only review takes places (especially partial review), many practitioners do not consider themselves as the authorized representative on the file. You will likely see this language in both retainers and as well on any advice letter you may receive.

My advice for clients is to choose for themselves whether they wish to disclose my assistance. For those that do request, I usually provide a letter at the end of the engagement confirming my assistance and services provided as counsel but not as the authorized representative for the file.

I do hope there is a fix down the road, where IRCC creates a form for the disclosure of assistance received. I do believe it is problematic that many unauthorized representatives are able to ‘ghost’ applications, but at the same time requiring all authorized representatives to be disclosed by self-represented applicants who may have sought piecemeal advice from various lawyers, seems also unsuitable.

On that final point, always ask to have direct communication with the individual behind the scenes – if it is a lawyer, or consultant. Check their name against the ICCRC consultant registry  or territorial/provincial law society lists. Always make sure to have direct contact established with the individual who is listed or authorized to provide immigration advice.

Point 5: When to Convert to a Set Fee

Depending on who represents you, this conversation may come up. Sometimes it will be a sales pitch, but in my practice I really do ensure to let the clients know when a file is of a significant enough level of complexity OR if what I am seeing in drafts is so poor that full representation is the ideal solution.

Make sure to ask (at the front end ideally) how it works when that switch occurs. A representative who is transparent and client-focused with their work will give you some sense of this at the front stage of an hourly retainer or else take some credit for time spent when quoting that set fee.

Point 6: Discuss How Follow-Up Would Work

Once the application is submitted, there could be other steps. In other cases, it might be the stage you decide to go it your own as the remainder of the application is simply administrative until a fire arises.

It is good to signal to your lawyer how you want to work moving forward. Perhaps you want to leave a small amount of money in trust for follow-up work? It is best to clarify these things in advance so there is not a last minute, unexpected request when something goes wrong, without certainty of when these steps might occur and capacity to step in to put out those fires.

 

Transparency is Key. That is Why I WRote This Piece.

I hope in reading this piece, it is not looked at through the lens of me marketing my services. Indeed, some within the lawyer-side of the industry would wonder why I would discuss in so much detail my thought processes and ways of work. For me, at the end of the day, it is about ensuring those who contact me know they are getting into.

We have had remarkable success to date on hourly review files that have saved both client fees and obtained the end results, while providing the key knowledge and training needed to complete the tasks. Again, this will defer, from client to client. Some will need extra hand holding. Some will have more complicated fact patterns and legal issues that require full representation as authorized representation. Yet, there is a very large demographic of clients that can seek just enough advice to keep costs affordable without compromising end product that I hope will learn a few things from this article.

What’s Happening in October?

Signing off until the end my tribunal matter tomorrow. October will be a crazy month of presentations and personal changes and I am really looking forward to sharing all of the news and updates with all of you. I have also working on a few legally technical/substantive pieces that I hope will you will enjoy!