Category Archives: Canadian Immigration Law Blog

Beware of a Newer Type of Immigration Fraud – Employer-Recommended Consultant Scheme (“ER-C Scheme”)

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There is a new type of immigration fraud out there, particularly affecting graduating international students who are desperate to seek grounds to extend their status in Canada and obtain work.  I will call it the (ER-C) Scheme.

The fraud works this way. IG (international graduate) gets an interview with a Potential Employer (ER). Employer mentions there is a possible job offer coming and that they have a consultant (C) who can assist on the work permit extension application (let us assume IG went to a school that does not offer a PGWP and cannot afford further studies at this stage). (IG) books (C) for a consultation and engages them with legal fees to prepare the entire application. At the very last minute (ER) backs out. (C) acts as though this is entirely out of their control and that this is an unfortunate situation. IG is left stranded. (C) later splits earnings from those legal fees with ER. The IG is now dealing with a status issue and is desperate to find a new opportunity – for which (C) the recommends another option that will bring her further legal fees.

This diverges from traditional fraud methods (fake documents, fake job, fake tax returns) and is dangerous in that it insulates those perpetrating it from the direct attention from immigration unless the victim directly contacts IRCC to report this matter. Given the victim themselves may have status issues precluding them from wanting to make their situation too obvious, there is that additional layer of disincentive. The paper trail between ER and C can be hidden through case only transfers or other gifts exchanged.

How do you prevent this type of fraud?

Always ask the Employer whether the representative they are recommending is their own representative and will be assisting on a dual representation agreement. If not (or if not clear) seek independent legal advice or perform an independent verification of the representative before engaging their services.  Ensure that you do not sign any contracts without clear indication that there will be no financial benefits shared between ER and C.

Reframing the “Problem” of Birth Tourism – a Few Alternative Perspectives

Recently, there has been another media influx relating to the “problem” of birth tourism. In the past, I have commented on this issue twice publicly – for Chatelaine/Macleans Magazine and CTV News.

Unfortunately, much of the debate again has revolved around what I strongly to believe strong ethnocultural tensions, particularly through Richmond where tensions have been brewing for quite some time and understandably so, with various related debates or controversies no doubt fueling the fire.

Positively, some media have been very clear about distinguishing between birth tourism and non-resident births. It is understandably easy to view all problems as coming from the same source – illegally planned and operated birth tours and birthing hotels. In actuality, however, the situation is much more complicated and the numbers of foreign billing addresses cannot correlate directly to the problem of birth tourism.

I want to highlight just a few modified situations that are very common, that I have seen, and would lead to non-resident births.

  • A is an international student and her husband B is a permanent resident. They have lived in Canada for 15 years. Because of an immigration matter, X has lost status. She is ineligible for MSP, even though her husband is a permanent resident. They want to have a baby because both are heading to an age where must have a child or else fear not having a dependent. If A leaves the country, she would never be able to return;
  • C is a temporary foreign worker in Canada. She had a one night stand with a fellow club go-er and found out she was pregnant. Her work permit is set to expire and she has no grounds to renew her status. Her MSP is expiring. Religiously, she is pro-life and does not believe in abortion. She chooses to have the baby but cannot afford the fees.
  • D has returned back from her home country. She recently returned with her son and uncovered that her husband had been having an affair with a younger woman. This occurs after the couple has sex. She returns to Canada and on the advice of her family members decides to keep the baby.

The above are all situations where the mother would be non-resident that have nothing to do with birth tourism.

In my opinion, the fact individuals are avoiding bills should be considered a separate issue from that of who is giving birth. Theoretically, if they are utilizing birthing hotels and paying exorbitant (and highly illegal fees) to these underground birthing houses – why is this money not flowing to hospital. Who is trying to cover up the paper trail here? Are women subject to minimum standards of care at these facilities? If the women who are arriving to give birth are truly low income and unable to pay bills, what are the circumstances that have created this?

Second, this issue should not also mask a deeper problem of complex diasporic families that has arisen as a result of immigration. It is not uncommon for a mother and her children to be left in Canada while one spouse obtains work or manages affairs from abroad. In this sense, the fact that they would seek assistance (if they have financial means) of some third-party help seems reasonable. Yet, why are these individuals seeking services that appear not to hold legitimate business licenses? Are there barriers/distrusts of local services and how do we create a more inclusive environment?

Government resources, in my perspective, should not be focused on creating legislation that curbs non-resident births but instead severely punishes those who engage in the exploitative practice of encouraging (for profit) individuals to risk the lives of their children to come to Canada to give birth. Inputting intent to individuals who legitimately want to have children in Canada because they have “non-resident” status here as international students (short-term students – awaiting MSP), are awaiting spousal sponsorships as visitors, or have lost status is going to be a necessarily overbroad solution.

What worries me – is that there is so much that occurs in the underground economy – that takes years for government officials from different levels to respond to. Those years of bureaucracy create a perfect breeding ground for exploitative businesses. Add into the mix many newcomers and/or local residents struggle to make ends meet at survivor jobs, the prospect of being able to run a business outside of the view of regulatory bodies at a higher income starts appearing more attractive. This is an issue that goes beyond one community and is very rampant in Vancouver – be it the drug trade, illegal loan sharking, barely above water investments, etc.

Returning to the main point – should Canada have citizenship by birth? For me this is a foundational principle that should not be altered. Rather than allowing our citizenship to simply flow through descent and passed through generations, those born here with real physical connection to the country should be allowed to obtain citizenship. Indeed, for a country of settlers that arrived the same way, to now try and alter laws to preserve some sort of uniformity would be highly contradictory and deeply unaligned with the Canadian values that I firmly believe in.

 

 

Why IRCC Should Pay Attention to the B.C. Small Claims Case Li v. Dong 2017 BCPC 285 – Re: Custodian and Unauthorized Immigration Practice

Picture from Wiki Commons
Picture from Wiki Commons

Background of the Case

Li v. Dong, 2017 BCPC 285 (CanLII), <http://canlii.ca/t/h6ftb>  was a five-day small claims matter between two educational agents, Ms. Chunmei LI and Mr. DONG.

Without delving too much into the myriad of messy facts – Mr. Dong was an educational agent and Ms. Li was a sub-agent. They had primarily verbal and one written agreement between them to split the cost of recruitment fees and percentage of tuition fees for minor students recruited from China.

Among part of this play was the fact Ms. Li charged students (who were from her own English language institute in China) $5000 to $6000 for “supervisory services” including custodianship. Ms. Li (new to Canada as a PR) wanted to better understand the educational market in Canada and therefore assisted Mr. Dong for various amounts per school. Some schools offered their own student services/custodianship services but this did not dissuade Ms. Li from charging her pretty penny.

Mr. Dong also benefited by charging CDN $300 for a custodian notarize fee from Ms. Li and CDN $1200 for a custodian fee of the CDN $5000 wanted to charge the students she referred to Mr. Dong.

Adding another layer to the mix, was Ms. Cindy Lii, who testified on behalf of Mr. Dong at Small Claims Court, discussed the fact she prepared documents for student visas and school applications for the students. She would refer students to Mr. Dong and also collect a cut [side note: there is no one last name Lii on the ICCRC registry]. Ms. Lii also took fees from Ms. Li to help prepare study permit applications.

Why should IRCC care about this?

From my perspective, the current rules around minor children – where, unlike with Universities there is no #DLI or sense that a student has to meet certain bona fide requirements in order to qualify – is broken. With no regulation of educational consultants and the cross-border movement of children and money, the natural consequence is the type of taking advantage of (I would deem it exploitative to call it mildly) that is ultimately being done at the expense of young children and their unbeknownst parents.

In the same way that a recruiter cannot charge both the employer and the employee, somehow in the business of minor students and educational agents, we have lost all control. This same problem affects post-secondary students but at least there are some safeguards and students themselves can advocate for themselves in a complaint.

Why are educational agents charging funds to have an immigration (custodianship document) signed?

Given notaries are all able to sign them (they don’t require any s.91 rep) – who is keeping track?

How is someone who is presumably not a designated immigration representative able to not only charge students to do visas, but charge other agents to do visas on their behalf and simultaneously collect funds from the very schools these students are obtaining visas for through agents?

I actually wrote this in part of a s.44 submission to CBSA not so long ago – but the fact is these agents are being inherently authorized by allowing to practice (without investigation by authorities), given business licenses, and provided advertisement space. How much fault can you really pin on the end user when 90% of what is provided in your own language in front of you is falsely claiming to be legitimate.

Why are schools not being regulated in the amounts they can charge for services and what these services are directed at?

We talk so much about big money – and rightfully so – through casinos and real estate, but the impact of money being washed through innocent children in the name of the education should raise some sort of moral conundrum that IRCC would want to step in on.

I would suggest IRCC make major clarifications to the custodianship process and indeed require clear third-party legal advice prior to accepting the form.

To go a step further, I would suggest that with the looming influx of minor students that will become university students and later put upward pressure on our economic immigration system, that schools be issued quotas for minor international students consistent with a prescribed ratio – based on Canadian students, with an emphasis on schools outside metropolitan areas that may require economic assistance or greater diversity.

Schools should also require designations in order to ensure minimum standards are met prior to enrolling minor international students. Private Schools, especially should have to provide some sort of compliance update to the Ministry.

Whether the Provincial/Federal Government knows it or not – education has become an exportable commodity. Therefore just like goods require taxes, tariffs, and customs law – so does education and especially international education. I think the Governments should reach out to one another and strike up a working group. I know I’d sign up given the stories I have been hearing and the type of preventable catastrophes that are looming around the corner.

Hopefully IRCC puts focus on this issue as I definitely see the snowball and these type of cases increasing without clearer guidelines and stronger deterrents.

 

Lessons from Losses – Importance of Good Interpretation in Immigration

I recently was counsel on a multi-layered case named Zhang v. Canada (Citizenship and Immigration), 2018 FC 502 (CanLII), <http://canlii.ca/t/hs2j6>

In Zhang, the client (my client) attended an in-Canada spousal  interview with former counsel and as well with an interpreter who former counsel had assumed was certified, but was actually not.  In-Canada spousal interview have a heightened level of procedural fairness. Only a few cases to through to this interview stage. Without appeal rights, this interview serves as the final decision, and often with clients that have status issues, a refusal could be a trigger point for enforcement and possibly long-term separation.

The Officer in the matter decided to proceed, even know the interpreter was unqualified. This lack of qualification was not shared with the Applicant, only the Sponsor, who himself conducted his portion in English. For the Applicant, the Officer asked merely if she “understood the intepreter.”

While Justice Phelan did not rule our way, I found it interesting how this case and my recent experiences with my new Firm have really opened up my eyes to interpretation and the importance of certified interpretation.

Interpreters can truly make and break cases. Even for something as seemingly simple as a client consultation (and where you yourself may have a working understanding of the language), having a certified interpreter present is crucial.  Even where an assistant may be fluent in a language, having an independent certified interpreter available to provide accurate accounts and swear required affidavits. I have seen in too many cases the haphazard signing of affidavits in the English language where the affiviant has little clue of the content.

The case law around interpretation, from my preparation on the file, is very scattered. I won’t go into too much detail here, but it appears that it is only in cases where Tribunals or Government’s are providing the interpreter, where the interpretation is not clear and contemporaneous, and where the Applicant attempts to draw this to the attention at the earliest possible time that procedural fairness/Charter rights are ultimately triggered.

In Huang, the Federal Court set out the requirement as follows:

[8]                The Applicant has a right, under section 14 of the Charter, to continuous, precise, competent, impartial and contemporaneous interpretation. The Applicant is not required to show that he has suffered actual prejudice as a result of the breach of the standard of interpretation in order for this Court to interfere with the decision of the Board (Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), [2001] 4 F.C. 85 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 435 (QL) ; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951 ).

Huang v. Canada 2003 FCT 326 at para 8

However, this is contrasted by another decision, Baloul, that applies a much higher standard for mistakes made by the Applicant (any by extension, their counsel) themselves:

[22]… The applicant had sufficient time to obtain an interpreter, but chose not to. The risks associated with this choice were spelled out in unequivocal terms and the applicant chose to assume these risks. I would add that the onus placed on the applicant to provide an interpreter has been upheld by this Court (Kazi v Canada (Minister of Citizenship and Immigration)2002 FCT 733(CanLII) at paras 16 -18, [2002] FCJ 969).

[23]  When it became apparent the applicant was having difficulties understanding and answering the immigration officer’s questions, for the benefit of the applicant and though she was not required to, the officer offered to invite a colleague to interpret. The applicant agreed to this suggestion of her own volition and cannot now question the quality of this interpretation when she was well aware of the consequences of not arranging for her own professional interpreter. Furthermore, it is well established law that where there are translation problems, the complainant must raise the problem at the first reasonable opportunity (Oei v Canada (Minister of Citizenship and Immigration)2002 FCT 466 (CanLII) at paras 40 and 42, [2002] FCJ 600Kompanets v Canada (Minister of Citizenship and Immigration)2000 CanLII 15377 (FC)[2000] FCJ 726 at para 9, 196 FTR 61; which the applicant did not do in this case.

I don’t change my own legal position (that I presented) that this requirement should run both ways. For an Applicant who does not speak English and a Counsel who does not speak the Applicant’s first language, interpretation is a complicated exchange. I do believe that there needs to be a clear instruction to IRCC Officers that if the interpreter is not qualified and upon confirmation that this was not a bad faith error, that the Sponsor and Applicant should be fully advised of the fact and asked to sign a document either confirming a new appointment or waiving the requirement for certified interpretation.

This level of heightened procedural fairness is consistent with IRCC’s position at the Port of Entry.

OP4 of IRCC’s Port of Entry Manual states:

A border services officer who is using a non-accredited interpreter to conduct an examination should suspend the examination if it becomes apparent that the person may be inadmissible. The examination can be continued once a competent interpreter is available. This is important for the following reasons:

  • When making a decision on admissibility, the border services officer needs a reliable and trustworthy interpreter in order to be sure that information provided by the client is accurately translated. Inaccurate translation could result in a decision based on misinformation, which is detrimental to the person. This would constitute a breach of natural justice.
  • Information obtained at examination is often used as evidence in admissibility hearings and, less frequently, in criminal prosecutions. If a competent interpreter is not used, the evidence can be discredited or rendered inadmissible.
  • All immigration decisions relating to admissibility are subject to judicial review by the Federal Court. The Federal Court reviews the fairness of the process leading to the decision and will strike down any decision based on evidence obtained through an interpreter whose competency is in doubt.

Not ironically, in a June 2018 update not long after my case was published, IRCC put an additional section regarding complaints about an interpeter.

Complaints about an interpreter

Complaints regarding interpreter competency or comportment can generally arise before, during and/or after the interpretation services are delivered. The complaints could range from no-show or last-minute cancellations, to poor interpretation, to after the service when the interpreter could engage with clients and claimants in communication that could be a ground for conflict of interest.

Authorized IRCC users and clients/claimants must raise concerns with respect to interpretation during the course of the interpretation service, at the first opportunity, unless there are exceptional circumstances for not doing so.

Where concerns arise regarding interpreter competency based on information that only became available after the service is rendered, the authorized IRCC user should discuss these with an interpreter as soon as possible.

It is so very crucial for counsel to clarify that their interpreters are properly engaged. I strongly recommend familiarizing yourself with the STIBC (https://www.stibc.org/).

Hopefully, with more counsel utilizing interpretation and clients realizing how important this additional $50 dollars an hour (or so) could be to their immigration cases, that we reduce the types of mistakes that could have devastating impacts, particularly on those without financial means to seek legal support and advice.

Clarification Needed: Why the IEC Work Permit and Implied Status Problem Needs Fixing

Other than the permanent resident delay problem, the surprising #2 line up outside my door question this late spring/early summer has been about International Experience Canada (“IEC”) Work Permit Extensions. Several individuals hold IECs and are now asking about obtaining Bridging Open Work Permits and Spousal Open Work Permits, hoping to rely on implied status to transition from to the other.

This Moving 2 Canada post (I am not sure if they are qualified immigration consultants or not so I will just throw up big disclaimers here) captures well the uncertainty, confusion, and problem with how the law/regs often interfere with policy.

Source: https://moving2canada.com/iec-implied-status/ 

I also found other examples of where IEC’s FB appears to condone implied status with the arbitrary 30 days before expiry rule – that also isn’t a “must” under law (?).

Capture - IEC implied status

Even as late as earlier this week I had an individual walk in my door stating that the call centre agent was adamant that they could not extend an IEC work permit/seek implied status.

IRCC’s website doesn’t provide a clear cut answer either but leans towards the possibility of protecting your legal status by extending to another work permit:

Extend IEC work permit 3

Legally – No barrier to IEC Implied Status

Here is the scene: Canada has signed several agreements with countries and organizations under the #IEC. Under these agreements, there are written in rules that limit the duration of stay to no more than 12 months. This extract is from our Youth Mobility Agreement with Slovakia.

Shall Not Exceed 12 months

Source: http://www.treaty-accord.gc.ca/text-texte.aspx?id=105237

However the relevant regulation, R.186(u) of the Immigration and Refugee Protection Regulations does not provide any qualifications on implied status or working on implied status:

No permit required

 A foreign national may work in Canada without a work permit

……

(u) until a decision is made on an application made by them under subsection 201(1), if they have remained in Canada after the expiry of their work permit and they have continued to comply with the conditions set out on the expired work permit, other than the expiry date;

Regulation 201 states:

Application for renewal
  •  (1) A foreign national may apply for the renewal of their work permit if

    • (a) the application is made before their work permit expires; and

    • (b) they have complied with all conditions imposed on their entry into Canada.

In short, other than the international commitments made to other countries through these youth agreements, there is nothing in IRPR stopping implied status UNLESS someone it was made a condition of the work permit that it was not extendable (#IRCC, please don’t get ideas). It seems to be a Government website wanting to not advertise it as an option in light of it’s other written commitments.

So far I’ve run into no push back but if there are cases of refusals, I query…..

  • Will this implied status period count towards permanent residency work experience?
  • Can someone be removed from Canada per s.41, s.29(2) for working on implied status?

Remember – implied status does not work the other way (for certain!). An IEC work permit is an application made outside Canada and therefore you need to physically obtain a WP approval letter before heading to the Port of Entry and/or applying at a foreign visa post!

IRCC could use some clarifying policy on this! Applicants are getting confused.

Canada’s Minor Children Custodianship Crisis – IRCC Needs to Step In

I read a recent piece quoting my mentor Richard Kurland and his prediction of Canada’s Express Entry system being flooded by international students who come to Canada in their K-12 years. In it, he predicted that they will then go on to attend college and university and are therefore will very qualified and achieve high eligibility under our existing permanent residency rules.

Clearly there is a bottleneck issue that must be addressed sooner rather than later to ensure that there is not a challenge with these graduates in the job market and later applying for permanent residency. This could put additional strain on our humanitarian and compassionate grounds – permanent resident stream as well, if not properly navigated.

I wanted to focus on a related spin-off issue involving minor children. This piece is on a practice that has come to my attention recently that IRCC needs to urgently investigate and with priority.

Currently, there is a major trend of global educational consultants and families working directly with public and private K-12 institutions to facilitate study permits for minor students whose parents do not accompany them or accompany them as a visitor (i.e. without work permit/student status themselves). In these cases, a custodianship form – IMM 5646E is required. They need a custodian in order to study in Canada.

The Problem with Custodianship in Immigration

Custodianship is defined by IRCC as follows:

“A custodian is a responsible adult (Canadian citizen or a permanent resident) who takes care of and supports the child.”

The problem with this term is it is a Canadian immigration definition, not grounded in family law and the more significant and onerous term “guardianship” and thus creates a major knowledge gap in what the custodian can and cannot do, and the minor children (and their parent’s) ability to intercept. What happens also when a custodian is unable to fulfill their duties or a student needs to switch custodians. Are there any legal requirements other than PR/Citizenship to become a custodian?

Where this becomes particularly problematic is in the environment now where you have schools and their administrators/staff/teachers/related agent parties serving as said custodian. Indeed, recently I learned of individuals being custodians over 300 students at some elementary/secondary schools. To me, this is a recipe for disaster. Putting one individual in charge of over 300 students for their “care and support” in any context does not make practical sense and opens up a whole can of legal worms.

Worse yet is the relationship between the agent and the school or the staff and the school. Should the minor child (let us use the example of a high school student) have a conflict with the school – for example academic challenges, breach of school rules, etc., there is arguably no incentive to seek any care and support for the child .

In fact likely an incentive to seek the student’s immediate return to their home country. Adding to the fact there are major barriers to language and communication between parents and the minor student – often times beyond the abilities of the custodians, it is unclear how these disputes are to be resolved.

I was recently contacted on a case where the custodian (rep from school) was prepared to drive the child to the airport to facilitate their return from Canada, without their parent or the minor’s permission. They allegedly prevented the student from obtaining a phone and created other restrictive barriers – all, likely, for the interest of likely protecting the school rather than the student.

Minor children should not be the poker chips in the process. It is not clearly transparent what limits there are on custodians receiving fees from minor children and their families and limits of what they can and cannot do with respect to the security of the child.

What can IRCC do? I have a few suggestions:

  1. Clearly define custodianship vis-a-vis family law definitions of guardianships and require more than a two page signed form in English to formalize this agreement;
  2. Clearly set a limit on how many students one custodian can be responsible for the care and support of;
  3. Set an obligation for full disclosure to the parent/child where there is a existing relationship with the educational institution OR ELSE bar individuals with said relationships from acting as custodians.
  4. Consult with experts in the field such as Justice for Youth and Children (http://jfcy.org/en/);
  5. Ultimately create a set of much more detailed guidelines setting out where additional fees can be charged, the rights of the child, etc.

I hope this issue can be solved before it becomes worse. With the numbers of minor students coming to Canada without parents seeking study permits, I do worry that it may only get worse before it gets better unless urgent steps are taken now.

With the more restrictive issuance of study permits at a post-secondary level and the penultimate demand for minor student study permits – now would be a great time for IRCC to proactively tighten the rules and clarify the policy.

 

R. v. Eustaquio, 2018 ABPC 55 – Lessons Learned About Misrepresentation as an Immigration Offense

This case comes from the Provincial Court of Alberta, with the judgment having been released in March 2018.

Ms. Eustaquio  (“Ms. E”) is a 60-year old Canadian citizen with no criminal record. She has two elderly parents who are in their mid-to-late 80s. The deterioration of Ms. E’s father led to Ms. E supporting her niece. Mari Ann Gantuangco (“Ms. G”) to apply for a work permit.

In 2015, Ms. E supported Ms. G’s permanent residence application as part of the live-in caregiver class per s.133 of the IRPR. Ms. E supported the applications through an employment letter – signing a statutory declaration and declaring hours of work.

In reality, Ms. E’s representations were not true. Ms. E’s parents were out of Canada in the Philippines for six months and the United States for thirteen days, contrary to what was stated on the employment letter.

In this matter both Crown and Defence supported relatively lesser penalties, with Crown suggesting a suspended sentence (with probation0 and the Defendant’s counsel suggesting an absolute discharge was appropriate.

Justice Fradsham reviewed several recently cases (nationally) from 2013 to present day and as well looked the appropriateness of a conditional/absolute discharge.

Notwithstanding the personal circumstances of Ms. Eustaquio, which covered several difficult personal circumstances, Judge Fradsham determined that a conditional sentence was not consistent with the general sentencing provisions of the Criminal Code. He writes:

[71]           I am of the view that when all the factors are considered, it would be contrary to the public interest to grant a discharge to Ms. Eustaquio.  A discharge, in the circumstances of this case, would unduly undermine the immigration system as it relates to those seeking permanent residence status.  A discharge on the facts of this case would prevent the attainment of the sentencing objectives of general deterrence and denunciation.

Judge Fradsham also chooses not to follow Crown’s position and instead imposes a $1000 fine (with CDN $750 reduced due the 55 hours of community service performed.

Why this is important?

With auditing of Express Entry applications and other employer-based support letter becoming more and more frequent, it is foreseeable that there will be more cases of employers (especially where family or closely-held business) being scrutinized. While a majority of these cases will likely result in misrepresentation against the immigration applicant as the end of the enquiry, particularly where the employers are comprised of Canadian citizens and in order to denounce and deter this type of conduct, I do suspect more cases to be brought forward. Ms. E was on the generous end of sentencing – she did not seek to do this primarily out of financial gain but instead to help a family member. I don’t see as much generosity being shown where an Employer is actively reaping benefits from an individual (e.g. some sort of payment in lieu of work).

See the case here: http://canlii.ca/t/hqtzb 

Snapshot Thoughts on the Canada British Columbia Immigration Agreement 2015 – Foreign worker protection (Annex B, section 9.4)

First of all, the intention is good. It carries out an obligation from 2015. Foreign nationals in B.C. who hold an employer-specific work permit for an employer or who are authorized to work without a permit per IRPA  or IRPR now have access to foreign worker protection in the case of a real and substantial risk of physical, sexual, psychological, or financial abuse.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/temporary-residents/british-columbia-agreement.html#definition_of_abuse 

With stories of these abuse being well-documented, especially for low-skilled and precarious workers, providing a six-month open work permit to allow the facilitation of a new LMIA-based work permit or employer is a positive step compared to the usual, tedious and challenging process of trying to obtain a TRP inside Canada.

Foreign workers caught in this situation are advised to either directly contact enforcement agencies, seek the support of an approved settlement service agency (I have provided screenshots of the Vancouver ones below), or the worker can themselves approach IRCC (Vancouver) to self-report.

Vancouver Risk assessorsVancouver Risk assessors 2

Interviews with IRCC can be arranged directly with the settlement service providers.

Possible Challenges

I have to admit that the first time I read the updated instructions I read them wrong. I thought that if an agency is approached by a foreign worker in an abusive situation that they should refer them to an enforcement agency as/opposed to vice-versa. It is enforcement agency that, in practice, should be referring. It would be useful to make this abundantly clear and set out much clearer guidelines than those currently in play. Having these in additional languages (especially where we know much of the abuse occurs in the ethnic economy) would be additionally helpful.

Ironically, this type of approach reminds me a lot of the recently retired conditional permanent residence (https://www.canada.ca/en/immigration-refugees-citizenship/news/archives/backgrounders-2012/backgrounder-conditional-permanent-resident-status.html) where individuals were similarly stuck between the “to report or not to report” conundrum.

Given the complexity of provincial and federal laws around employment and human rights, even the grey-ing discussions around human rights legislation (the legal responsibility of employers over their subcontractors, etc) this could create a lot of complicated legal scenarios. I wonder personally how IRCC plans to train the authorized service providers and how the authorized service providers plan to coordinate or add capacity in these areas of law prior to making the referral.

A challenging scenario could exist in the potential following fact pattern: sex worker (who does not disclose this is her line of work – and let say says he or she is in the make up/massage business) seeks help from a settlement agency. The Settlement Agency, confused by the written instruction, makes a referral to CBSA or contacts the RCMP (assuming this policy is in play) rather than IRCC. The resulting consequence is that CBSA investigates, uncovers the sex work, and issues an s.41 IRPA) non-compliance order (per s.29(2) IRPA) and a referral is made to Immigration Division before the individual is even able to contact IRCC.

A second scenario: worker is is being debt-bondaged at work and wishes to make a claim against a recruiter/agent. The individual, because of this policy, goes to IRCC Vancouver to complain. His expectation is the instructions (and the advice of his fellow workers) that there is a provision to give a work permit to abused workers.  He does not realize that he has never seen a single copy of an immigration form filled out on his behalf. At the initial interview, IRCC uncovers that there was a failure to disclose a previous U.S. refusal on his work permit application or disclose a drunk driving offense. IRCC makes a referral to CBSA to begin the inadmissibility process.

Ultimately, putting such big responsibility in the hands of these authorized service providers or foreign workers who believe this is a clear-cut solution is going to be a challenge. If I was one a authorized settlement agency, I would be building a strong team of outside advisors and brushing up on the s.91 IRPA do’s and don’ts with respect to immigration advice.  While they are not receiving a “fee” per se, their very funding by the government or private donors (and “payment as settlement employees” could indirectly constitute immigration advice in some circumstances.  Do all these organizations now need lawyers and RCICs?

Also – what happens with this advice goes wrong? – would an individual who was removed from Canada turn back and try and sue a settlement agency. What kind of agreements or waivers are in place before the referral to IRCC (or accidentally to CBSA) is made?

What I know this move does, and as someone who has been pushing for foreign worker rights I fully support, is create the need for more expertise in the intersection between employee-side employment law, human rights, criminal law, and immigration law. Ultimately, I think we do need to create one independent think tank (be it the Migrant Workers Centre or elsewhere) to monitor this program in B.C.. Ultimately, an independent referral agency (as opposed to the settlement agencies) may be needed.

Overall Thoughts

Purely on intent, I like the idea (in theory) of providing an option for workers to safely obtain a new work permit in cases of abuse. I hope that advisors for these foreign workers do not abuse the abuse provision.

This program and it’s pilot nature (expires April 2020) is fascinating from my perspective. How does it work? Will it become a model adopted by other Provinces? Time (and trial and error) will tell.

I do hope an organization like the CBABC creates manuals and other resources to help direct what is sure to be a very complicated process.

The Immigration Consequences of ‘I Just Got Fired’

One of the major impetuses of my decision to switch practices and move to a new law firm was to shift my practice from providing advice mostly to employers to being able to provide advice to primarily employees and educational institutions that will grow future graduates.

I believe it is absolutely crucial for all temporary-foreign workers (“TFW”s) whether they are working on an open or a closed work permits in Canada to have access to independent legal advice as it pertains to their Canadian employment.  There are several benefits to this. First, I find many TFWs are not fully aware as to their different pathways to permanent residence. Many, erroneously, assume it is entirely dependent on their employer when in sevearl cases it is not. Still others are kept in the dark as businesses make plays and decisions that have direct impacts on their future in Canada. They are merely asked to sign forms and renew permits – steps that without context could lead to a lack of a full understanding of their legal rights and future opportunities.

Among these major decisions with major consequences is the termination of employment while an individual is in the process of applying for permanent residency, the issue I will examine in this article.

Two of the most common permanent residency pathways that termination of employment could affect are the (1) the Express Entry route, where there is a qualifying offer of arranged employment; and (2) the Provincial Nomination route – which in some provinces is either operated in conjunction with Express Entry or else is a separate process involving a paper-based Permanent Residence Application sent to Sydney-NS that can take a year to several years to process. For the interest of space and due to my own personal familiarity, I will deal with only the BC PNP context. Each Province may have different processes and I would encourage you to familiarize yourself with these internal workings.

Express Entry – Qualifying Arranged Offer of Employment – What Happens When I Get Fired?

One of the first things to avoid is the ‘panic.’ Too often mistakes are made when fear takes over – and inquiries are made to Immigration (especially via the call centre) or even CBSA/border officials without a plan in place.

Before packing one’s bags, it is important on a short-term basis to determine (a) whether you still have the ability to work; and (b) is there a need to obtain work in the near and immediate future vis-a-vis the Express Entry PR application.

Much of this may depend on where you are at in the PR process. For starters, if your Express Entry score is not relying on an arranged offer of employment, your termination likely means very little to your application. Your score will not be negatively affected assuming it was locked in previously at the time you made your application. There is no need to actively work while holding a work permit. Even if your work permit is tied to a specific employer your main question may be whether to try and obtain a new work permit, stay in Canada on the work permit and not work, or else apply for a visitor record so as to clearly indicate you have no intention of working and are abiding by the conditions of your temporary stay.

Several individuals who transitioned off previous work permits have access to a bridging open work permit or otherwise may be on some sort of open permit such as PGWP or an accompany spouse of a student/skilled worker. An open work permit that is not employer specific of course provides flexibility in finding new employment in the event of termination.

If, you are relying on the arranged offer of employment and it’s 50/200 points, you arguably will have to take proactive steps. Indeed, it is my more conservatively-based strategy to update IRCC within a reasonable time on the change in circumstances.

I take this strategy because of my strict interpretation of s.29(3) of the Ministerial Instructions respecting the Express Entry System (17 October 2017) to require ongoing updates. Similar to where a provincial nomination is revoked (we’ll discuss this shortly), the MIs state as follows:

Loss of offer or inability to perform duties

(3) If the offer referred to in subsection (1) is revoked or ceases to be a qualifying offer of arranged employment or if the foreign national is unable to perform the duties of the employment or is unlikely to agree to perform them, the foreign national is no longer entitled to the points assigned under subsection (1) in respect of that offer and the total number of points assigned to the foreign national under the Comprehensive Ranking System is to be adjusted accordingly.

How the adjustment is made is very material. You have to determine how your points are affected. Your example you may have been an individual selected with a draw score of 490 (50 points for arranged employment) during a draw where the minimum score was 432, for example. The 50 point subtraction in your score will have no affect on your selection. However, it is still my practice to update them proactively so as to avoid a misrepresentation finding of not disclosing a factor that could affect an Officer’s assessment. It is not my practice to gamble with the legal interpretation of ‘materiality’ of an omission where proactive disclosure would have no negative consequences.

If the score is brought below the invited score (let us assume that the individual only has 460 after the 50 point deduction), I would consider whether a withdraw can be facilitated and whether there are other points gained or that can be gained that would negate the loss and facilitate a new profile, selection, and application. Before requesting a withdrawal, it may be worth figuring out the ultimate timing of the matter. For example, I have seen several cases where the loss of employment occurred after a final eligibility decision or after approval in principle/passport request that were not actioned by IRCC even following proactive disclosure.

BC Provincial Nomination Program –  What Happens When I Get Fired?

In a BC PNP-Express Entry context, there is a similar provision to s,29(2) found in s.28 of the MIs which talk about the effect of a revoked or declined nomination.

Points for provincial nomination certificate

28 (1) Six hundred points may be assigned to a foreign national if they are named in a nomination certificate referred to in paragraph 87(2)(a) of the Regulations that is issued by the government of a province referred to in paragraph 2(d) of these Instructions and the nomination has been

  • (a) verified by the province; and
  • (b) accepted by the foreign national.
Nomination revoked or declined

(2) If the nomination certificate is revoked by the province that issued it, or if the foreign national declines the nomination, they are no longer entitled to the 600 points under subsection (1) in respect of that certificate and their the total number of points assigned to the foreign national under the Comprehensive Ranking System is to be adjusted accordingly.

BC PNP nominees are currently given documents upon receiving their nomination that clearly set out their responsibilities, including updating BC PNP upon any loss of their employment.  Failure to do so could lead to revocation of the nomination.

BC PNP work permit holders who are doing paper-based applications that can take over a year and often times multiple years can often be particularly susceptible to loss of employment. Companies make a lot of decisions over a year that can affect the allocation of staff and, in particular, the future of their foreign workers.

Generally, when a skilled worker or international graduate is nominated, they are provided an R.204(c), T-13 -based work permit support letter from the Province. This can be used to support an employer specific work permit and/or work permit extension. The other option is an R.205(a) Bridging Open Work Permit (BOWP), but because of the timing of getting together a full permanent residence application and acknowledgment of receipt can be challenging, many opt for the safer first option. There is, of course, an underlying benefit to submitting a BOWP in that as an open work permit, transition to another employer (and perhaps even to another employer who can support a transfer of nomination certificate) would be easier in the event of termination. Working for an employer not listed on your work permit is an immigration violation that can lead to exclusion from Canada for a period of one year.

For BC PNP, the process is more facilitative if the Nominee is diligent in communicating with the program officer relating to the termination. Many officers have given ample time for a new employer to be arranged and for the nominee to figure out a new pathway. BC PNP also has been very supportive where a nomination/support is pulled by the employer late in the process.  is The validity of a nomination, the very basis of one’s permanent residence, is a very material and that termination would require proactive disclosure. I have had clients disclose prior to landing and while it does require a quick confirmation call between IRCC and BC PNP, where BC PNP indicates they are supportive of maintaining the nomination, this has created no issue.

Failure to disclose on the other hand could create challenges. Whether it be in a future sponsorship, PR renewal, support for a family member’s visitor visa, there would be more than a few places where one’s undisclosed termination could emerge to IRCC’s attention.

 

Seeking Independent Advice – Employment Counsel

I often refer my clients who have been terminated to also seek. There are cases such as Nishina v. Azuma Foods (Canada) Co. Ltd 2010 BCSC 502 where an employer’s conduct vis-a-vis immigration status affected damages awards. I have been involved in a few cases where the termination of an immigrant employee was wrongful. Some clients will choose to pursue their claims while others will pursue to focus on pursuing new employment. However, if a matter goes to litigation, it would be important for non-immigration practitioners (and the Court) to know the scope of the immigration consequences.

Why are Employee’s Post-Termination Immigration Options Increasingly Important?

With IRCC and the Federal Government now putting in resources into assisting foreign workers, I suspect that this will balance out an employer compliance regime system that does not, in my opinion, adequately involve the foreign worker. I would suspect that in addition to the possibility of increased civil litigation, remedies may be sought at employment and human rights tribunals. Increased penalties from Employer Compliance may ultimately go to funding some of IRCC’s efforts in protecting vulnerable workers or, I hope, resources to fund greater resource sharing so that employees know their legal rights prior to engaging in precarious employment.

Questions or comments? Recently terminated and wondering about your next steps? Email me at will@edelmann.ca

No Reason For No Reasons – Cruelity in the Case of In-Canada Spousal Refusals

A fundamental principle of natural justice/procedural fairness is that an applicant should have knowledge of the case against them, especially in the context of receiving reasons for refusal. Procedural Fairness requires that applicants know within a refusal why their application was refused and what sections of the law applied.

In my own practice, and at an alarming rate, I have started to see In-Canada spousal sponsorship refusals made often times several weeks/months after the initial interview that do not include anything other than boilerplate refusal language. Indeed, often times the boiler plate language does not even cover the full/actual grounds of refusal. No case-specific analysis is provided.

Several of these individuals have confided in me that during the interviews specific grounds of concern are never even raised and that they had no clue following the interview that credibility, evidence sufficiency, or even the bad faith provision of IRPA was even a concern.  While case law tells us there is no requirement for a “running score,” many times these sponsors and applicants have no clue what the score even is.

In an inland setting, Officers generally write longer refusal decisions than in typical visa office cases where often times a copy of the interview is merely inputting into Global Case Management System (GCMS). These decisions often span several pages and include interview notes highlighting the responses of both Sponsor and Applicant (who often are interviewed together), the Officer’s handwritten notes, and a final written decision. None of this, as Immigration’s general practice, is disclosed to the Client during the refusal process.

In various contexts, although I wish it weren’t that way, it makes sense that detailed/case specific reasons are not made available to Applicants in writing at the time of a refusal. For example, for the volume of study permits and temporary residents that some overseas visa offices process, it would be unduly burdensome for each to write varied, case-specific reasons into the decision. However, even in these cases there is often detailed reasons or else a checklist with boxes ticked off. This baseline reasoning is absent in a majority of the in-land refusal letters I am seeing.

The Applicant only has 15 days to file judicial review from the notice of a failed In-Canada Spousal Sponsorship on the basis that the decision made was unreasonable or not procedurally fair. In most of these cases where reasons are not provided, a judicial review becomes automatic because there is simply no clue as to why the application was actually refused.

In an overseas spousal sponsorship, an Applicant could reasonably get a copy of the reasons for refusal through Access to Information. More importantly, there is a statutory right of appeal provided.

Other than the fact that there is no statutory right of appeal in an inland context, the other challenging factor is that many of these individuals choose inland because of some challenge maintaining status in Canada or a possible inadmissibility concern. One would think that in this context a heightened level of procedural fairness (per Qin/Baker framework) would require greater disclosure than what is currently being provided. Indeed, in an outside Canada spousal interview, there is usually a portion of the interview dedicated to the Officer putting a list of concerns directly to the Applicant near the end of the interview. I have seen this rarely followed in parallel Inland cases which mirror more a fishing expedition.

I call on IRCC to change their current practice/policy to ensure that all In-Canada Spousal refusals receive detailed reasons for refusal that allow them to properly consider actions of recourse: be it reconsideration, judicial review, or filing a new outside Canada sponsorship.  At the very least, the Officer’s detailed written decision should be attached – much like it is in the context of an H&C or PRRA decision. Procedural Fairness suggests that this should be the correct process. The expensive and burdensome process of litigation and ATIPs (in many of these cases) can also be avoided through more transparent decision-making.

*Ps. practice tip = Applicants and their counsel should and can follow-up to ask for written reasons from the Tribunal (decision-maker) in this context. Often times the written reasons will be sent/faxed shortly thereafter.