Category Archives: Migrant Workers and Canadian Law

This blog examines migrant workers in the context of Canadian Law

Are we R.228-ing too many R.229s? – New COVID-Based Quarantine Act Inadmissibility and the Case for Procedural Fairness Amid Changing Administrative Efficiencies

Introduction

I did an earlier-COVID post about the criminal inadmissibility consequences of the Quarantine Act. In today’s post I want to update the Government’s approach here but also bring a larger critique – that we should be advocating for the right of foreign nationals to access the Immigration Division (R.229 of the Immigration and Refugee Protection Regulations [IRPR]) where it is clear their case requires a balancing of evidentiary facts and greater (if still minimum by administrative legal standards) procedural fairness.

I see a worrisome trend of addressing (ramming) new inadmissibility through CBSA Minister’s Delegate [R.228] because it is administratively convenient. As technology improves and the ability of more hearings to be run administratively efficiently, is it still fair to deny foreign nationals at the heart of these matters, the ability to have an independent decision-maker preside over their cases and to present their full evidence?

The New Inadmissibility – Violation of Emergencies Act or Quarantine Act

On 20 April 2020, the Federal Government introduced a new inadmissibility for foreign national (visitors, students, and workers) who violate the Quarantine Act.  

The change adds an inadmissibility under s.41(a) of the Immigration and Refugee Protection Act (“IRPA”) and does so by also creating automatic inadmissibility for any Foreign National with a Quarantine Act conviction.

22.1 For the purpose of determining whether a foreign national is inadmissible under paragraph 41(a) of the Act for having failed to comply with the condition set out in paragraph 43(1)(e) or 183(1)(d) of these Regulations, if the foreign national has been convicted for having contravened an order or regulation made under the Emergencies Act or the Quarantine Act, the facts on which the conviction is based shall be considered to be conclusively established.

This operates through the adding of a General condition under s.183(d) which applies to all temporary residents:

General conditions

  •  (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;

    • (b) to not work, unless authorized by this Part or Part 11;

    • (b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;

    • (b.2) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer referred to in any of subparagraphs 200(3)(h)(i) to (iii);

    • (c) to not study, unless authorized by the Act, this Part or Part 12; and

    • (d) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

The law also applies by way of adding a condition under Regulation 43(1)(e) in the context of continued examinations under s.23 IRPA.

Conditions

  •  (1) An officer must impose the following conditions on every person authorized to enter Canada under section 23 of the Act:

    • (a) to report in person at the time and place specified for the completion of the examination or the admissibility hearing;

    • (b) to not engage in any work in Canada;

    • (c) to not attend any educational institution in Canada;

    • (d) to report in person to an officer at a port of entry if the person withdraws their application to enter Canada; and

    • (e) to comply with all requirements imposed on them by an order or regulation made under the Emergencies Act or the Quarantine Act.

It is important hear that the IRPA imposes an obligation beyond the criminal context, to require compliance with ‘all requirements.’ There are several Quarantine Act requirements that do not directly attach a conviction for. Furthermore, this brings into the realm of immigration inadmissibility several convictions found in s.67-72 of the Quarantine Act that would not have rendered a foreign national inadmissible by way of a sole summary offence conviction.

There are major questions of its overbreadth and as well whether the inadmissibility will be disproportionately pursued against low-skilled workers working in fields such as agricultural, largely at the whim of the direction of the employer or their agents. While there are also employer compliance issues (which this piece will not explore) it is foreseeable that a wrong of the employer could be attached to the employee by way of inadmissibility.

The Regulatory Impact Analysis Statement acknowledges as much in what I still feel is a severely short assessment:

Gender-based analysis plus (GBA+)

The power imbalance inherent in most employment relationships is intensified for foreign workers as a result of their temporary status in Canada, and in the case of employer-specific work permit holders, the conditional nature of their authorization to only work for one employer. This imbalance can be further exacerbated by factors such a lack of proficiency in English or French, lack of knowledge of their rights, and misinformation. Gender and intersectional factors (e.g. age, race, low-wage level) may further increase vulnerability to workplace abuse.

One of the policy objectives of these regulatory amendments is to protect temporary foreign workers to help ensure that they are not put in situations where they are at risk of being infected by COVID-19 and/or at risk of infecting others. The proposal is expected to safeguard against an employer encouraging a worker to violate any requirements under the Quarantine Act or the Emergencies Act.

Colour me sceptical but I do not see how putting punitive immigration consequences on foreign workers protects temporary foreign workers. I do see individuals who are racialized and in low-paying jobs (with assumed lower levels of language ability and presumed less shelter-at-home circumstances) being subject to greater surveillance and immigration consequences.

 

No Referral to the Immigration Division

Where I think this provisions steps into the line of being a major problem in my perspective is is listed as a R.228 IRPR inadmissibility rather than as a s.229 IRPR admissibility.

11 (1) Subparagraph 228(1)(c)(v) of the Regulations is replaced by the following:

  • (v) failing to comply with subsection 29(2) of the Act as a result of non-compliance with any condition set out in paragraph 183(1)(d), section 184 or subsection 220.1(1), an exclusion order,

(2) Paragraph 228(1)(c) of the Regulations is amended by adding “or” at the end of subparagraph (vi) and by adding the following after that subparagraph:

  • (vii) failing to comply with the condition set out in paragraph 43(1)(e), an exclusion order;

The difference between R.228 and R.229 IRPR is that R.228 IRPR allows a Minister’s Delegate of the Canada Border Services Agency (including at the Port of Entry) to issue an exclusion order.

Subsection 44(2) of the Act — foreign nationals

 (1) For the purposes of subsection 44(2) of the Act, and subject to subsections (3) and (4), if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division…

R.229 inadmissibilities require the Minister Delegate to refer the matter to the Immigration Division (ID):

Paragraph 45(d) of the Act — applicable removal order

  •  (1) For the purposes of paragraph 45(d) of the Act, the applicable removal order to be made by the Immigration Division against a person is

At an Immigration Division hearing, the burden of proof is on the Minister to prove that the person concerned is inadmissible to Canada. The ID Member who makes a decision is a third-party, impartial decision-maker. They are obligated to assess the submissions and the evidence submitted by the person concerned.

In a Minister’s Delegate-issued removal order, evidence is assessed but the MD’s are acting on the arresting officer, other law enforcement/public authorities, and other interviewing inland enforcement officers to render their decision. They are carrying out the decision effectively “in-house” thus eliminating a real need for additional procedural fairness (opportunities to respond) or in many cases adequate opportunities to provide further evidence. Most clients have no counsel for MD-issued removal orders and counsel are often given limited ability to advocate in this setting.

 

Continuing a Recent Trend of No Justification

One of the problems as well is that the RIAS does not provide further justification on why the inadmissibility was chosen for s.228 and not s.229.

The RIAS merely repeats four times a state similar to this:

The Regulations provide the authority for the Minister of Public Safety or the Minister’s delegate to issue a removal order for non-compliance with the new conditions that require compliance with an order or regulation under the Quarantine Act or the Emergencies Act, once a person has been found to be inadmissible. 

The last inadmissibility added – in February 2014 (effective June 2014) for non-compliance and not actively pursuing studies (IRPA s.29(2) x. s.41(a) x IRPR s.220.1) also contained similar language in it’s RIAS.

The Regulations allow for issuance of a removal order by delegated officers in circumstances where students are not complying with new study permit conditions, rather than being referred to the Immigration Division of the Immigration and Refugee Board for a hearing.

In the international student context, this led to border officers removing international students for one-day trips to the United States during studies, poor grades, and until recently, as secondary admissibilities to inland admissibility investigations/matters (allegations of criminality, misrep, etc.).

I think a question needs to be legitimately asked about why two admissibilities both of which go against the usual R.228 black and white assessment (e.g. are expired permits – overstay, not holding required immigration document, failing to appear for examination, criminal conviction inside Canada as examples) are being put in the same box.

Given the limited application (at least documented) of the Quarantine Act as we explored last blog, should not an independent decision-maker who develops specific expertise to assess evidence be required? What happens if the allegation is not based solely on a conviction but actually on an issue such as the truthfulness of a disclosure or response (s. 15 -s.16 of the Quarantine Act). How would these proceed without witnesses and the type of evidentiary disclosure needed?

Remember when we frame this issue, we also look at the primary elements of procedural fairness as set out of by IRCC.

https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/procedural-fairness.html 

The right to be heard or the right to reasons is not too hard in the context of an individual who violates a clear law on the face, but this law is far from clear and arguably with construction that is far from perfect.

It is my hope that it is used infrequently and that we move through this COVID period with discretion and seeking understanding before applying punitive measures, but we have seen in the ways that fines have been levied for COVID offences generally that this has not been the case.

In the interim, we need to hold the Government to account to explain and justify why the Immigration Division could not have been given jurisdiction to issue the removal order.

Immigration Division

One of the main arguments for an R.228 removal in administrative efficiency. The idea being these issues are so important and emergent that they need to be dealt with quickly, and possibly even at the Border.

With COVID one of the things we are seeing is an improvement in the ability to hear cases virtually or leverage technology to make things more efficient. Subject to the very important aim of giving individuals the right to an oral hearing (and ideally in person) particularly in the context of long-term detainees and refugees, I don’t see why the administrative efficiency argument still stands.

Post-COVID I expect that we will see many more hearings (including admissibility hearings) operate via online video conferences. These conferences can include the ability to share and provide evidence quickly, disclose immediately, and likely timelines can be shortened for scheduling. With all these things, what is the continued justification for not referring cases that do require an assessment of evidence to render a reasonable and fair decision?

Judicial Review as a Possible Outcome

Unfortunately, if there is unfortunately a second wave or if the Quarantine Act becomes engaged increasingly for inadmissibility, I suspect that we will have quick removals and unfortunately little basis for stay of removals. For workers, it is likely that inadmissibility would also sever the employer/employee relationship removing the argument they likely had for significant harm. Students and Visitors will probably have similar difficulties establishing significant harm in most cases if their entry was for studies or family-based visits (which are already being scrutinized).

Ultimately, I believe we will probably get poorly justified removals that will require judicial reviews to sort out. However, unlike the actively pursuing studies provision of R.220.1 IRPR which the Federal Court has generally upheld in reported decisions, I think the Quarantine Act will be much more difficult to navigate. There are also holes around issues such as overbreadth and vagueness, and certainly procedural fairness issues, that will emerge in such litigation.

I am interested to see how this will all pan out. If you  have a case on the basis of this new inadmissibility, I am eager to hear from you: will@edelmann.ca

Take care and stay safe!

 

Implied Status Student/Worker in B.C? – B.C. Government Extends Temporary MSP (you need to contact Health Insurance BC)

In a welcome announcement today, temporary MSP has been extended to those with expired student and work permits (i.e. on implied status). This temporary MSP will be effective until July 31, 2020.

See Below:

Q2. What if my temporary permits have expired and I no longer have MSP coverage?

In response to COVID-19, individuals who are currently in B.C., who were previously enrolled in MSP as a deemed resident, and their MSP has expired, may be provided temporary MSP coverage.

Individuals should contact Health Insurance BC to request this temporary coverage.

Health Insurance BC

Toll-free: 1 800 663-7100
Lower Mainland: 604 683-7151

Mailing Address:
Health Insurance BC
PO Box 9035 Stn Prov Gov
Victoria, BC V8W 9E3

This may include individuals who have applied for a new work or study permit but it has yet to arrive.

In these circumstances temporary coverage will be granted until July 31, 2020.

The link for all the changes is here: https://www2.gov.bc.ca/gov/content/health/health-drug-coverage/msp/bc-residents/covid-19-msp-qa

What is very important is that you have to call or mail in (it appears) to engage this coverage. 

So do it quickly and tell your affected friends.

I want to take this time to especially shoutout (there are many important people doing important things during the COVID-19 pandemic so this group often gets missed), the low-wage (and poorly defined by our system as low-skilled) temporary foreign workers who are putting themselves at risk, working jobs we do not work, in order to help a country that often has not reciprocated their help. I hope this whole situation and recognition of who is doing the labour, leads us to consider ways we can provide pathways to permanent residence and citizenship for our ‘essential’ workers.

Five Tips for Immigrants to Protect Themselves Against the Media’s White Gaze

“Our lives have no meaning, no depth without the white gaze. And I have spent my entire writing life trying to make sure that the white gaze was not the dominant one in any of my books.”

– the late, honoured, Toni Morrison

I read a lot of stories and news reports involving migrants and newcomers. A lot.

I also am very conscious of those who are writing those stories and are not immigrants or the direct descendants of immigrants themselves. I’m speaking particularly about white people. If this makes you feel somewhat uncomfortable, I have a recommended read before you continue on here.

Whether sub-consciously or not, white people write about the coloured bodied or immigrants in a different manner than those lives are experienced by those who share their stories. There are different variations of how this looks. For some it is in condescension, others exoticism, others in a sympathetic-leaning white knight or virtue signal. There are other writers who ostracize, criticize, and expose colour and migrant lives in a way that they would never dare do to a leading business person, politician, or celebrity. Perhaps it is the fear of lawyers or the open vulnerability of migrants, yet this is a growing concern and one that needs to be addressed on a more systemic level. From the U.S. cheating scandal where there was a clear difference in treatment shown between writing about the celebrity actresses and the wealthy daughter of Chinese migrants, to the overwhelmingly graphic details of her life and upbringing to the constant stories of migrant and coloured wrong-doings that splatter across front pages in this countries – I notice it as a visceral reality.

This week I have been looking a bit at the way Courts want to open document transparency and how media is taking an active role in trying to open up migration cases to the public’s attention. Indeed, a local journalist recently tried to open up a refugee hearing, a private proceeding meant to protect the identity of a claimant, in order to try and get the details of a gory crime to the public. These migrant scoops  serve a public appetite for those who are not us, here with us, doing things we would like to admonish them for doing. They are a white Canadian gaze on a increasingly changing definition of Canada, and a fear of losing it’s historic ‘whiteness’ particularly in mainstream media. I can’t blame the authors and I am not blameless. I too actively do work that profit off migrant mistakes, a stark reality of the colonial work that pays my bills and rent. Media, as an institution, unfortunately also does the same.

 

Why Migrants Should Be Careful Giving Media Interviews

In the past, I have provided my perspective on why Media Must be Cautious Covering Individual Immigration Cases

Today, I will change this to the migrant perspective. I have deep concern that migrants, in attempting to feed the narratives of journalists, are exposing themselves to not only personal risk but also compromising their own immigration status in Canada. I have a few pieces of advice for migrants, newcomers, refugee claimants and others who might be facing this double vulnerability.

TIP #1:  Recognize Journalists are (Generally) Not Your Friend – They Are There to Make News and Gain Views

This is the starting point. I am able to provide interviews now (including some I openly regret giving) to try and provide a voice for migrant communities. However, I am not a migrant myself and am not at risk when I speak and share experiences. When you are an international student, when you are on a work permit, when you are making a refugee claim – your voice is tied innately to your immigration status. Your published name alongside your transgressions is enough to have attention drawn to your immigration file from authorities.

Part of the work journalists are increasingly engaged in is advocacy. Their primary goal (other than sales and readership) is to try and gain market share of a topic. Several local journalists have gained notoriety by exposing wrongdoing and having their work lead to changes in Government policies. While much of this may have great long-term implications, the short-term implication may be use of you as a poster-person for a problem.

Remember, not all exposure in the context of vulnerable persons – is good exposure.In some cases, journalists may be in fact looking for a migrant voice to express disdain/anger towards other members of one’s own community. Particularly in this day and age where expressing one’s own non-popular views comes under heavy scrutiny (particularly around issue of race/status), it is a common journalist trick to get someone else to say it or better yet – someone within the same target community.

It is not all negative. There are several cases where the media have been able to put external pressure on the Government and encourage them to stop removals and grant extraordinary relief. In most those cases, there was some active litigation or strategy incorporating the media. These cases did not come from the mouths of individuals being interviews as part of some pending investigation.

I know saying no is difficult. Many of us are enthralled by the opportunity to be on TV – but think twice before agreeing to be in the media and expose your life to the media’s gaze.

 

TIP #2: Misrepresentation Doesn’t End at PR

One of the things I have seen recently is several immigrants, with their published legal names, admitting to having paid for their jobs or to working excessive hours in order to qualify for permanent residence. In some of these cases, it appears that the individuals have now obtained permanent residence and possibly even citizenship.

An individual admitting that he or she may have paid for part of their qualifying work experience can have major impacts on permanent residents and even citizens who obtained permanent residence on the basis of this information. Paying for one’s job or receiving support from an employer to falsify duties would be considered material misrepresentations that have a direct impact on the assessment of a permanent residence application. Many of the large scale frauds in which permanent residents are finding themselves  Immigration Appeal Division involved third-party/employer wrongdoing.

Remember that s.40 of the Immigration and Refugee Protection Act covers both foreign nationals and permanent residents:

Misrepresentation

  •  (1) A permanent resident or a foreign national is inadmissible for misrepresentation

    • (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

    • (b) for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;

    • (c) on a final determination to vacate a decision to allow their claim for refugee protection or application for protection; or

    • (d) on ceasing to be a citizen under

      • (i) paragraph 10(1)(a) of the Citizenship Act, as it read immediately before the coming into force of section 8 of the Strengthening Canadian Citizenship Act, in the circumstances set out in subsection 10(2) of the Citizenship Act, as it read immediately before that coming into force,

      • (ii) subsection 10(1) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act, or

      • (iii) subsection 10.1(3) of the Citizenship Act, in the circumstances set out in section 10.2 of that Act.

  • Marginal note: Application

    (2) The following provisions govern subsection (1):

    • (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and

    • (b) paragraph (1)(b) does not apply unless the Minister is satisfied that the facts of the case justify the inadmissibility.

  • Marginal note: Inadmissible

    (3) A foreign national who is inadmissible under this section may not apply for permanent resident status during the period referred to in paragraph (2)(a).

  • 2001, c. 27, s. 40

  • 2012, c. 17, s. 17

  • 2013, c. 16, s. 16

  • 2014, c. 22, s. 42

  • 2017, c. 14, s. 25

For citizens too, when an individual obtains permanent residence and later citizenship by virtue of this fraud, revocation proceedings that be initiated. It is a little difficult to trace with all the Citizenship Act amendments but a good summary is below:

Status of a person post-revocation

If the person’s citizenship was revoked due to false representation or fraud or knowingly concealing material circumstances during the citizenship process only (e.g., lying about residence in Canada during the relevant period), the person becomes a permanent resident as per subsection 46(2) of the Immigration and Refugee Protection Act (IRPA). Revocation in such situations does not itself jeopardize the right of the person to remain in Canada; however, the person must meet all obligations under the IRPA. For the residency obligation under the IRPA, the five-year period begins on the date the person becomes a permanent resident. If the person’s citizenship was revoked on the grounds they became a permanent resident by false representation or fraud or knowingly concealed material circumstances, the person will revert to foreign national status. If the false representation or fraud or concealing of material circumstances was with respect to a fact described in sections 34, 35 or 37 of the IRPA, the Federal Court, in certain cases, may also declare the person inadmissible and issue a removal order.

If the person is a dual citizen and the person’s Canadian citizenship was revoked due to convictions for terrorism, high treason, treason, or spying offences, depending on the sentence received, or for serving as a member of an armed force of a country or organized armed group engaged in armed conflict with Canada, the person becomes a foreign national.

If the person, who is a foreign national, is in Canada once citizenship has been revoked, the person is in Canada without status. The person may be reportable under subsection 44(1) of the IRPA and may be subject to removal from Canada.

In short, there are major implications of disclosing something so seemingly innocent as confirming a history of having been exploited. It is a double-edge sword that applicants face which makes it pertinent that proper advice is obtained before publicly speaking on these types of issues.

 

TIP #3: Know about the Process of Contacting CBSA Criminal Investigations and Applying for Work Permits for Vulnerable Persons

There are many options for workers and other individuals who have been abused and taken advantage of. This includes work permits for vulnerable workers and for victims of family violence.

Many individuals also unaware that Canada Border Services Agency has a Criminal Investigations program that operates as an arms length investigation where there is fraud, criminal activity, and other sensitive situations that may require further investigations. While they cannot provide immigration relief – they may be much more sensitive than the media may be around your personal situation. Of course, adequate legal advice should be sought before approaching CBSA Criminal Investigations – which may involve a more holistic review of your immigration status in Canada, weighing pros and cons of approaching Criminal Investigations. There may be some benefit to making a written affidavit statement before approaching authorities to set out the material facts. See also Tip 5 below.

 

TIP #4: Know that  IRCC/CBSA Tracks the News

Immigration (IRCC) reads the news. Indeed, that is how much of their programming responds to changes – through gathering feedback from social media (Twitter), reading news stories, and meeting to discuss them. If your name is part of an expose, you can best believe you are on IRCC’s radar. From my perspective, until you  understand the legal ramifications.

I still remember one time I was outside CBSA (unable to enter the detention center because it was full) and tweeting about it. Before I could even enter, the Senior Manager came out and said he recognized the problem and saw my tweets.

I have been able to leverage social media somewhat successfully to push change but I can tell you that the analysis, the criticism, and the choosing what to say and what not say is an art. When your name is provided to a journalist for the front page – that control is now out of your hands.

In admissibility hearings, the filing of newspaper articles as evidence before the Immigration Division and Immigration Appeal Division is very common. Your own words and actions could create challenges for you down the road, particularly when you try to introduce new evidence and sworn testimony.

 

TIP #5: Seek Independent Legal Advice

I recommend that every migrant asked to speak to the media about their personal situation and in doing so disclose sensitive personal information take adequate steps to seek independent legal advice. This advice can guide you as to whether there can be some advocacy benefits to media. A legal advisor can also help you determine whether your personal immigration matter requires steps such as confidentiality motions in Federal Court, simplified procedures for anonymity, or applications for private proceedings (among other steps).

I do hope that more institutions exist on both sides – not only to try and push more nuanced journalism and train on some of these ethical issues for journalists, but also to utilize some of that knowledge to provide media training for newcomers and migrants. It would also be beneficial for more established organizations, unions, and support networks to consider helping shield individual migrants where necessary or provide media spokespeople/translators to assist.

 

Conclusion

I am a friend of the media and consider many journalists friends, supporters, and colleagues. I support open transparency and generally am glad that our democracy is one where we can talk about the crevasses. Ultimately, I think the more we talk about rather than ignore issues of migrants, the better our collective understanding will be and the barriers that exist between us will be broken down.

I also know that much of what journalists do may not be conscious. It may not be a product of their own ill-beliefs or fantasization about migrants but rather the economics of the newsroom or the culture of seeking the strange or exotic. I expect (and hope) many of my journalist friends will be taken aback by my words, start justifying by stating they have a spouse who is a POC or that they are a POC themselves, and they would never do that. I’m going to say that we all do this – and this is the norm. We do not offer newcomers, migrants, and marginalized community the same expectations of privacy, representation, and voice that we do those we work with, befriend, and hold to higher authority. This is a historical and naturalized human response.

Whether we can unlearn it and choose – on occasion – to put our own careers and scoops on the side to allow an interviewee to seek legal advice or community support before speaking to us – is how we will demonstrate how far we can go to changing the role of journalism as projecting society’s white gaze.