Panellist Will Tao, a lawyer at Edelmann & Co. Law Offices in Vancouver, worries that international graduates or students have the most trouble advocating for themselves, and are unable to access the benefits on offer because their immigration status plays a role.
“I’ve heard from a lot of research assistants personally who had jobs and grants during the summer, and who had those unceremoniously cancelled because there are some of the stigmas around who are we helping in times of crisis,” says Tao.
Some students rely upon transfers from overseas accounts, says Tao. They may have been cut off, or can no longer get support from their families in the middle of their studies. They are now facing the challenge of extending their permits.
“Many of these issues are going to become more pronounced as we move forward, and these are almost not necessarily travel ban issues,” says Tao. “But they are things we will see the consequences of in the months and years to follow.”
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
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:
183(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
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
228(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
229(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. areexpired 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.
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.
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: email@example.com
While we rush to seal our loosely-defined borders and legal exceptions, let us not lose sight of the reality of who it is ‘doing the work‘ as low-paid essential service workers in Canada – temporary foreign workers (TFWs). Accordingly to a Government of Canada official, over 60,000 temporary foreign workers have come to Canada to work in our agriculture and agri-food sector.
I begin this piece by rejecting the term, ‘low-skilled.’ Anyone who at times like these is contributing putting food on to our table and taking care of immunocompromised seniors at senior’s home and care facilities, I hold to the highest esteem.
From 2019 Open Data, we know Canada and British Columbia’s are coming from five countries – Mexico, India, Jamaica, Philippines, and Guatemala. Asides from the correlation that they are all from the Global South, they also all represent countries where racialized folk – brown and black – are primarily entering Canada to do the work Canadians are not doing. While I understand some are floating around the idea of a national work program to get Canadians into these positions over TFWs, we must admit the reality that the exposure of risk to COVID-19 of this work (not to mention the low pay) would drive most away. This reality also creates a contradiction that Chris Selley questions in the subheading for his recent National Post article titled, ‘Ottawa’s plan for quarantining temporary foreign workers is more bizarre than comforting,’ where he writes:
If we can identify a group of people without whose labour we literally wouldn’t be able to feed ourselves, why are we denying them a path to citizenship?
I share the same question. Through this pandemic we have already had one TFW outbreak at a Kelowna greenhouse/nursery and countless stories of senior home outbreaks which make up half of Canada’s confirmed deaths from COVID-19. We have not said so much of a thank you, other than discussion of how to quarantine them effectively upon entry and pay back employers for lost wages.
However, worse yet, we’ve been left an invisible image of who these workers are, what their races are, and their migration histories that have led them to heed the call into action. While we are all in this as Canadians, I am eager to know who these individuals are and eventually reward them with pathways to permanent residence or at the very least create new pathways that honour that work.
Indeed, if we are putting racialized migrant workers on the front lines of COVID-19, I argue we should putting these same migrant workers in the front line of new immigration programs to facilitate their transition as permanent residents.
The Invisibility of Canadian Racism and the Misapplication of Intersectionality
However, there appears to be preferred invisibility – something that runs deep when it comes to issues of immigration and race in this country.
The Canadian Government approach to immigration continues to be one that on the outside adopts a Gender Based Analysis (“GBA”)+ framework that states an intention to take into account intersectionality, but a reality that race is the unspoken, untouched, undelved into dark space – a Pandora’s Box.
IRCC does not collect data on religion or race.
Zoomed in, in case the footnote is hard to see:
We know only what countries applicants are coming from, not who they are by way of their race, ethnicity, and colour, and how discrimination factors into visa refusals and availability of pathways to permanent residence. We know anecdotally from client experience and those cases that end up published as case law that visa officers discriminate against individuals from minority racial/ethnic groups, particularly when the visa office responsible for processing the applications is not located in the same country.
How are we purportedly taking into GBA+ if we have not looked further at what the + entails. How can we claim to even be applying an intersectional lens?
The GBA+ touts itself as applying an intersectional lens in various Government training materials, but one questions how Kimberlé Crenshaw would view this given her conception of intersectionality was focused on the intersections of gender (yes), but very and just as importantly class, and race.
Currently, proposed regulatory and legislative amendments do go through a GBA+ lens through Part 1 of the Gazette Regulatory Impact Analysis Statement (“RIAS”) stakeholder feedback process but this process is primarily based only on Gender, which itself is a primarily a supplement to other economic and resource considerations. No one asks in these pieces how racialized communities of women or non-binary folk will be affected, nor are most organizations who will provide feedback putting racialized or non-binary gendered migrant communities at the centre of their analytical lens. The centred lens on immigration continues to be white and able-bodied, from it’s legal practitioners to the immigrants held in the highest demand and sought after.
Furthermore, the very idea of intersectionality has been to view the different social categorizations as separate and distinct boxes for us to parse ourselves into, rather layers and true intersections – a mistake we continue to repeat in our misclassification and misapplication of the term.
Colourblindness as a Racist Policy
Ultimately, without identifying race as an important social stratification, that centres other discrimination – which could include language, migration status, and gender – we remain stuck in colourblindness.
You may have heard about colourblindness recently with respect to COVID-19. In the context of COVID-19, Ontario’s chief medical officer of health, Dr. David Williams, recently stated:
“Right now we consider our main risk groups (to be) the elderly, those with other co-morbidities, regardless of what race they are,” he said. “Regardless of race, ethnic or other backgrounds, they’re all equally important to us.”
But what got us to this colourblind (regardless of race) approach? What got us to normalize the one human race (we’re all the same) theory?
Writer Ibram X. Kendi explores the foundation of racism as a mode for power holding, and writes poignantly in his book, How to Be in An Anti-Racist at page 10:
“The common idea of claiming “colorblindness” is akin to the notion of being “not racist” – as with the “not racist” the colorblind individual, by ostensibly failing to see race, fails to see racism and falls into racial passivity. The language of colorblindness – like the language of “not racist” is a mask to hide our racism”
Constance Backhouse, whose seminal work, Colour-Coded: A Legal History of Racism in Canada, 1900-1950, on the history of racism and the law in Canada, similarly examines how immigration help served to help aggrandize white power. She writes:
“Immigration laws shaped the very contours of Canadian society in ways that aggrandized the centrality of white power.” (Backhouse, at page 15)
She provides example in her book many instances where the lines between races were either purposely blurred, combined, or in some cases written out, to achieve this power. In my perspective, colorblind is not only a neoliberal feel-good strategy, but a tool that has been used historically to justify racist policies.
For example, Canadian Immigration laws led to the closure of borders for Asian and Black immigrants in the first half of the 20th century, while anti-immigrant sentiment and racist legislation severely policed and controlled communities from being able to operate businesses (for example laws preventing the hiring of white women) and adding restricted covenants preventing them from owning property (just to name a few examples):
Laws such as B.C.’s above An Act for the Protection of Women and Girls in certain Cases (which was in place until 1968) were indeed purposely amended as a result of criticism that it was too critically aimed at the Chinese community, and replaced with more universal language with the same intentions and substantive effect.
The law was colourblind, and by today’s Charter standards, a claimant would therefore need to ‘do more’ to prove it was indeed racist, but we know from the history it most definitely was. I would argue that the assumption that we have stepped out of racism due to legal reform is a dangerous myth and one we must continue to breka down.
True s.15 of the Charter, formally added equality rights that were supposed to apply regardlessof “race, national or ethnic origin, colour,” language mirrored by other employment and human rights legislation. There were historical apologies and reparations, but I would argue there has never been a race equity lens applied to immigration law – to study, if you so well, of whether and how laws continue to discriminate against racialized marginalized communities.
Built Off the Back of Coloured Bodies
Applicants who have tried to bring racism up in Courts (environments that bluntly speaking do not at all reflect Canada’s racial diversity), have faced significant evidentiary hurdles. One thinks of the Federal Court of Appeal’s decision in Begum v. Canada (Citizenship and Immigration),2018 FCA 181 (CanLII),  2 FCR 488, which upholds the higher burden on claimants where the a law applies neutrally on its face, and simultaneously criticizes a lack of specific evidence on race, where as we have seen none is being collected from official sources, leaving case studies and academic formulations the only current pathway forward (both of which the Court criticized).
At the same time we have seen our case law build up various areas off the backs of racialized individuals. Using humanitarian and compassionate grounds as just one example, the leadings cases in this area involve Black Jamaican woman, Ms. Mavis Baker, where the visa officer wrote blatant racist marks into the applicant’s file [Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC),  2 SCR 817], a Black Jamaican woman, Ms. Daphney Hawthorne [Hawthorne v. Canada (Minister of Citizenship and Immigration), 2002 FCA 475 (CanLII) that helped define the scope of the Best interest of the Child (“BIOTC”),  2 FC 555,], and a former Sri Lankan child, Mr. Jeyakannan Kanthasamy, [Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 (CanLII),  3 SCR 909 which has become the leading case of BIOTC.
Unfortunately with the framework for humanitarian and compassionate grounds as it stands, little can be done other than to criticize the structures within countries of citizenship and former habitual residence. We will continue to see Brown and Black applicants held down by Canadian system with no recourse other than to blame foreign systems in order to seek discretionary relief. These same blames are then perpetuated on other visa applicants and refugee claimants from those countries in what becomes a very problematic cycle. Canadian racism or the intersectional challenges of migrants, particularly those with precarious status, again gets whitewashed through forced positive explanations of ‘establishment’ and ‘ties to Canada’
I know racialized migrants are the ones struggling most because I viscerally see them. I constantly receive migrant workers in my office, whom facing their first work permit extension, visitor record extension (in order to facilitate their on-going status in Canada). They are the ones who ultimately end up in admissibility hearings and that we must run detention reviews for.
Returning back to the COVID reality, it is a real shame that the temporary foreign workers coming from around the world or who are here and finding themselves suddenly unemployed are receiving little in the way of Government-funded legal support. The minute the employer lifeline is removed for many workers, the void is filled only by good willed non-profit organizations, many with limited capacity to take on individual cases let alone try and advocate on a more systemic basis. Access to services itself is often marred by racist interactions, preconception, and barriers. Many organizations do not even have materials translated into key languages such as Spanish, Hindi/Punjabi, and Tagalog. With limited funding and now a limited staff as a result of their own COVID consequences, they have had no choice but to turn many people away.
The reality is most of these foreign workers affected are Brown, Black, and from countries in the Global South, with major linguistic barriers. Many talk about difficulties there, difficulties here, but generally have ended up in the whirlwind of challenges of identity, hopes of assimilation, and experiences of harm-causing racism.
Centering Race Post-COVID
Taking race into account when we look at these cases will allow us to examine processes in a more systems-driven way rather than simply focusing on individuals. For example, we can look at Personal Service Worker (PSWs) and caregivers right now as a collective community rather than individuals who have suffered negative consequences or come from complicated pasts.
Until Canada can prove it is taking anti-racist (not just non-racist) steps to tackle immigration and COVID, we’re stuck in invisibility. The same invisibility women of colour feel when they are under recognized and first to be blamed at their workplaces (Dr. Tam, comes to mind). COVID and the migrant workers who were part of helping us get through these times will fade to collective memory as a large part of the fault, a small part of solution, a consequence of their failures, and the results of our success. Our only ‘thank you’s’ will be in the form of temporary extensions and expiring permits, a few Canadian dollars to bring back to homes already ravaged as a result of western colonialism and imperialism. The mental health and trauma being experienced by workers being shepherded into the fields to work at increased productive capacity or migrant personal service workers having to watch individuals take their last breaths and expose them to illness, a distant memory.
I really hope this is a good opportunity to rethink our way of moving forward post-COVID. As another Indian writer Arundhati Roy so eloquently put it, we can break with the past and imagine the world anew, taking anti-racist (not just not racist and colourblind) steps to eliminate the historical and present day prejudices of anti-blackness, racist immigration policies, and barriers for darker-skinned migrants from the Global South. We can re-examine why we refuse so many Black African visitors and students, and why our rush to Artificial Intelligence has not adequately taken into account factors such as inherent racial bias. We can start building ties with migrant communities and Canada’s Indigenous communities creating solidarity, rather than let the State divide and conquer us into separate groups fighting over scarce resources that neither of us control.
I have submitted for approval a conference paper where I discuss how intersectionality can be rethought of in the Immigration Appeal Division (“IAD”) context. Much of this expands on what I talked about in this piece. I hope that when this paper is published I can begin expanding this conversation to other areas so that once we are prepared to re-engage with each other and our systems, we can make sure to keep racism at the front, not back, or our collective societal consciousness.