Tag Archives: Temporary Resident Visa

Five Ideas to Improve the Outland Sponsorship/Temporary Resident Visa Problem

I want to begin this piece by stating that in a very purposeful way, I have not spent a significant time reviewing the different proposals to the problem I will be discussing today. I have been in touch with numerous stakeholder groups who have pointed me at different ideas. I am sure if I were to read those ideas I would agree many of them, but I wanted to first tackle this from my own perspective and my own experiences and understanding of the law/practice. There are certainly academic journals to be cited, research to be relied upon, but this piece is about the nitty gritty. Solutions I feel could be implemented to make a broken process better at this ever-so crucial time.

The problem we are talking about is the growing challenge being posted by outlandish (read: extreme) delays in processing outside of Canada (what I will refer to as “outland” or “outside Canada”) Sponsorships and how families are being separated because they are unable to obtain temporary resident visas and other permits to temporarily reunite with their family members pending processing. This processing is in many cases taking years.

This challenge has been exacerbated by COVID, where precarious work and travel options make leaving Canada impossible for the Sponsor. In this problem scenario most Sponsors are residing in Canada (as permanent residents or citizens) and their partners (common-law spouses, conjugal, and married) are overseas. Because of COVID, closure of visa offices, backlogs of biometrics, and general reticence to processing paper-based applications abroad – families are now at a breaking point.

For full disclosure, I was contacted by one advocacy group (of about 15 families) and told there were many more. Many of my own clients are in the same boat right now. This has prompted me to write on an issue that frankly we’re not talking enough about – a major consequence of the pandemic.

I am also someone with personal lived experience that combined with my professional experiences, gives me some authority to share. I was able to get a Temporary Resident Visa (TRV), then a study permit for my spouse (then girlfriend/fiancee), eventually choosing to apply outside Canada while she was residing with me in Canada – often times the best scenario, but unobtainable for so many. I am very cognizant that this was also a matter of luck – had my partner been from a different country – the Philippines, India, Nigeria, Iraq – just to name a few, I would likely have had to either marry abroad and have several years of long-distance.

Because of these overseas delays, I have also seen a great number of families choose to go inland – forgoing appeal rights, for the benefit of implied status provided by the Open Work Permit. Effective overseas processing has been a staple of Canadian immigration, yet due to delays – particularly from visa offices located in Global South/Middle Eastern/African countries – we’ve created an overburden on visa offices to assess complex and unnecessary visitor visa applications overseas and inland applications here here in Canada.

Which leads to my first idea for how we can fix things…

Idea 1: Seek to Reduce/Eliminate the Discrepancy Between Visa Office Processing Times Based on Country of Application/Origin

It used to take less time in a majority of a visa offices to obtain approval in an outland sponsorship than it did inside Canada with an inland application. In order for the overseas system to function effectively, as the Government would like it, this has to return to being the case in the majority of overseas visa offices.

Furthermore, in the past  it would take an American citizen 4 months to obtain an approval and land but take applicants from Africa several years.  Given the move to virtual processing, and as my colleague Steven Meurrens is pushing for – a move away from paper-based assessment to online assessment (see idea 5 below), perhaps files do not need to be referred to local visa offices unless there is a significant flag requiring local expertise. Having more processing of sponsorship across visa offices (by capacity) can serve to speed things up and reduce processing times.

If overseas sponsorship processing can be reduced to 6 months in 80% of the cases like an economic immigration file used to be in the years before, you will see a drop in the number of applicants seeking to first come to Canada to apply inland, given a Spousal Open Work Permit can take about the same amount of time to receive and processing times to be at least a year to often a year and a half.

There’s a certain point of time, where even the generally discriminatory process of visa processing becomes too discriminatory. If any Government program inside Canada were to operate where individuals from certain countries or within certain subsections of the population were being processed at a much slower rater than individuals from another region, there would be human rights complaints. I do understand the need to vet for security, misrepresentation, etc. – but centralizing processing at least ensures we are not sorting entire populations through these processes.

I would call on the Government to try and centralize processing and be transparent with data on  such things  DNA requests, interview requests, security check backgrounds, to ensure that it is not disproportionately applied to Brown and Black folks, which all  current anecdotal evidence suggests it is. This would greatly ease the burden of Applicants and also alleviate the pressure on having to apply for TRVs to reunite.

Idea 2: Create a Designated Category of Spouses that Are Able to Obtain TRVs Upon Acknowledgment of Receipt and Allow Most Spouses to Reunite After First-Stage Approval Based on Dual Intention;

While I understand IRCC’s interest in vetting genuineness of relationships at an early stage, it is clear that there are relationship involving Canadian children currently in Canada and common-law partnerships/marriages of a significant long duration 2+ years)  where a TRV should be granted immediately, not withstanding R. 183(1) and (2) and the need to leave Canada at the end of their authorized stay. Dual intention should be made more clear to Applicants. A standard form could be generated for Applicants to provide their plans to leave Canada in the event of the refusal of their sponsorship application and loss of status. My suggestion is that this TRV is issued within acknowledgment of receipt which should take 2 months rather than the current 4-5 (note: COVID has pushed this even further).

For other couples, a TRV should become available upon first-stage approval (finding that the relationship is genuine, which ideally happens at the 4-5 month mark). However, IRCC could certainly introduce measures such as the need to convert the application into an office with longer processing period inside Canada IF and only if, they are able to keep shorter processing times overseas as an incentive to await full processing there. Again, it is my perspective that a family class sponsorship can be done in 6  months, if an economic class application be done in the same time and an applicant from the United States could take four months.

Finally, IRCC could issue shorter term duration visitor visas, tied to the processing of the sponsorship file. Should the sponsorship file breakdown, the Applicant would then lose status or have 90-days to restore themselves. This 90-day restoration period could be accompanied by the options available for Temporary Resident Permits (TRPs) for family class members who did face abuse leading to the end of their relationship.

Idea 3: Eliminate Primary Purpose Assessment

One of the reasons applications take an increasing amount of time to process is because of R.4s [Regulation 4 of the Immigration and Refugee Protection Regulations] specifically on the second primary purpose assessment.

Once a relationship is genuine, from my perspective, it does not need to matter how much immigration is or is not the primary or a secondary/tertiary purpose. If there are issues with intent, these will invariably affect the genuineness of the marriage and possibly be caught through misrepresentation. Stricter misrepresentation penalties (i.e. life-time bans instead of five-year bans) can themselves serve as disincentives for marriages of convenience. The current tests blurs and complicates the reality that a genuine marriage may only be able to sustain itself through immigration that reunited a couple.

Clarifying the test so the focus can be on genuineness can clear up processing and reduce the number of interviews needed. This would help shorten processing times and reduce the need to make TRV applications for those couples who want the quickest processing and landing as permanent residents.

Idea 4: Have Concurrent Processing of Medical/Security at the Front End – a Return to the Old Ways;

While IRCC has in recent years moved the  medical exam from the front end to the back end, perhaps having this request at the beginning alongside the biometric request and the police certificates could allow better vetting of the majority of clients that do not pose  security or inadmissibility risks. Those clients who do could be informed earlier on that they are facing further processing and then make required arrangements to possibly relocate.

The way the current process works with delays at certain visa offices really puts the 90% of non-problematic files in the same queue and position as the 10% that may create challenges, something that has net negative effects for family reunification.

Idea 5: Move Sponsorships Online and Utilize Tech Solutions to Make TRVs Easier to Apply For

One of the major challenges with sponsorships is that the entire process is paper-based, where as the majority of IRCC processes have moved online. As such, things such as original signatures and the mailing of documents between spouses living across the world from each other, add unnecessary cost, time, and stress to the sponsorship process.  There should be ways to make the entire sponsorship process (like the Express Entry process) accessible online to those that are able to navigate online forms. For Outside Canada applicants, the online system should allow for a TRV application to be generated right alongside an initial Sponsorship. This application can be held in abeyance, but tied to the Sponsorship in the same way an open work permit is tied to an Inland Sponsorship. When it hits a certain stage it is processed to presumed approval.

The form itself can be automatically populated with the same thing content/information on the inland sponsorship making the issue of discrepancy and misrepresentation due to error, less likely to occur.

Finally, rather than assuming clients have an understanding of the complexities of dual intention under A22 of the Immigration and Refugee Protection Act and these IRCC guidelines, this question could be directly assessed on the form with the requirement for a plan presented in the event of a refusal, to leave Canada. Officers could satisfy themselves where an Applicant and Sponsor agree (and can put in writing) that if the application is refused that they will leave Canada and re-apply. While it may hold limited legal weight (and intentions can change), it is something that can be brought up on enforcement if necessary.

On the note of interviews, in this day and age of digital contact, I do not believe there should be the need for in-person interviews or at the very least this can be a choice depending on the seriousness of the matter.

Indeed, virtual interviews allow for the partners to be together to attend the interview together, for the Officers to gauge the relationship on the basis of their attendance together. If  spoual appeal hearings can go virtual, there’s no reason interviews must stay in-person. Indeed, in most refusals it is the stressful nature of an interview at the Government office that leads to the refusal (often forgetfulness due to stress) rather than the actual non-genuineness or primary purpose.

What Do You Think About My Ideas? What Are Yours?

Perhaps you may have other ideas. I have heard some around TRPs being issued and waiving certain IRPR provisions. What is key to remember here is that family class sponsorship has been the staple of Canadian immigration for many years and before our Express Entry system and the Government focused shifted to economic immigration, it was the crown jewel. We had a system that allowed sisters and brothers to reunite, families to grow organically, and communities to develop from that. We have largely limited the pie, and even today made parental sponsorships more difficult. If we can do anything to make family class sponsorship easier for partners and spouses – we should do it. The ability to remain unified during stressful times (which COVID has revealed) is essential and at the very least needs to elicit the same kind of urgency that we have placed in other areas during this pandemic.

 

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

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

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

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

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

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

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

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

A Little Parable – At the Chinese Visa Office

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

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

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

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

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

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

Better Communication and More Transparency

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

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