The Final Regs for TFW Vulnerable Work Permits = Good, But a Lot Rests on Implementation/Anti-Fraud

Today, via Part II of the Canada Gazette, the Government released the final regulatory amendments for an open work permit regime for vulnerable temporary foreign workers experiencing abuse as defined by R. 196.2 of the Regulations. See link here: http://www.gazette.gc.ca/rp-pr/p2/2019/2019-05-29/html/sor-dors148-eng.html

The changes, which come into effect 4 June 2019, create an effective national regime. The regulatory changes themselves are quite simple.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 (1) Subparagraph 200(1)(c)(ii) of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:

  • (ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 or 207.1 but does not have an offer of employment,

(2) Section 200 of the Regulations is amended by adding the following after subsection (3):

Non-application of paragraph (3)(e)

(3.1) Paragraph (3)(e) does not apply to a foreign national referred to in subsection 207.1(1) who engaged in unauthorized work in Canada or failed to comply with a condition of a previous permit or authorization.

2 The Regulations are amended by adding the following after section 207:

Vulnerable workers

207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they

  • (a) hold a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii); or
  • (b) previously held a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii), have applied for a renewal of that permit under subsection 201(1) and are authorized to work in Canada under paragraph 186(u).

Family member of vulnerable worker

(2) A work permit may be issued under section 200 to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).

3 Subsection 299(2) of the Regulations is amended by striking out “and” at the end of paragraph (j), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):

  • (l) a person described in section 207.1.

Coming into Force

4 These Regulations come into force at 00:00:01 a.m. Eastern daylight time, June 4, 2019, but if they are registered after that time, they come into force at 00:00:01 a.m. Eastern daylight time on the day after the day on which they are registered.

It interesting to note though that the changes amend R. 200 but don’t directly reference R. 199 which creates some interpretative questions/challenges. While I think in practice, a broad interpretation of R. 199 could still support in-Canada processing under R.199(a), (b), family members under (e) and (f) if R.207.1 was read in, I agree with a Twitter commentator who noted several amendments and wording issues could create uncertainties.

Here are some thoughts I provided on Twitter:

Three Good Changes Emanating From the Regulatory Amendments

1. Providing Recourse to the Six-Month Bar to these Workers – Allowing individuals who may have violated previous work permit conditions or unauthorized work to still access a work permit under R.200(3.1). This would likely forgive 3(e) unauthorized work which may arise from where unauthorized work is necessary as a result of an abusive employer.

2.  Program Delivery Instructions Fluidity/Consultation Process – recognizing the need for strong Program Delivery Instructions and fluidity. I think this came out of a very effective consultation. process.  Full disclosure – I was in attendance for the Vancouver consultation (on behalf of a sex worker organization I assist) and also contributed my thoughts/notes to those drafting the Canadian Bar Association’s position which Deanna, from McRae Law, did a fantastic job on.

3.  Processing Times and Duration of Work Permit – Near the end, there is a discussion of five business day processing standards in 80% of the case. There is also some discussion earlier about the importance of case-by-case discretion. There seems to be acknowledgement that ESDC and LMIA-processing times are heavily intertwined. Cross-departmental coordination to encourage a reduction in processing times (which the LMIA processing moving online as it is expected to do) will play a big part of.

My Major Concern – Program Misuse

One of the concerns I possibly see is in coming up with an effective mitigation strategy against program misuse is that the problem may go deeper than limiting false claims to use this program inappropriately.

While I appreciate the multiple language access (especially for those who self-represented), I think we under-estimate two important factors:

1) Literacy of Those Who Will Likely Fall Under the Policy

  • Just because instructions are available in many languages that applicants may speak – it does not mean those individuals will interact with them.
  • In fact, when these materials are available in different languages this can also encourage more peddling of this information by community consultants and other individuals who this type of work.
  • This won’t be an easy PDI to put into English let alone other languages. There will be discretion. There will be cultural nuances to navigate as well.
  • We have to remember as well that many individuals who work in the SWAP program or in positions such as cleaners and attendants can often lack high school education or literacy to read through the length of a documentation that will be required to breakdown the definition of abuse into various related real-life, and relatable scenarios.

2) Pathways to Abuse – the International Student Parallel

  • One of the challenges I foresee is that the abuse may legitimately occur in Canada but that the roots of the abuse could be overseas through unlicensed agents and ghost consultants.
  • We saw and/or are seeing this with international students with respect to their humanitarian and compassionate grounds or refugee claims. Many of these claims cannot be said to be fraudulent and/or even without basis but were created when the individual first received a letter of acceptance to a college/university they did not know and were not prepared to necessarily attend.
  •  I do see lawyers, consultants, and community organizations legitimately using this application to try and ameliorative exploitative situations. There will be threshold issues. However, what this does not stop is the trend of bringing in individuals by third-parties who know/or are wilfully blind to the fact that exploitation or deception will happen. Agents are actively working to set up students into schools and employees into employers knowing that students will leave for LMIA-based jobs or that that the LMIA conditions will not be met. These potential workers can either be not aware of this, aware of this, or even strategizing their pathway to Canada around this. In short, there’s nothing to stop an unscrupulous agent abroad from utilizing the Vulnerable Open Worker Permit as a safety net (which it is clear from the RIAS this is not supposed to be).
  • In order to make sure this is done properly, I don’t think you can create a safety valve without controlling the front end floodplains. I worry about this being another part of the pathway to PR that it is truly not meant to be.

I am working with several community organizations/non-profits and organizing around this from a public service perspective. The LMIA process (which requires an Employer to pay for the processing fees and not reduce the costs of the processes from an Employee’s wages) can create major conflicts when both employer and employee want to go forward but cannot financially support the process. It is still very likely that several vulnerable workers will still be forced between the decision as to whether to stay in Canada (via a humanitarian and compassionate grounds and/or refugee claim) or whether to leave.

Keep me posted as this program moves forward.

Would love to engage with you and/or your orgs on this.

 

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