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What To Do About 20,000 High Risk International Students? – Government Policy Making and it’s Important Implications

Based on the most recent publicly-available figures, as of 31 December 2014, there were somewhere in the neighbourhood of 336,502 international students with valid permit in Canada (see: November 2015, IRCC Presentation).

From an internal policy document obtained through Access to Information (“ATIP”), we know that prior to the national launch of the Designated Learning Institution (“DLI”)  Compliance Reporting Portal on (“DLI Portal”) on 15 April 2015, Citizenship and Immigration Canada (now “IRCC”) estimated that there were 20,000 students identified as high risk. These were classified as students that were labelled as unknown/no record, no longer enrolled, and academic suspension.

What this mean mathematically, is that around 6% of all study permit holders in Canada were considered high risk as of April 2015.

What-to-do-about-High-Risk-International-Students

Glossary of Definitions – International Students

Please see below pdf extract from the same ATIP laying out a glossary of definitions for international students:

Glossary-of-Definitions-International-Students

As a side note: Interestingly, enough the definition for “full-time” student only requires a student to be registered in 60% or more of the program’s full course load during an academic session with 60% of the course load requiring the student’s physical attendance at the Learning Institution in Canada. It is surprising the specific nature of these definitions is not provided by IRCC on their program delivery guide (see: here)

What to do with High Risk Students?

In this heavily redacted portion of the ATIP (including 56 pages altogether excluded on the basis that it is information the Government intends to publish shortly), we get a picture of the challenges Government faces when coming up with policy to monitor high-risk students.

The first option proposed (Option 1), appears to be compliance reporting specifically for those high risk students – reviewing GCMS for non-compliant cases and contacting those students to update their enrollment status through MyCIC to provide information that they are enrolled in a Designated Learning Institution (“DLI”).

The proposed ideas was that this would be done before the procedural fairness letter is issued and the case referred, simultaneously reducing the workload for the International Student Program team. Several potential “Cons” were indicated – that direct contact info for the students may not available, that this effort would duplicate the issuance of a procedural fairness letter, and that mass emails may be filtered out by spam blockers.

Option 2 was likely redacted by the ATIP.

Option 3 is also redacted, but can be deduced as sending out a mass procedural fairness letter to all students not registered at. What is interesting to deduce from this, is IRCC’s acknowledgment that the current process may not provide a fair opportunity to respond and that this would be one of the “Pros” of the process. One of the “Cons” identified is that mass-procedural fairness letters could not be sent out and that each Regional Office or Case Management Branch (“CMB”)would have to assess and send out individual procedural fairness letters. Another interesting aspect mentioned was that this process may go through the services of an immigration representative, which appears to circumvent the intention to go directly to the student to verify.

Option 4 is also redacted by the ATIP. However, we can somewhat deduce that this option  involves contacting the DLIs with a list of students who would then self-report to Regional offices or CMB.  The “Pros” of this option would that it would limit the procedural fairness letters and emails, with one of the corresponding Con that the Regional offices and CMB would receive large volume of records.

It is a little unclear from the pages that follow, but it appears that either Option 1 (again without knowledge of Option 2 is) was selected. However, as we have yet to see a clear policy manual or program delivery update on this, one can assume it is still pending release by the Government.

Canada Border Services Agency (“CBSA”) – Coordination Needed

The discussion of procedural fairness and the need to contact the student or the representative prior to looking into non-compliance raises an interesting issue.

Currently, several of the one-year exclusion orders issued by Canada Border Services Agency Minister’s Delegates – pursuant to s.29(2) of the Immigration and Refugee Protection Act. 

Exclusion order for non-compliance

As the legislation currently stands, R. 228(v) sets out that for this type of non-compliance, the Minister’s Delegate, upon determining the report was properly referred, must issue a specified removal order – by way of a one-year exclusion order.

Where this becomes challenging is in the context of a detained international student – who in a 10-15 minute Minister’s Delegate Review and usually without the ability to access their own educational records, must try and convince the Minister’s Delegate not to issue an exclusion order. The “procedural fairness” as contemplated by the IRCC’s policy options – giving the student a chance to provide proof of compliance is nearly impossible in this circumstance.

Furthermore, the basis of the evidence, presumably attendance records provided by the DLIs are themselves difficult to classify as “neutral.” I have seen more than one case where DLIs were eager to cooperate with CBSA to have problem-students removed, themselves eager to keep a clean record for their business.

Cracking down on Educational Consultants/Non-Compliant DLIs

Another thing that the DLI compliance regime is mum on, and in my opinion, needs to take a more than serious look at is the number of DLIs and “ghost consultants” that are themselves not compliant with the International Student Program.

One of the more common schemes, involves a third-party educational consultant/ghost consultant who does not charge for the “immigration services” but assists the student in obtaining a student permit for a DLI that they receive a back-end payment from. Educational consulting is an important industry, but arguably needs to be regulated by the Province in much the same way that other professionals such as Immigration Consultants and Lawyers are.

These services are having detrimental effects on international students in that, because they are not licensed nor trained to provide immigration services, their applications usually contain a litany of mistakes and often misrepresentations.

Currently a misrepresentation and non-compliance added together, under R. 229(3)(b), can be the grounds for deportation order if so pursued by CBSA.

Furthermore, many of the DLIs themselves do not have clear policies on non-attendance. Attendance records are not accurately kept or taken, often provided to CBSA retrospectively.

Solution – Provide International Students an Opportunity to Respond/and or a Warning Letter

Ideally IRCC’s new policy will be a collaborative effort enforcement arms like CBSA to ensure that procedural fairness is provided in the context of student’s non-compliant with their study permit conditions.

The requirement that students must actively pursue studies and remain enrolled in a DLI is a laudable one – abuse of the International Student Program is too frequent, taking resources and spots from future Canadian permanent residents and citizens who need Canadian studies as a launching pad.

At the same time, however, with a policy that is very paternalistic and unforgiving in design – procedural fairness elements must be implemented.

In my perspective, releasing detained clients (on conditions, if necessary) and providing them 30 days to respond is a baseline requirement. I also think, that in several cases, a warning letter may be more appropriate. Students may have communication issues with their DLIs, personal events may have impacted an international student’s studies. These are all valid considerations currently not being considered by the current compliance regime.

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Immigration, Refugee and Citizenship Canada (“IRCC”) Releases Their 2016 Immigration Levels Plan

In what can be considered the equivalent to the immigration law version of draft lottery day, the IRCC has released it’s projected numbers of permanent resident applications processed in 2016.

The report/background begins by laying out how this year’s targets differs from last year’s targets:

Levels Plan Summary 2015 and 2016

Economic Immigration Targets

One of the first things you notice is that the targets reflect a lowering of the the total of proposed economic immigrants from 181,300 to 160,600.

The proposed 2015 (last year’s) Levels Plans for Economic Immigration were this:

2015 Levels Plan Economic

The 2016 (this year’s) Level’s Plan proposes the following with respect to Economic Immigration.

2016 economic levels plan

Interesting, where the major drop appears to be is in the Express Entry- eligible categories of Federal Skilled Worker + Canadian Experience Class, amalgamated in the 2016 levels plan as Federal Economic – High Skilled.

The drop in numbers there is at around 25,600, a sizable amount. What this may mean (although not inherent in the numbers), is there is still a large backlog to be processed of existing Express Entry and old Canadian Experience Class/Federal Skilled Worker inventory.

What I suspect this will mean for Comprehensive Ranking Scores is that they will not dip below 400 threshold in this year. Again, when the program was created, it was estimated that it would decrease to somewhere in the 300’s which has yet to occur.

Family Immigration Targets

The second thing you notice is a corresponding increase in the number of family class applicants, the source of which will become clear.

The 2015 (last year’s) targets were as follows:

2015 family levels plan

The 2016 (this year’s) targets are this:

2016 levels plan family

It is interesting, that with the debate on whether the Parent and Grandparent Class should continue to exist or be replaced by 10-year multiple-entry, the proposed intake stays the same (and as only 10,000 were processed last year) will ultimately increase.

The increase in Spouses, Partners, and Children is welcome, but for many the real crux of the issue – the lack of short-term options for sponsored spouses and the length of processing times, don’t appear to be answered by having an increased number of processed applications. Those solution will have to come from other means and policy instruments.

Humanitarian Immigration Targets

What is perhaps most interesting is the way humanitarian levels have been reclassified and expanded since 2015’s Levels Plan.

2015

2015 Humanitarian levels

2016

2016 humanitarian levels

However, doing the path it really amounts to a significant increase in the number of Resettled Refugees. Protected Persons and Dependents do not change. Neither is their any significant change – other than to public policy exemptions and a minor decrease to “Humanitarian and Other”.

In light of the Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61 decision, it will interesting to see how decreasing the non-refugee inputs will affect long-term wait-times in an already backlogged H&C category.

Targeted Acceptance vs. Actual Admittance

Do keep in mind that these reflect targets rather than actual numbers. It will be interesting to see later on how close the Government was last year and will be this year in meeting those targets. This information may not come out (for 2015) until a year from now, similar to how Table 7 of the 2016 Annual Report Plan lays out the numbers of permanent residents admitted in 2014.

2014 Actual Numbers

Of course, this takes into account individuals that may take several years to obtain permanent residency so I don’t know if there’s an accurate way to determine if the targets for a specific year were indeed met.

I think we’re all eager to see how this plan plays out in practice!

 

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Proposed Solution for IRCC – Move Response to Further Information Requests to a Portal-Based System

Recently, I have dealt with several files where the issues were entirely a matter of technology and administrative challenges, rather than substance. In the cases that come to mind, refusals/litigation could have been avoided with what in my mind is a simple solution – moving the Response to Further Information Request system to an online form/upload/portal based system.

Currently, when Immigration Refugee and Citizenship Canada (“IRCC”) request further information, most of the time this takes the form of a letter or email sent to the email address on file, usually the Applicants or their Representatives. Often times it is unclear what file the request or confirmation is referring to due to a lack of identifying features on the usually generic IRCC letters.

Upon receipt, applicants are given a set amount of time to respond.  Many times it is not made clear where to respond. Other times it specifies it should be done by email.

The email response process comes with its’ fair share of inherent challenges. In fact, earlier this year, as one of their first Operational Bulletins since taking over power, IRCC set to clarify the process by which email communication with clients is to take place. OB265A is accessible here.

Asides from the issues listed in the Bulletin, there are often several other issues. For one, it is quite common that Requests for Further Information, particularly in the context of a file with a long immigration history such changes in email address and representative’s email, go to the wrong address. It is quite embarrassing for both client and old/new representative, when the email goes to the old representative instead of the new, particularly where the client may no longer be on good terms with the old representative. I have heard of several cases of delay on the part of old representatives in passing on information to the client, in some cases leading to refusals.

Second, the process of uploading attachments to emails bound for IRCC inboxes is unclear. I personally, set myself a 5MB limit for attachments, after which I will try to send a separate email. However, it is entirely unclear what IRCC’s inbox limits are and whether the documents are received in good condition. Just think about the number of times we receive corrupted files in our own day-to-day emailing.

Third, IRCC (particular I found internal visa offices) asides from automatic replies, rarely confirms delivery of further submissions sent by emails.  Particularly where further clarification or extension is being sought, this leads to a long “wait and see” approach that generates a lot of unnecessary stress for all parties.

Possible Solution – Utilizing a Secure Online Form/Portal for Submission

From my understanding of IRCC’s online application systems, there are already mechanisms in place for requests for further information to occur online. Of course, this is complicated in a paper-based PR process – again, an issue I think in itself will need to be revisited. However, it makes sense to me that a portal – similar to that used for online TRV/study/work permit applications exist so that applicants can have peace of mind that their uploads have been properly uploaded and their documents properly received. This has the added benefit of being able to require a digital signature of the Applicant, to verify that all the documents are true – adding a potential barrier against A40 Misrepresentation.

What are your thoughts on possible solutions here? Do you agree that moving things digitally would promote greater procedural fairness? What do we do about several countries where access to technology/the internet is not up to par?

W.

 

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Social Media Blackout – In Memory of My Late Father

Dear Readers:

Without delving into too much detail (my father was quite a private man and would not want it) I unfortunately lost my father earlier this week after his battle with a horrible disease. I am grateful that he is no longer suffering.

My father was a huge advocate of being a self-less, quiet, hard worker. He was the yes man, the go-to-person for everyone in his social circle and family. He never wanted the awards, the acclamation, the publicity. He was an important man beyond the results of  a Google search. One of the things, he constantly told me was to be less public and more private and humble in my work.

To honour his memory, I will take a two week break from social media – including this blog, my disabled Twitter and Facebook accounts. I know these are tools of my trade and it may lead to a few less readers/referrals in the interim but it is my way to honour the man.

I ask all of you to  stay patient and spend the extra time you would have spent reading my writing to spend time with an aging, sick family friend or loved one.

Dad: I will make you proud. You are the reason I am here, you are my driving force. I apologize for not spending enough time with you in the last few years. But no regrets, I will carry on your legacy of hard work and perseverance.

With love,

Will

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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