Introduction

From a logical perspective, the more requirements there are for something you wish to obtain, for example job requirements or minimum scholarship requirements, the less room there is for any discretion.

Using a Canadian immigration example, part of the reason Labour Market Impact Assessments (“LMIA”) Applications are able to facilitate employment when the Employer clearly has a Foreign National candidate in mind is due to Employer’s ability to set the requirements for the job to meet the Foreign National’s unique profile. This allows them to prove to Service Canada that the decision to hire was not discretionary and therefore that the genuine efforts were made to hire Canadians.

However, contrary to the examples above, I believe there is a growing trend that will see requirements being used as a way to create discretion and will affect the consistency of Officer decision-making.

How Discretion Might Work

With both the new Express Entry application process and the Government’s proposed SIN-sharing regulations on both Permanent Residents (http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg2-eng.php) and Citizens (http://gazette.gc.ca/rp-pr/p1/2015/2015-02-28/html/reg1-eng.php), information will be requested from applicants that will exist beyond available memory and likely, even, available records.

In order to submit an Electronic Application for Permanent Residence under Express Entry, applicants are asked to provide a reference letter for every employment they have ever held, setting out terms of employment (duration, wage, benefits, etc.). Under the proposed SIN/data sharing legislation, Applicants are provided the “option” of providing SIN numbers. These SIN numbers will then be shared with CRA to access the Income Verification  Program. While not providing a SIN number cannot be a stand-alone reason for application refusal (according to the Regulatory Impact Analysis Statement), the groundwork is there for it being a reason to severely delay the application. [Editor’s note: Will be doing more indepth paper on this topic coming May 2015]

The ability of any human, let alone even tax/accounting software, to ensure all this information is accurate is in my opinion impossible. The requirements are high. I remember back in 2013 when I applied for Government of Canada Security Clearance (for an internship I never did), I only had to provide a 10-year work/employment history.

Now applicants will need to know the date of every trip ever taken, every dollar ever earned and possibly even spent. Past failures to keep accurate records of flights or the use of a less than capable tax accountant can now come back to bite an applicant in the behind.

Every application will contain errors. It is inevitable under this new “compliance heavy” regime. Yet, every application cannot be refused. Doing so would be a waste of everybody’s resources and make Canada an unattractive immigration destination. Needless to say, I believe immigration practitioners can no longer rely on the self-declarations/draft responses of an applicant when filling out forms and will ultimately need a piece of hard evidence (tax form, employment letter, or visa stamp) to verify each date and dollar provided.

Conclusion

I think that the new requirements give a discretion to immigration officers to refuse any application and to ensure that the application is not susceptible to appeal or review.

It will be interesting down the road, to compare reasons for refusal and uncover how said discretion is being applied. I wouldn’t be surprised if net worth and country and origin play a huge factor.

Introduction

With the introduction of Express Entry earlier this year and the Government of Canada’s corresponding efforts to make the application system more accessible to the average Canadian, one intended consequence may be Applicants making what amount to “unforced errors” during the application process.

Corresponding, the Government appears to be taking an increasingly hard line towards Applicant’s who submit incorrect and possibly misleading information for the purposes of obtaining immigration status.

When do mistakes become misrepresentation? What happens if you forget important dates, names, and information on your Express Entry Application and realize this fact later on.

Misrepresentation Provisions of IRPA

As a result of recent changes to the legislation, the bar for misrepresentation has increased from 2 years to 5 years. Furthermore, Applicants will be barred from making a permanent residence application for the duration of that 5 years.

Prior to the change, many applicants would leave Canada but simultaneously file an application for permanent residence such as a spousal sponsorship which would be processed by the time the two years had been fulfilled.

Finally, as a backend issue, it is important to note that the ban applies retroactively. Even if the misrepresentation occured prior to the new legislation, the uncovering of the misrepresentation on today’s date would create the 5-year ban.

The provisions themselves state as follows:

Misrepresentation

• 40. (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 paragraph 10(1)(a) of the Citizenship Act, in the circumstances set out in subsection 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).

For the purposes of finding whether an error is a misrepresentation or not, we must determine whether the applicant “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”

Without going specifically into the case law/administrative guidance on this issue, there are several factors that could be taken into consideration:

• How material is the error (i.e. does the error affect outcome?)?
• Was it an honest error? –
• In the case of non-disclosure,  did the individual honestly and reasonably they were not misholding material facts?
• Is there sensitive personal situation being concealed to avoid embarrassment?
• As the applicant been given a chance to respond to the error?
• And most importantly, what are the specific facts and surrounding circumstances of the case?

Why the Risk Has Increased with Express Entry

In many ways, Express Entry is the same as the paper form and misrepresentation is assessed no differently. However, with Express Entry rather than making one paper application, there are three stages (arguably more) where you are submitting information to Citizenship and Immigration Canada. Information must be substantiated at all three stages and that information is also very likely to change during that period.

When creating an Express Entry profile, applicants are asked to create a profile which asks questions about their individual bio-data, their employment and educational histories, and their finances and family ties (among others). This information is used to generate a Comprehensive Ranking Score, by which they can later be selected from the pool.

Upon receiving an Invitation to Apply for Permanent Residency (“ITA”) Applicants will then have to provide significant documentation (within only 60 days) in order to create an Electronic Application for Permanent Residency (“E-APR”). This documentation includes a reference letter for each employment ever held, dates for each trip ever made, relevant pay stubs, tax documents, and family information.

To complicate matters, information can change and the Comprehensive Ranking Score/eligibility for Express Entry can change during the time a profile is created, and ITA is issued, and a E-APR is granted. This information has to be up-to-date throughout. For example, work permits may expire, family members may be born, and educational/work histories can change.

CIC appears to still be in the process of figuring out how it will assess misrepresentation specific to Express Entry. They have however, in a program delivery update, put out the following information

Assessing for misrepresentation

Applicants are warned that if they misrepresent their qualifications in their Express Entry profile or their e-APR, they may face a five-year ban from submitting any further immigration applications to Canada, including temporary residence applications.

If there are discrepancies between the information in an applicant’s profile and the information entered in the applicant’s e-APR which are not the result of a legitimate change in the applicant’s circumstance, the officer should determine whether a finding of misrepresentation under A40 applies.

For additional guidance on misrepresentation, processing offices should consult the misrepresentation section of ENF29 (PDF, 604.30 KB). The procedures for determining misrepresentation, including procedural fairness, remain the same under Express Entry.

If both A11.2 and A40 apply, the application should be refused on both grounds.

Because the very process of Express Entry is points-based, and minor changes can lead to differences in points and thus could affect whether an individual meets the threshold to be selected – the materiality of Express Entry errors is arguably greater than it was with paper-based forms.

Also, one of the reasons that misrepresentation is also more likely to occur during Express Entry is that the system itself (and the way data is inputted) can lead to mistakes.

When creating a profile and filing out the online forms, a series of boxes open up, some allowing you to select options and others requiring you to type answers. However, unlike with a paper form, it is difficult to see this information side by side, as some boxes close while others open and there is presently no option at the end to “review all information.”

Five Steps You Can Take to Try and Mitigate Express Entry Misrepresentation

1. Know when to hold them, know when to fold them – if information comes up that could be significantly erroneous consider declining ITAs and not submitting E-APRs until that information is corrected.

2. Gather the evidence up front- Unfortunately (or fortunately), lawyers now have to serve as both legal advisors and information auditors. An applicant can fill out a paper-based survey, swear on their lives, but until they have a letter from the employer stating X is X, it is nearly impossible to confirm this. Even though requirements are at the backend, try and get them done on the front end.

3. Follow-up with CIC during process – Whether you are an immigration rep or applicant, it is important to follow up with CIC throughout the process. We know that CIC has admitted that the algorithms and forms aren’t perfect, that changes to the forms are pending, and has even recommended that Applicant’s put in covering letters to explain discrepancies.

4. Write a covering letter prior to submitting E-APR –The value added that reps used to provide prior to Express Entry was submitting a covering letter explaining discrepancies. That should not change and may be useful when an Officer is looking at the error down the road.

5. Have a record of everything – It is too risky these days not to have a paper trail (again whether you are a rep or applicant), of what you have corresponded to the client, what you have corresponded to CIC, and the documents that have been submitted. Just because the process has moved virtually, it does not eliminate the need to have paper evidence of this correspondence and communication. If necessary, take tons of screenshots!

Hope this has somewhat helped 🙂