Previous Unauthorized Work and the Application of Regulation 200(3) IRPR at the Port of Entry

Mock Fact Scenario

An Applicant shows up to the Port-of-Entry (after a quick trip to the Untied States) applying for a new work permit or attempting to enter on the basis of an existing work permit. During their secondary examination by Canada Border Services Agency (“CBSA”), it is uncovered that the Applicant may have been working in a different occupation (NOC) and a different location than they were authorized to under their previous work permit. Less than six months have passed since the latest infraction.

One of the issues that has been boggling down CBSA is how to handle such an applicant.

Introduction

We have to view this issue in the context of recent Federal Court cases, specifically Gupta v. Canada (Minister of Public Safety and Emergency Preparedness) 2015 FC 1086 and Yang v. Canada (Minister of Public Safety and Emergency Preparedness) 2014 FC 363] that have been highly critical of CBSA’s issuance of exclusion orders pursuant to R.228(1)(c)(iii) for non compliance of s.20(1)(b) of the Immigration and Refugee Protections Act and R.8 of the Immigration and Refugee Protections Regulations (“IRPR”).

To cut a complicated topic short (as it is a whole separate blog topic), the Federal Court has found that the CBSA has acted unreasonably in issuing exclusion orders for past non-compliance where applicants hold existing work permits or are making new work permit applications and are found not be “working without first obtaining a work permit” as per R.8. In Gupta, the Justice Locke found that CBSA’s equation of an individual who was ignoring the conditions of his permit to an individual who did not obtain a work permit before first working essentially read in requirements that were not in the provision.

Additional challenges to CBSA’s position on this are posed by the fact that IRCC’s own guidance per Enforcement Manual 2, Chapter 11 suggests that work non-compliance ends upon an individual leaving Canada  and that a work permit is not listed under the R. 52 list of required documents for temporary resident applicants.

The motivating factor for CBSA to issue these types of exclusion orders pursuant to R.228(1)(c)(iii) is that they are specified removal orders, meaning they do not have to be referred to the Immigration Division and can be carried out at the Port-of-Entry on a same-day basis. Arguably, although case law has cautiously tip-toed around stating this, the exclusion order is outside the jurisdiction of the Port-of-Entry.

Given the above, the logical step would be for CBSA to find a way to not issue the work permit and deny entry in lieu of issuing an exclusion order. There is some legislative authority to support this possible position (with important nuances) as this article will discuss.

Authority to make a POE Application

Let’s begin by taking a step back to explore how the individual made it to the Port-of-Entry in the first place. The Applicant is making a work permit application at the Port-of-Entry taking advantage of provision R. 198(1) of IRPR, which allows an individual to apply for a work permit at the Port-of-Entry upon entry  into Canada if they are visa-exempt or by virtue of leaving Canada for the United States and re-entering within the validity period of their initial study or work permits or within the period of validity for their stay as temporary resident in Canada. This regime is also where the commonly used, but often misunderstood phrase “flag-poling” derives its practical value.

The relevant legislative provisions are:

Application on entry

198 (1) Subject to subsection (2), a foreign national may apply for a work permit when entering Canada if the foreign national is exempt under Division 5 of Part 9 from the requirement to obtain a temporary resident visa.

190 (1) A foreign national is exempt from the requirement to obtain a temporary resident visa if they

…………….

(3) A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely

(f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they

• (i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and

• (ii) return to Canada by the end of the period initially authorized for their stay or any extension to it;

Can CBSA Refuse to Issue an Applicant a Work Permit for Past Non-Compliance with Study/Work Permit Conditions?

The relevant legislation states (emphasis added):

200 (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that

………..

(3) An officer shall not issue a work permit to a foreign national if

• (a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought;

• (b) in the case of a foreign national who intends to work in the Province of Quebec and does not hold a Certificat d’acceptation du Québec, a determination under section 203 is required and the laws of that Province require that the foreign national hold a Certificat d’acceptation du Québec;

• (c) the work that the foreign national intends to perform is likely to adversely affect the settlement of any labour dispute in progress or the employment of any person involved in the dispute;

• (d) the foreign national seeks to enter Canada as a live-in caregiver and the foreign national does not meet the requirements of section 112;

• (e) the foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous permit or authorization unless

  • (i) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition,

  • (ii) the study or work was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c);

  • (iii) section 206 applies to them; or

  • (iv) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act;

The above rule is often coined the “six-month bar” on applying for a work permit, but the important sub-section to look at is (ii).

R. 185(a), (b)(i) to (iii) and paragraph 185(c) state as follows (emphasis added):

Specific conditions

185 An officer may impose, vary or cancel the following specific conditions on a temporary resident:

• (a) the period authorized for their stay;

• (b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

  • (i) the type of work,

  • (ii) the employer,

  • (iii) the location of the work,

  • (iv) the times and periods of the work, and

  • (v) in the case of a member of a crew, the period within which they must join the means of transportation;

• (c) the studies that they are permitted to engage in, or are prohibited from engaging in, in Canada, including

  • (i) the type of studies or course,

  • (ii) the educational institution,

  • (iii) the location of the studies, and

  • (iv) the times and periods of the studies;

Note also, that there is a sister companion provision for a “six-month bar on issuing a study permit”

Failure to comply with conditions

221 Despite Division 2, a study permit shall not be issued to a foreign national who has engaged in unauthorized work or study in Canada or who has failed to comply with a condition of a permit unless

• (a) a period of six months has elapsed since the cessation of the unauthorized work or study or failure to comply with a condition;

• (b) the work or study was unauthorized by reason only that the foreign national did not comply with conditions imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or paragraph 185(c); or

• (c) the foreign national was subsequently issued a temporary resident permit under subsection 24(1) of the Act.

• SOR/2004-167, s. 62.

Going back to our initial fact pattern, the six-month bar does not apply to our individual because they were non-compliant only by virtue of having worked for the wrong employer or in a different occupation as per their work permit.

Given even work beyond authorized stay is covered, the only real application of the six-month bar appears to be where an individual does not hold a work permit and works without authorization or does not hold a study permit and pursues unauthorized study.

Possible CBSA Options

I can see three possible scenarios that CBSA can take in handling these “previous non-compliance cases”:

1. Refusal of the work permit application and denial of entry due to non-genuineness of job offer or discrepancies with the Offer of Employment pursuant to R. 200(1)(c)(ii.1) IRPR,  or denial of entry on basis that Applicant will not leave when required pursuant to R. 200(1)(b) IRPR.
2. Referral to Immigration Division on s.40(1)(a) misrepresentation by way of R.229(1)(h) IRPR – this has harsh consequences but has legal teeth.
3. Allowing entry but flagging for inland investigation for s.41(a) IRPA non-compliance by way of R. 229(1)(n) – least cost effective, but likely strongest for legal basis.

Due to the lack of jurisprudence, however, it will interesting to see how these referrals (and subsequent exclusions) hold up in Federal Court. Does the fact that an Applicant was previously not abiding by the requirements of his/her work permit affect the genuineness of the future job offer? Is there enough of a legal basis that past non-compliance, even though not report-able, can be used to establish that an individual will not leave Canada when required?

Many questions to be answered for sure…..