Minister confirms parental sponsorship restrictions; no change yet to dependent children

Immigration Minister Chris Alexander appeared in Brampton, Ontario, Wednesday to announce the government’s changes to sponsorship rules and policy for parents and grandparents. Despite his efforts to sugarcoat the announcement, he couldn’t disguise the fact that the changes will severely limit future reunification of parents and grandparents for many families in Canada.

Minister Alexander’s predecessor, Jason Kenney, announced the new policy originally on May 10. Proposed rule changes were published a week later. The final version of the changes made by cabinet order on Dec. 12 will not be formally published until Jan. 1, 2014, the day they come into effect.

The new rules and policy make four significant changes to sponsorship of parents and grandparents. First, sponsors previously signed an undertaking to be responsible for the parents and grandparents for 10 years after they are granted permanent residence. New undertakings will last 20 years. If the parents or grandparents receive any social assistance within those 20 years, the sponsor may be compelled to pay back the social assistance payments.

Secondly, sponsors are required to meet certain income requirements to be eligible to sponsor parents and grandparents. The minimum necessary income for sponsoring parents and grandparents is increasing by 30 percent. For example, at present a sponsor with a spouse and two children intending to sponsor two parents has to show an annual income of $55,378. Starting in 2014, the same sponsor will have to show an annual income of $71,991.

Thirdly, sponsors will be required to provide proof of income from the Canada Revenue Agency (CRA) for three years, instead of one year. A sponsor noted above wanting to file an application in January, 2014, will have to show proof of the greater income for the taxation years from 2011 to 2013. The sponsor may not get satisfactory proof from the CRA for 2013 income for several months, so the sponsor may have to show proof of the higher income for 2010 as well if they file an application on Jan. 2.

That’s important if the sponsor’s application is to be approved, because of the fourth change. The Minister confirmed that under his power to issue instructions the number of sponsorship applications for parents and grandparents accepted for processing in 2014 will be limited to 5,000 (covering 9,000 applicants); effectively on a first-come, first-served basis.

Like the historic Oklahoma Land Rush, there will be a mad scramble to file applications in early January as sponsors stake their claim to the limited number of sponsorships. The government isn’t helping the situation. The Minister advised that new application forms and guides will not be posted on the Citizenship and Immigration website until Dec. 31.

When asked about that, the Minister said there wouldn’t be any surprises with the new forms. He urged those intending to apply to get ready and gather the necessary information. He said it doesn’t take a lot of time to get it together, noting he had sponsored a spouse himself. One of the CRA forms usually requested is an Option C printout of a notice of assessment. While you can call the CRA to request the form, it may take a week or two to receive it.

The Minister’s announcement amounted to a shell game. On the one hand the Minister notes the changes will reduce the backlog and waiting time for outstanding applicants.  On the other hand, he hides the fact that fewer potential sponsors will be eligible. In prior statements the government made it clear it wants to reduce parental sponsorship as parents and grandparents are considered to be an economic burden, as they make demands on social and health services that outweigh any benefit their presence may contribute to the economy. That may be a legitimate political policy decision. Unfortunately current politics dictate that political leaders obfuscate policy decisions to offend the fewest number of voters.

There was good news for some from the Minister. A further change proposed in May would restrict eligible children who can be included in any application, either through family sponsorship or economic class applications, to children under age 19 (it would still include children over 18 who are dependent due to mental or physical conditions). The Minster advised that a final decision on that change, which was to start Jan. 1, has been put off until early next year. Public input on that proposal may be making the government think twice about it.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Immigration barriers contribute to visa fraud

The Asian Journal recently reported Richard Kurland’s disclosure of government investigations into immigration fraud in India; an ongoing concern of the Harper government.  As I noted on Nov. 6, the Harper government has increased immigration enforcement spending from $91-million in 2010-11, to $150-million in 2012-13. At the same time, the government has created more selective rules for immigration. The correlation is no coincidence.

Increased enforcement spending coincides with former Immigration Minister, Jason Kenney, touting the government’s initiatives in fighting immigration and citizenship fraud. In July, 2011, he announced measures by the government to combat citizenship fraud In 2012 he announced measures to address marriage fraud, and to increase cooperation with the United Kingdom, Australia and India to combat fraud in visitor and immigration applications.

More details of the immigration department’s efforts to combat fraud in India were recently disclosed by Carol McKinney, the Immigration Program Manager at the visa office in Chandigarh, when she testified before the House of Commons Standing Committee on Citizenship and Immigration on Nov. 26. The Chandigarh office processes temporary resident applications from northern Indian states, primarily from Punjab and Haryana.

Appearing by videoconference from India, Ms. McKinney told the assembled MPs on the committee, that in 2012 the visa office refused 329 applications for misrepresentation discovered through verifications. She added that an estimated 15 to 20 per cent of all refused applications contain misrepresentation of some kind. She noted a lengthy list of fraudulent documents used by various applicants. Prospective students included documents such as fraudulent letters of acceptance, language test certificates, academic records, reference letters and identify documents.

Fraudulent temporary workers often provide phony ESDC labour market opinions and letters for their employment. Visitor visa applicants regularly submit falsified Indian bank statements or falsified documentation from Canada, such as invitations from non-existent Canadians or fraudulent funeral home letters for funerals that are not taking place.

In the past eight years the Chandigarh office has tripled the number of temporary visas issued, to about 18,000 in 2012, with an acceptance rate of 53 per cent, up from 38 per cent in 2004. It handles the workload with six Canadian officers, supported by 19 locally hired staff.

The Chandigarh office added an anti-fraud officer in September, 2012, allowing it to increase its ability to verify information from employers and schools in person. This allows the anti-fraud officer in New Delhi to increase investigations in other parts of India. Ms. McKinney also noted that Chandigarh's new anti-fraud officer has assisted local law enforcement officials, who, particularly in Punjab, have targeting unregistered and unlicensed consultants.

Partnering with other countries, such as Australia, New Zealand, the U.K., and the United States, information provided to the Punjab Police led to a raid in May, 2013, on six Jalandhar-based consultants, resulting in the arrest of their owners and seizure of money, passports, visa applications and suspected false documents.

When asked why the acceptance rate was lower than the 80-per-cent worldwide approval rate, Ms. McKinney said the reason was due to more fraudulent applications and the belief that many applicants will not depart Canada following an authorized stay. She also noted that the acceptance rate has increased through the use of visa application centres (VAC). These privately run outsource centres help with the administration of temporary visa applications by ensuring applications are complete. There are nine VACs in India, with two in Punjab.

Other witnesses before the committee noted the increased demand for visitors from emerging economic markets such as India, China and Brazil. This has put added pressure on government resources to deal with those areas. Funding has increased in the past year for visa offices in those countries. In spite of economic growth in India, Ms. McKinney stated that there is a strong incentive for residents of the Punjab to seek better economic opportunities abroad, particularly among the young unemployed or underemployed. Since many of them do not meet Canada's visa requirements, officials from Canada and from key partner countries are very concerned about the growing evidence of fraud and misrepresentation.

The Times of India on July 28 pointed out that new data based on consumption expenditure surveys shows that income disparity in India is growing and at a rapid clip, despite the changes to India’s economy in the past two decades. People will continue to migrate whenever there is lack of opportunity. At the same time Canada’s immigration policy has become more focused on economic considerations, making more people unqualified to immigrate. Immigration fraud will continue to be a problem, not just from India, so long as economic disparity continues and the barriers to entry get harder.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Perils involved in citizenship adoption applications

When then-immigration minister Diane Finley announced in 2007 the start of changes to the Citizenship Act allowing children adopted abroad by Canadian citizens to obtain citizenship, the new law reduced the differences in treatment between children adopted abroad and children born abroad to a Canadian parent.
Applicants would have to prove the adoptions were legal and genuine, and were not entered into mainly for acquiring status in Canada - a challenge Kulwinder Kaur faced when she applied for citizenship as an adoptee several years ago.

Ms. Kaur’s maternal aunt (massi) and her husband purportedly adopted her in 2002 in Punjab when she was 13 years old. Her aunt in Canada had two sons. She and her husband wanted a daughter. They discussed their desire with her sister and brother-in-law, who agreed to give Kulwinder Kaur up for adoption.
Indian adoption law sets rules as to who may be adopted and who may adopt. Unlike Canada, where all provinces require court approval for adoption, the law in India allows people to carry out their own adoption. The main formality is a giving and taking ceremony, when the child is physically handed over to the adopting parents by the natural parents.

The aunt and uncle thought they had gone through all the formalities necessary to adopt Kulwinder Kaur. A giving and taking ceremony was performed. Notice of the adoption was published in a newspaper. To provide written proof of their action, the aunt and uncle, together with the natural parents, registered a deed of adoption with a court in India.

Unfortunately for Kulwinder Kaur, her new parents took no action to bring her to Canada until 2010. She remained in India, though the new parents appointed a guardian to be responsible for her, while they provided support from Canada.

When Kulwinder was 21 years old, she applied for Canadian citizenship based on the new rules that came into effect in 2007. In 2012 a citizenship officer at the Canadian High Commission in New Delhi interviewed her, along with the guardian and her natural parents. She failed to prove to the officer that a giving and taking ceremony was performed, and that her adoption was genuine. Her only remedy was to apply for judicial review of the decision. That review was held before the Federal Court in Vancouver last month. Justice Michael Phelan, who heard the review, rendered his decision within a week, upholding the officer’s refusal.

A judicial review is a limited form of appeal. Justice Phelan could only consider the evidence that was considered by the citizenship officer. He could only overturn the decision if he found the officer’s conclusions were unreasonable. Based on the evidence before the officer, Justice Phelan decided the decision was reasonable.

When interviewed by the officer in New Delhi, neither Kulwinder Kaur nor the others gave clear evidence that a ceremony took place. The officer was not satisfied about explanations for the lack of visits by the adopting parents and communication with Kulwinder Kaur, and why it took eight years before taking action to have her come to Canada.

The law holds that an applicant must prove they qualify for citizenship. An officer making a decision is not required to find a way for someone to qualify. An uninformed applicant is at a disadvantage, not knowing what evidence is important to show an officer, especially when it deals with legal issues like a giving and taking ceremony. For example, it is the usual practice in Punjab, when registering a deed of adoption, to have all the parties present, including the child being adopted, who will be physically given and taken before the court registrar.

Had Kulwinder Kaur been aware of the importance of this, she or one of the other persons could have told the officer. What is unfair is that the officer probably did not ask about it, though the officer should have been aware of the practice. The Immigration and Refugee Board upheld the Indian court practice as proof of a giving and taking ceremony over 17 years ago (see [1996] I.A.D.D. No. 1032 (QL)).

While Kulwinder Kaur may have proven that she was properly given and taken, the lengthy delay in joining her adoptive parents raised serious questions about the adoption’s genuineness. Getting good advice before starting on such an important matter can help avoid disappointment later on. As shown in this case, an inadequately prepared application cannot be cleared up after the decision is made. 

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com. 

HELPING YOU GET WHERE YOU WANT TO BE

Auditor General fails government on border control

“Every passenger has a ‘story’...it’s our job to dig deeper for the truth,” according to a CBSA border services officer quoted in advertising for the government-supported television show “Border Security.” The Auditor General has apparently found the truth about the CBSA, reporting that the audited systems and practices to prevent the illegal entry of people into Canada are often not operating as intended and that some people who pose a risk to Canadians’ safety and security have succeeded in entering the country. He also found that the RCMP does not know whether resources are placed where they are most effective as part of its responsibility for protecting Canada’s borders.

These findings were in the Auditor General’s annual Fall report filed in Parliament on Tuesday. The Canada Border Services Agency is responsible for preventing illegal entry at ports of entry and relies on several systems and practices to assess the risk associated with each traveler and to make decide if they should be admitted to Canada. The RCMP is responsible for enforcing the law when people cross illegally between ports of entry. They both rely on information gathered from local, Canadian and international sources.

The Agency increased spending on admissibility determination from $662-million in 2010-11 to a forecast spending in 2012-13 of $733-million. However, it plans to reduce its spending on that program to $584-million in 2015-16. The RCMP’s border integrity program is part of its police operation mandate. The Auditor General reports that the Agency and the RCMP spend about $728-million per year combined on their border control activities.

The Agency targets potential inadmissible travelers as soon as it can before they arrive in Canada by issuing lookouts and, for airline passengers, collects information on them before their arrival. It then relies on the judgment of border services officers to identify and intercept inadmissible people. In 2011-12 the Agency denied entry to 54,000 people at ports of entry and intercepted another 4,000 overseas. The Auditor General previously audited the Agency in 2007 and identified weaknesses with the lookout program then. Despite agreeing to make improvements six years ago, the Agency has made little progress and still does not monitor all missed lookouts, nor does it input examination results on all intercepted lookouts. Eight percent of targets and 15 percent of lookouts were missed.

The RCMP uses surveillance cameras, routine patrols, or notifications from the Agency, United States border authorities, or the public to learn of illegal entries. It intercepts illegal entrants and delivers them to the Agency’s local port of entry, and also arrests and takes into custody individuals suspected of helping with illegal entry. In 2011–12 the RCMP intercepted 1,277 people for entering Canada illegally between ports of entry.

The government plans several changes in the next few years, resulting from a 2011 joint Canada–United States plan. It will implement a new interactive advance passenger information program in fall 2015 that will require traveler data for commercial flights be provided up to 72 hours before departure. By July, 2014, it hopes to develop an entry/exit information system to use passenger manifest information for flights leaving Canada to record the exit of individuals from the country. It expected to start a third plan this fall to further automate the Agency’s targeting system based on passenger name records.

The auditor’s report notes that the quality of information provided by airlines was often incomplete, with no advance passenger information provided for six per cent of passengers in the sample it audited. Eleven percent of passengers could not be assessed against any risk scenario because of inadequate passenger name data. Despite this the Agency claims the airlines had a 99-per-cent compliance rate, because it only considered compliance if any advance information was provided. That’s like giving a passing grade to a student if they only showed up for class, regardless if they learned anything. According to the Auditor General none of the measures the Agency uses provides a true picture of how well its controls are working to prevent the illegal entry of people into Canada.

Steven Blaney, the Public Safety Minister responsible for the Agency and RCMP, responded Wednesday by saying, “We take our responsibilities very seriously when it comes to ensuring the safety and security of Canadian communities.” Given the findings by the Auditor General that neither entity adequately measures its effectiveness the response appears hollow. It will need more than the hype for the “Border Security” show to prove that it is ensuring the safety and security of Canada’s borders.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Fraser Institute continues assault against family immigration

On May 25 I wrote about then Immigration Minister Jason Kenney’s announcement to reinstate the processing of applications to sponsor parents and grandparents which was suspended in November, 2011.  While increasing the number of applications processed each year to reduce the large backlog of existing applications, the government intends to introduce new rules for new applications starting in January, 2014, which will make it harder to sponsor parents and grandparents. The government’s proposals have received a mixed response from the Fraser Institute in its latest report on immigration policy.

While the proposed rule changes have not yet been formally approved and published, the government has given no indication that it will change any of its proposals. When the government resumes receiving new sponsorship applications for parents and grandparents in January, 2014, it will limit new applications to 5,000 per year. The changes include increased income requirements for sponsors, impose a 20-year undertaking for sponsors to be responsible for the relatives and ending sponsorship of dependent children at age 18.

On Tuesday, the Fraser Institute released its latest immigration report, entitled “Canadian Family Class Immigration: The parent and grandparent component under review,” written by Martin Collacott, a long-time critic of immigration policies. In 1997, soon after he ended a 30-year foreign service career and before he began authoring reports with the Fraser Institute, Mr. Collacott expressed the opinion that Canada was eroding its achievements in integrating immigrants by allowing in large numbers of people who were ill-equipped to participate in Canada.

In 1998 he used the assassination of Tara Singh Hayer as an opportunity to push for changes to immigration policy and blaming a lack of change on vested interests and well-intentioned advocacy groups. In 2000 he took his crusade against existing Canadian immigration laws before the U.S. Congress, testifying that lax laws made it easy for terrorists and their sympathizers to raise funds within Canada. Since then he has authored several dozen articles and reports with the Fraser Institute.

In his latest report Mr. Collacott says Canada needs to ensure that taxpayers are adequately protected from assuming the costs of support and medical care for sponsored parents and grandparents. He implies the government should have cancelled some, if not all, of the outstanding sponsorship applications because of those costs. He suggests the failure of the government to do this was to curry favour with eligible voters in the next election, ignoring a basic legal concept against retroactive legislation.

Mr. Collacott argues that the proposed changes requiring sponsors to take more financial responsibility for supporting their parents and grandparents don’t go far enough as taxpayers will still bear much of the expenses of older sponsored immigrants who may be eligible for Canada’s various income support programs. He suggests tougher provisions, proposing that Canada consider copying policies used by Australia.

Under a balance-of-family test a sponsor must have at least half of their siblings already living permanently in Australia, or at least more of them living permanently in Australia than in any other country, in order to sponsor parents. This has resulted in fewer parents immigrating to Australia. He incorrectly states that Australia also requires a sponsor to pay significant visa fees for a contributory parent visa, though it does require an assurance of support and financial bonds for the required support period. Mr. Collacott also recommends the government look at requiring sponsors to purchase comprehensive health insurance for parents or grandparents they want to bring to Canada to reduce the strain on the public health care system.

As with most reports from the Fraser Institute, it bases its recommendations on economic factors, from selectively chosen studies. In Mr. Collacott’s case, he draws some conclusions without objective data. For example, his opinion that the economic benefits of having sponsored parents and grandparents available for child care in reducing the burden on government-funded facilities and enabling greater labour force participation by sponsors, would unlikely come close to offsetting the health care and other costs to taxpayers of those sponsored.

Don’t expect this report to influence the government in making any more changes to the rules for sponsoring parents and grandparents in the near future. A more critical analysis of the report will likely reveal more errors. Immigration issues are open to legitimate debate. That includes arguments that public policy should not be based solely on economic factors. There are intangible factors, which are not quantifiable on a ledger sheet, which ought to be considered and weighed in making political decisions affecting conflicting interests.

 William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Immigration relief for Filipinos affected by typhoon

As a result of the national calamity in the Philippines created by super typhoon Yolanda, Immigration Minister Chris Alexander announced Thursday that Canada will be prioritizing the processing of applications on request from Filipinos who are significantly and personally affected by the typhoon.

Applications from Filipino citizens to extend their temporary stay in Canada will be considered in a compassionate and flexible matter. Citizenship and Immigration Canada will receive requests for priority processing by email at situation-philippines@cic.gc.ca or through a dedicated crisis line at its Call Centre at 1-888-242-2100.

Overseas applicants, who have applied for temporary or permanent visas, may contact the visa office in Manila, to declare their case as a priority, by email at manila-im-enquiry@international.gc.ca. The visa office will consider applicants who can demonstrate they are significantly and personally affected by the typhoon, with priority given to those in affected areas.

The government responded in a similar manner following the Indian Ocean tsunami in 2004 and the catastrophic earthquake in Haiti in 2010. Instructions were given in 2010 for priority processing of applications in Canada and abroad, waiving certain fees and requirements to have travel documents. The extent of the government’s relaxation of requirements will not be known until the government issues a detailed operational bulletin, so it is advised to keep informed by regularly checking the immigration website at www.cic.gc.ca.

The Filipino community is making an increasing contribution to the social and economic development of Canada. Since 2006, the Philippines has been the second largest source of immigrants, with 32,747 Filipinos arriving in 2012. As of the 2011 census, 662,605 persons identified themselves as Filipino, including 133,995 in British Columbia; making it the third-largest non-European community in the country. In addition, 47,470 Filipinos were in Canada on Dec. 1, 2012, as temporary workers.

Canadians are responding to the plight befalling those in the Philippines. The Government of Canada has pledged up to $5-million for assistance, as well as sending a disaster relief team. Fundraisers have been organized across the country as Canadians of all stripes worth together to help those in need..

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Immigration creates winners and losers with CEC changes

The announcement late last week that the Immigration Department is capping applications to the Canadian Experience Class at 12,000 applications and cutting out certain occupations for eligibility is another example of the government’s flexibility in addressing labour market needs through ministerial instructions. It is also penalizing certain workers brought to Canada under the government’s temporary foreign worker program.

The Canadian Experience Class was created in 2008 to allow certain temporary foreign workers and foreign student graduates with managerial, professional, or technical or trade work experience to apply to become permanent residents. It fit a stated emphasis on the economy, as a means, in the government’s words, of retaining talented and motivated individuals who have demonstrated a strong work ethic, have an ability to contribute to the economy, and will easily integrate into Canadian life.

The basic requirements for the program require an applicant to have at least 12 months of full-time (or an equal amount in part-time) skilled work experience in Canada in the three years before they apply. They must also have gained their experience in Canada with the proper authorization, meet required language levels needed for your job for each language ability (speaking, reading, writing, and listening), and have the experience in managerial jobs, professional jobs, and technical jobs and skilled trades. The government has approved about 25,000 applicants through the program since it was introduced and expects to approve about 10,000 applications this year.

At the same time the current government has opened up the doors to a large number of temporary foreign workers. The numbers increased from 140,650 at the end of 2005, to 338,213 at Dec. 1, 2012. This has occurred despite an increase in the unemployment rate during the same period. Since 2007 the Philippines has been the largest source country for workers in Canada as of Dec. 1 each year, with 47,470 present as of Dec. 1, 2012. It is followed by the United States, Mexico, India, France and Australia. 

More recently the government fast-tracked work permit approvals in Alberta and British Columbia. The Alberta Federation of Labour (AFL) claims that more than 2,400 permits, many in Alberta, were approved for workers in fast-food restaurants, convenience stores and gas stations. The Federation also claims that in 2012 there were more than 200 complaints about labour standard violations in Alberta, with nearly half found to be legitimate.

The BC Chamber of Commerce has noted that with dramatic increases in foreign workers in Northeastern BC and across the country, there has been an increase in the number of complaints from foreign workers regarding abuse and mistreatment. In September the BC Human Rights Tribunal ordered Tim Hortons to disclose the information related to four temporary foreign workers from Mexico who claim they were discriminated against by their employer in Dawson Creek.

The influx of foreign workers led to a public backlash earlier this year after several cases became public. The Royal Bank of Canada brought in temporary workers to train for dozens of soon-to-be-outsourced Canada-based jobs and a Chinese-owned mining company, HD Mining, was approved to import Chinese coal mining workers into British Columbia. The government has responded with some changes to the temporary worker program, including the introduction of a fee for employers seeking approval to hire foreign workers.

The specific occupations which have been made ineligible under the Canadian Experience Class includes cooks, food service supervisors and retail sales supervisors; the same occupations which the government appears to have helped expedite in handing out temporary work permits according to AFL President Gil McGowan. In a Postmedia story, Mr. McGowan states “They were screwed by being brought into the country to act as pawns to drive down wages and conditions. Now they’re having the door closed in their faces when it comes to access permanent residency.”

The caps and restrictions imposed by the government are under legislative powers enacted by Parliament in 2008. They give the Immigration Minister tremendous administrative flexibility to determine processing levels and cut down on applications being processed through the issuance of Ministerial Instructions. In some cases, they appear to retroactively change the rules by which a person may apply for permanent residence. In this case, under the latest Ministerial Instruction, some temporary workers who came to Canada with the expectation they may be able to apply to remain permanently may be out of luck.The changes are effective Nov. 9, 2013.

However, all is not lost for some of the temporary workers. In British Columbia some may still be eligible to apply for permanent residence under the province’s Provincial Nominee Program, either as skilled workers, entry-level or semi-skilled workers, or under the Northeast Pilot Project. There are similar categories under Alberta’s immigration program. With Ministerial Instructions, the immigration rules change regularly so current advice is always required.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Omnibus bill sets out changes to implement Expression of Interest program

Bill C-4, tabled by Finance Minister Jim Flaherty just over two weeks ago, includes changes to the Immigration and Refugee Protection Act to implement the government’s proposed Expression of Interest immigration management system. It is the second omnibus bill with measures related to the government’s Economic Action Plan 2013 budget introduced on March 21.

In his budget speech, Minister Flaherty gave notice the government intended to amend the immigration system to attract skilled workers, to retain foreign students after they graduate, to speed up the movement of skilled workers, to attract new businesses, and to help new Canadians integrate quickly and find and keep good employment.

In budget documents tabled the same day, the government confirmed its intention to create a “Expression of Interest” immigration management system that would allow Canadian employers, provinces and territories to select skilled immigrants from a pool of applicants that best meet Canada’s economic needs. The budget paper also contained promises to improve the foreign credential recognition processes, reform the temporary worker program, test new approaches to attract immigrant investors, increase funding to process temporary workers, improve the processing of citizenship applications, and attract more students and foreign researchers.

Bill C-4 makes changes to the immigration act to provide a framework for inviting applications for permanent residence from selected applicants who have submitted an expression of interest in migrating to Canada.

Expression of interest submissions will apply only in respect of economic class immigrants. The expression of interest must be submitted electronically, unless allowed by other means. Applications from persons inadmissible for misrepresentation will not be accepted. Nor can an applicant submit a new expression of interest before a prior submission has expired. To prevent applicants from seeking exemptions from any criteria or obligation under this program on humanitarian and compassionate grounds, the Minister may not examine such requests.

To provide greater flexibility, the rules for carrying out the administration of the program will be established by ministerial instructions, rather than by changes to the Immigration and Refugee Protection Regulations. A detailed list of the type of instructions the minister may enact is set out in the proposed subsection 10.3(1) of the amended act. It includes instructions setting out the economic classes to which the invitation process will apply, eligibility time periods, ranking of applicants, the number of invitations that may be issued within a specified period and the time period for submitting a permanent residence application after an invitation is issued.

All instructions must be published on the Department of Citizenship and Immigration website, with only some of them having to be published in the Canada Gazette. The changes will also authorize the government to release an applicant’s personal information to specified entities to facilitate the applicant’s selection as a temporary resident or economic class member. Which information and the list of entities will be established by ministerial instruction.

In a news release issued last week the immigration department stated it expects the new system to start on Jan. 1, 2015. The proposed legislation includes an enacting clause to allow the government to bring the proposed changes into effect on the dates it chooses.

This active recruitment system will allow Canada to select potential immigrations from a pool of interested persons. There will be no legal obligation to offer anyone an invitation to apply for immigration, thus avoiding the drawback of the current passive economic immigration system which requires the government to consider all applications submitted to it.

The Immigration Department explains that the expression of interest system will work in two steps.  First, prospective immigrants will indicate their interest in coming to Canada by providing information electronically about their skills, work experience and other qualifications. The department will place applicants who meet certain eligibility criteria in a ranked pool. Employers that cannot find domestic workers who meet their skill requirements will be allowed access to personal information about prospective applications in the pool to find suitable candidates. The department will offer invitations to the best candidates, including those with in-demand skills or with job offers from prospective employers, to apply for a visa.

Application backlogs are not expected to accumulate and processing times will be kept at a minimum as prospective applications are removed from the pool if they are not chosen after a period of time. Applicants will be assessed on a variety of other factors such as education, work experience and language ability, as the needs of the Canadian labour market change.

When implemented, the new system will allow potential immigrants greater certainty within relatively short time frames to know whether or not they may be accepted as immigrants. Registered employers, who meet specified requirements, may find it as an effective means to recruit qualified people for their long-term needs. The services a prospective applicant may need will not be known until details concerning the requirements the applicant has to provide at the first step in the process are known. Prospective employers will still have to satisfy labour market opinion requirements to access the system. In any event, it will be a significant change for both applicants, employers and service providers.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by email at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Immigration enforcement snares misleading residents

When Janilee Reyes, a permanent resident, married in the Philippines in January, 2008, she probably did not consider that it would lead to her removal from Canada. However, earlier this year the Federal Court confirmed a decision to remove her from Canada. What had she done wrong? She had made a misrepresentation when applying to sponsor her husband to Canada, making her removable.

Before June, 2002, a permanent resident could only be removed for misrepresentation if it related only to receiving their own permanent resident status. Since then, under the current immigration law, the grounds for removing a permanent president include misrepresentation for any immigration matter.

It took about six years before the Canada Border Services Agency took someone to court under the new law, about the same time Ms. Reyes committed her misrepresentation. When she married in January, 2008, Ms. Reyes signed a false declaration claiming that she had lived with her intended husband for five years in order to expedite her marriage by avoiding the need to obtain a marriage licence. That action made her marriage void from the start, so she was not entitled to sponsor her husband to Canada when she submitted an application for him in March, 2008.

A month after Ms Reyes filed her sponsorship, the Border Agency brought Fakhar Niaz before the Immigration and Refugee Board to remove him for failing to disclose a bigamous marriage. He had married a second wife in Canada after he marrying his first wife in Pakistan, who he subsequently applied to sponsor to Canada.

When the Border Agency learned of the second marriage it started an admissibility hearing to determine if Mr. Niaz should remain in Canada. Admissibility hearings involving permanent residents are held before a member of the Immigration Division of the Immigration and Refugee Board. When the case was heard in 2008, the board member dismissed the case, holding that the law did not apply to cases involving misrepresentation beyond their own application for status.

On an appeal by the government in 2009, the Immigration Appeal Division reversed the decision, holding the new law applied to misrepresentation in any immigration proceeding. Fortunately for Mr. Niaz, that board member found sufficient humanitarian reasons to let him remain in Canada. Ms. Reyes was not so lucky. The same board member in her case decided she would not face any hardship if she returned to the Philippines. Her last hope was to apply to the Federal Court for judicial review. In January this year, Justice  Hansen upheld the decision, finding the board member’s interpretation of the law to be reasonable.

The Federal Court decision confirms the Border Agency’s power to start removal proceedings against permanent residents who make misrepresentations in any immigration matter. While the cases that have been decided so far have dealt with family class sponsorships, the law could be applied in other kinds of situations, including job offers for temporary workers, permanent residents and provincial nominees.

The Border Agency saw its immigration enforcement spending increase from $91-million in 2010-11, to $150-million in 2012-13.  The government plans to spend $140-million on enforcement in both of the next two years. The government sees this as part of its program to improve the integrity of Canada’s immigration and refugee programs, aimed at reducing the abuse of the refugee determination system, and combating immigration fraud and human smuggling. In 2012, the Border Agency removed about 18,800 persons from Canada, a 27-per-cent increase from 2009.

The increased enforcement fits the current government’s self-portrayal as being tough on crime and having a strong law-and-order approach. In the past three years the government introduced several amendments to immigration law under the such subjectively named titles as the Faster Removal of Foreign Criminals Act and the Protecting Canada’s Immigration System Act.

The former Immigration Minister, Jason Kenney,  touted the government’s initiatives in fighting fraud on numerous occasions. In July, 2011, he announced measures by the government to combat citizenship fraud by increasing the number of citizens who would have their citizenship revoked, with a tip line set up in September that year. Last year he announced measures to address marriage fraud, and to increase cooperation with the United Kingdom, Australia and India to combat fraud in visitor and immigration applications.

The Border Agency has also involved itself with the controversial infotainment program “Border Security: Canada’s Front Line,” which it views as a means of educating the public about its mandate to enforce immigration laws. Given the ongoing budgetary support, the Border Agency will continue its stepped-up enforcement action to remove unwanted persons from the country, including permanent residents who mislead immigration officials in any matter, those who take part in fraudulent marriages and those who lie about meeting the residency requirements for citizenship.

Misrepresentation is viewed as a serious matter attacking the integrity of the immigration system. Permanent residents who get caught committing such acts will face removal from Canada, unless they can show compelling reasons why they ought not to be removed. Few cases will be viewed with sympathy, either by immigration appeal judges or the public. These matters require strong, effective legal representation.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Annual immigration report glosses over contentious issues

On Monday this week Immigration Minister Chris Alexander stood in the House of Commons to announce the filing of the 2013 annual report on immigration. It was a perfunctory performance, lasting less than a minute, unaccompanied by any speech or comment on the report’s contents. Mandated by the Immigration and Refugee Protection Act, the report includes a description of activities and initiatives undertaken by the Immigration Department in the previous year. As well, it lists the number of persons who became permanent residents and the number projected to become permanent residents in the next year; including those entering under provincial immigration programs. The report usually lauds the government’s achievements and sets the tone on what matters most to the government.

This year’s report is no exception. The Minister’s introductory message notes the government’s focus on economic interests. He states, “For Canada to remain competitive in the global economy and support our national interests, we must ensure our immigration system is designed to best meet our current and future labour market needs.” The government plans continue high levels of immigration to Canada, with 240,000 to 265,000 new permanent residents expected in the next year.

A news release issued by the Immigration Department after the report’s release indicate that economic class immigration will increase to 63 per cent of all permanent residents in 2014, with 26 per cent admitted under the family class and 11 per cent admitted as refugees and on other humanitarian grounds. As well, under the economic class, up to 47,000 permanent residents will be admitted under provincial nominee programs. Provincial programs are viewed as strengthening local economics by allowing provinces to select immigrants to meet specific labour market needs and promote business development.

The number of permanent residents admitted under the Canadian experience class will also increase, to 15,000 in 2014. While not new, the annual report provides details on the government’s intention to start a new method of selecting economic immigrants in 2015, under what is called an “Expression of Interest” management system.

Copied from immigration programs in Australia and New Zealand, an EOI system allows prospective immigrants to indicate their desire to move to Canada by providing information about their qualifications. Eligible applicants will have their information posted on-line, to allow potential employers to select specific applicants. Those that receive job offers or who have in-demand skills will be invited to file immigration applications, which the government will process on a priority basis. The government expects an EOI system will reduce backlogs and keep processing times to a minimum.

Lost in the spin highlighting the government’s achievements and goals of working to improve the economy is the long-term reduction of the program for sponsoring parents and grandparents, known by its bureaucratic acronym, PGP. The government is still committed to changes beginning in January, 2014, which will reduce the number of new sponsorships for parents and grandparents. New rules will require sponsors to sign longer-term undertakings (20 years) to support these relatives, increase the required income to sponsor them and increase the qualifying period for proving the required income level to three years.

On Tuesday, in an attempt to appear supportive of family sponsorship, the Immigration Department issued another news release, stating the government’s intention to reduce the PGP backlog. Anyone sponsoring parents knows that wait times have increased up to eight years in some cases. The government expects it will have admitted up to 50,000 parents and grandparents in 2012 and 2013, with 20,000 more added in 2014. 

While existing applications will benefit from these measures, future sponsors will be limited to a cap of 5,000 applications each year (involving 9,000 immigrants), if they meet the more stringent sponsorship qualifications. This sleight-of-hand will see the backlog of applicants reduced to about 42,000 by the end of 2015. The release notes the government’s program to issue super visas, allowing parents and grandparents to come to Canada as visitors for up to two years, implying that it is acceptable substitute for permanent sponsorship. It has approved 26,000 visas since the end of 2011, which is fewer per year than would have been sponsored previously for permanent residence.

Tuesday also saw the release of second news release advising that the government will increase the number of live-in caregivers granted permanent residence in the next year to 17,500. Live-in caregivers are admitted as workers who, after completing two years work, may apply for permanent residence. The government allowed a backlog to develop in processing their permanent resident applications by failing to increase processing levels, despite allowing more into Canada as temporary workers.

The annual report does not address the issue of temporary foreign workers admitted to Canada. The latest immigration statistics show that 125,000 temporary workers were admitted in the first six months of this year, a 5-per-cent increase from last year. New rules restricting language requirements, mandating equal pay for foreign workers and requiring employers to pay a $275 processing fee came into effect in July. It is not known yet if these measures have decreased the number of temporary workers admitted to Canada.

The annual immigration report is another attempt by the government to sell itself as a competent manager of the economy. Immigration measures planned for 2014 continue to focus on the means of attracting permanent residents who will benefit Canada, and who are not a drain on health or social services. It glosses over contentious issues, such as whether or not current policy is meeting other objectives of immigration law, such as reuniting families in Canada, and maximizing social and cultural benefits of immigration. The results of the governments measures will not be known for several years, by the time the government seeks renewal of a mandate to govern in 2015.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

New Immigration Minister to face continuing challenges

On July 15 Prime Minister Stephen Harper announced the appointment of Chris Alexander, MP for Ajax-Pickering in Ontario, as the new Minister of Citizenship and Immigration, replacing Jason Kenney. Mr. Kenney had been the Immigration Minister since October, 2008, the longest tenure for an immigration minister since Charles Stewart held the position in the 1920s.

Mr. Alexander has publicly acknowledged that he has “big shoes” to fill, as Mr. Kenney has left large imprints on the immigration ministry and immigration policy. Mr. Kenney hasn’t left the field entirely as he will still have an impact through the implementation of the Temporary Foreign Worker Program as part of his responsibilities as the new Minister of Employment and Social Development.

During his tenure Mr. Kenney was responsible for several significant legislative changes to immigration legislation and regulations, many under the guise of public safety and crime protection issues. In 2010 Parliament passed the Balanced Refugee Reform Act which tightened the procedures for determining refugee claimants and removing failed claimants. Amendments in 2011 provided for greater regulation of immigration consultants. Under the 2012 Safe Streets and Communities Act immigration officers are empowered to refuse work permits to workers in vulnerable occupations subject to abuse. The Protecting Canada’s Immigration System Act in 2012 made further changes to the determination of refugee claimants in Canada and imposed restrictions on persons who arrive in Canada through organized smuggling. Finally, last month Parliament passed the Faster Removal of Foreign Criminals Act which makes it possible to deport permanent residents without appeal if convicted of serious criminal offences and sentenced to at least six months in prison.

Much of immigration policy is carried out through regulations. Under Mr. Kenney’s watch the regulations have been amended for various reasons, including eliminating some health services for refugee claimants and the creation of conditional visas for spouses in an attempt to reduce marriage fraud. He has been responsible for changes to eliminate the backlog of permanent skilled worker applications, wasting years of wait for many applicants.

The restrictions on health services for refugee claimants generated significant backlash, particular in the healthcare community. Fraud has been a major focus of the Immigration Department and the Canada Border Services Agency for the past few years, whether it be marriage fraud, misrepresentations made during immigration applications, and fraudulent claims of residency in citizenship applications.

Mr. Kenney’s last significant act was to announce proposed rule changes, to come into effect in 2014, that will restrict the ability of citizens and permanent residents to sponsor parents, and to limit the age of dependent children who may accompany immigrants to Canada under all categories to age 18 and younger.

The government’s purported priorities are job creation and the economy. Immigration policy, particularly under the current government, has changed – to use immigration as a means of meeting Canada’s economic needs. There has been less emphasis on family and humanitarian immigration categories. There has been a shift to meet short-term employment needs through temporary foreign workers. Some critics argue the changes have gone too far, with not enough public resources spent on job retraining of existing Canadian workers. They wonder why Canada continues to import more temporary foreign workers when the unemployment rate for young Canadians remains high.

The government faced political heat over two cases in the news since last year, with the proposed hiring of Chinese miners at the HD Mining site in Northern British Columbia and the Royal Bank of Canada’s training of foreign workers in Canada for future outsourcing of jobs. The government has yet to announce the results of its review of the temporary foreign worker program undertaken as a result of public outcry over these two cases.

Part of the problem is that job retraining is considered a matter of provincial responsibility and the provinces have not agreed what role the federal government should play. Until that is sorted out and political decisions are made on spending public monies to retrain Canadians, the federal government will probably continue to use temporary foreign workers as a solution for worker shortages in many occupations or to meet regional economic requirements.

While the immigration department and the border agency have increased resources for enforcement issues, the government has downloaded the cost of immigration selection to provinces by allowing them to select more immigrants. The government has centralized more immigration processing to fewer offices. Federal selection programs require applicants to spent more money to provide objective proof of their occupational and language qualifications. In an attempt to operate more efficiently there is less face-to-face contact with applicants.

There continue to be problems with citizenship applications and legislation. Conflicting decisions of the Federal Court over the residency requirement for grants of citizenship have existed for the past 20 years creating uncertainty and unfairness for applicants. Parliament has twice failed to pass a new citizenship law in the past 14 years. The government faces calls to restore or grant citizenship to persons born before 1947, who would otherwise be citizens if they were born after 1946.

Mr. Alexander will face all of these issues as the new Minister of Citizenship and Immigration. Some issues, such as the use of temporary foreign workers, require agreement with several federal departments as well as the provinces and is not something he can resolve alone. I expect he will face a growing backlash over the proposed age limits on dependent children. The rule change will result in decreased parental sponsorship and a shift in the age range of potential economic immigrants, as fewer immigrants in their 40s with children older than 18 will likely apply to come to Canada. Given Canada’s aging demographics that may be the government’s intention. Mr. Alexander will have to use his skill as a former diplomat to navigate his way through the public perception that the government’s immigration policies are too focused on economic goals.

William Macintosh started practising immigration law in 1984. You can reach him for advice at 778-714-8787.

Parliament and Federal Court fiddle while conflicting residence tests burn

Lawyers have known for years the unfairness of the three disparate tests applied by citizenship judges in deciding whether an applicant meets the residency test for citizenship under section 5 of the Citizenship Act. The inequity of the situation was recently highlighted in a decision handed down by Chief Justice Crampton of the Federal Court. In Huang v Minister of Citizenship and Immigration, 2013 FC 576, the Chief Justice said, “This case is yet another example of why something needs to be done to address the unacceptable state of affairs concerning the test for citizenship in this country.” His remarks are slightly more temperate than the comments of Justice Muldoon, who, as early as January, 1998, in Re Ten, 1998 CanLII 7296 (FC), said the situation created “a scandalous uncertitude in the law.” The irony of Justice Muldoon’s comment is that he helped create the incertitude in the law.

The scandalous situation involves the interpretation of “residence” in paragraph 5(1)(c) of the Citizenship Act. That provision requires that a citizenship applicant have three years of residence in Canada within the four years before applying. The term is not defined in the law, so it was left to Federal Court judges, on appeals from citizenship judges, to determine what the word meant. In 1978, in Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, then Chief Justice Thurlow decided residence meant where an applicant had centralized his mode of living. In 1992, Justice Reed decided in Re Koo, [1993] 1 FC 286, that residence was where an applicant regularly, normally or customarily lived. Finally, in 1993 in Re Pourghasemi (1993) 62 F.T.R. 122, Justice Muldoon, certain his interpretation was correct and the others were, as he later described,  “ignoring the law,” decided residence meant physical presence. Comity, or unity of judgement in the Federal Court on the issue, has since yet to be found.

From that point onward citizenship judges have had three different standards to choose from. As new judges are appointed, they fall into one school of interpretation or another and any applicant with less than three years physical residence is left with the randomness of which judge they appear in front of. Relief through Federal Court was uncertain, depending on which school of thought the judge hearing an appeal sat in.

Normally an appeal court could sort out conflicting decisions. However, the Federal Court has the last word on the matter as the Citizenship Act expressly prevents an appeal from that court. So long as judges of the Federal Court hold conflicting opinions on the issue, applicants before a citizenship judge face unequal treatment under the law, depending on which judge decides their fate. Hence Chief Justice Crampton’s plea that Parliament should amend the Citizenship Act to expressly define residence. However, the government has attempted twice to change the law, in 1998 and 2010, without success.

Beside an amendment by Parliament, Chief Justice Crampton suggested that a citizenship judge bring a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act. That could be appealed to the Federal Court of Appeal, which could finally settle the different interpretations in the Federal Court that have lasted for the past 20 years. I would be surprised if a citizenship judge took the initiative to start such a reference.

I suggest it may be possible for an applicant to seek a remedy by means of judicial review through a provincial superior court or possibly the Federal Court, following the Supreme Court of Canada decision in Kourtessis v. MNR, [1993] 2 SCR 53. The court upheld a judicial review of a search warrant, from which the Criminal Code allowed no appeal, where a Charter right is at stake and no other effective remedy is available for vindicating it. Citizenship applicants are denied due process under section 7 of the Charter of Rights and Freedoms  by the unequal treatment of law due to conflicting decisions. An appeal to Federal Court under the Citizenship Act does not provide an adequate remedy. If the review court accepts jurisdiction, an appeal could lie to a higher court that would settle the issue once and for all. Of course, all of this depends on finding an applicant willing and able to take their case through the courts. It is an point worth giving further consideration.

Government gives second chance to take citizenship test

Citizenship and Immigration Minister Jason Kenney announced Monday changes to test rules for citizenship applications in hopes of reducing the growing backlog of applicants awaiting approval. Under the changes, applicants who had failed the required knowledge test will be given a second opportunity to write the exam, instead of awaiting a retest before a citizenship judge.

Under the Citizenship Act applicants for citizenship must pass a language test and a knowledge test. The tests are administered by a citizenship officer. If failed, applicants have to redo the tests before a citizenship judge. The Minister also announced that it will approve family members on their own merit. Previously, when one member failed a test, all the other family members would have to wait for the one member to pass the test before allowing them to continue on the process. The next step after passing the tests is an oath ceremony before a citizenship judge, at which time the applicants are formally granted Canadian citizenship.

According to the National Post, there is currently a backlog of 350,000 citizenship applications, with waits up to 29 months for a final hearing before a citizenship judge in Montreal and Vancouver.  The government processes up to 200,000 citizenship applications a year. Under new procedures, applicants who fail the knowledge test will be informed of the decision immediately and given a chance to rewrite the exam within four to eight weeks. The new procedure will apply retroactively to persons who have already failed the test.

The policy of treating family members separately is a belated recognition of the legal fact that under the Citizenship Act, each spouse has their own right to a decision that is not dependent upon the other spouse. Treating them together was an administrative practice and an unnecessary hurdle, inconsistent with the law. Prior to the change, an applicant could write to separate their application, usually providing a compelling reason why they should be treated separately. That will no longer be necessary and it avoids the burden of applicants applying to Federal Court for an order to compel a separate decision.

Part of the increased delay in processing applications has been due to the government’s crackdown on fraudulent applications by applicants who do not meet the residency requirement under the citizenship rules. In the past year the government has sent out detailed residency questionnaires to more than 20,000 applicants, to assess whether or not they meet the qualifications. The residency test is not settled in law and there are many factors, beside physical presence in Canada, that a citizenship judge may consider before deciding if an applicant be granted citizenship. Failing approval from a citizenship judge, an applicant may appeal the refusal to the Federal Court.

I provide advice or assistance with completing a citizenship application, particularly if you are concerned about meeting residency requirements. Early assistance with an application may save time and money, and avoid future court applications to determine your right to obtain citizenship.

William Macintosh is an immigration and citizenship lawyer, with experience since 1984. He may be contacted at 778-714-8787 or by e-mail at wjmacintosh@hotmail.com.

HELPING YOU GET WHERE YOU WANT TO BE

Foreign miners hiring approval upheld by Federal Court

On Tuesday the Federal Court upheld a decision by a Human Resources and Skills Development Canada (HRSDC) officer to approve ten labour market opinions (LMOs) allowing HD Mining International Ltd. to hire 201 Chinese miners to extract a bulk coal sample at its Murray River Project near Tumbler Ridge, B.C.

Mr. Justice Zinn’s decision is the first case to examine the government’s Temporary Foreign Worker Program (TFWP) and the power to issue LMOs under section 203 of the Immigration and Refugee Protection Regulations. The April, 2012, decision by Officer MacLean was challenged by two unions, the Construction and Specialized Workers’ Union and the International Union of Operating Engineers, acting in the public interest.

With few exceptions, a foreign worker must obtain a permit to work in Canada. In most cases, in deciding to issue a work permit an immigration officer must determine, on the basis of an opinion provided by HRSDC, whether the employment of the foreign worker is likely to have a neutral or positive effect on the labour market in Canada. The opinion, known as the LMO, is based upon six factors set out in Regulation 203(3). They include whether the employment of the foreign national will likely result in direct job creation or job retention for citizens or permanent residents, in the creation or transfer of skills and knowledge for the benefit of citizens or residents, or fill a labour shortage; and whether the wages offered are consistent with prevailing wages and the working conditions meet generally accepted standards, whether the employer has made, or has agreed to make, reasonable efforts to hire or train Canadian citizens or permanent residents, and whether it would affect any labour disputes.

Justice Zinn found the officer did not fetter his discretion when assessing the LMO application, or make any unreasonable assessment when considering the factors set out in Regulation 203(3). He determined that it is not necessary for an applicant to satisfy all of the six factors. The HRSDC officer has to examine each factor and can assess what weight is given to each factor. In HD Mining’s case, the officer found that while the company did not show positive job creation or skill transfers factors, all of the other factors were positive so the LMO would be issued.

The unions challenged the efforts of the company in hiring Canadian workers, pointing out that very few Canadian applicants were interviewed for positions. The court found no error by the company in fulfilling advertising requirements set out by HRSDC. Furthermore, it found that the small number of Canadian interviewees did not give rise to any concern that recruitment efforts were not genuine. The officer had not sought to review any resumes submitted by any applicants. Justice Zinn stated that the HRSDC officer “is not a human resources specialist or a recruitment officer” and he “would be very surprised if a review of the resumes would have been any more meaningful to the officer than to the Court.”  He added, “an employer must be given some latitude in its hiring even within the TFWP.”

The case provides guidance for employers in recruiting temporary foreign workers. HRSDC will establish advertising requirements after its assessment of the labour market situation for the specified occupation. The employer will have to keep detailed records of its advertising and recruiting efforts, but will be given latitude in its hiring decisions. An employer may have to produce such records. The decision does not address what factors are relevant in rejecting potential Canadian applicants, as it was not necessary in this case. Finally, an LMO application has to address all the factors set out in Regulation 203(3), but does not have to positively satisfy all the factors.

The government is continuing to review the TFWP to ensure it is working in the best interests of Canadian workers and businesses. Since this case upholds the current process, I do not expect any major changes to the procedure.

Changes to immigration rules toughen family sponsorship

Earlier this month, Immigration Minister Jason Kenney announced the results of a long-awaited review of the immigration program for sponsoring parents and grandparents, which was suspended in November 2011. The Minister suspended the program by putting a moratorium on new sponsorship applications for 24 months in order to reduce a backlog of 165,000 applicants, stretching up to eight or nine years.

The government will resume receiving new sponsorship applications for parents and grandparents in January 2014, though limited to 5,000 applications. In the meantime it expects to reduce the backlog by approving 50,000 applicants in 2012 and 2013, and will approve an equally high number in the coming years. The Minister announced four changes to the rules for sponsoring parents and grandparents starting in 2014. The changes will make it tougher for residents and citizens to sponsor their parents and grandparents.

Sponsorship of parents and grandparents has been an integral part of family class immigration under immigration law since 1978. Family sponsorship is one of three basic immigration streams, the others being economic immigrants and humanitarian immigrants.

Since 1978 sponsors have had to meet a minimal household income level set out in low income cut-off (LICO) figures published by Statistics Canada. The number of the sponsor’s family in Canada and family members being sponsored determines the level required. Parents and grandparents can include dependent children in their applications. The definition of who qualifies as a dependent child has varied over the years. Under the program, an immigrant, within a few years after arriving in Canada and establishing sufficient income, could sponsor their parents and remaining qualified siblings to come to Canada.

Sponsors also sign a contract, known as an undertaking of assistance, to be responsible for their parents or grandparents and their dependants for a period of time after they arrive in Canada. They also agree to repay to the government any welfare payments received by the sponsored relatives during the responsible period. Provincial governments didn’t begin suing sponsors to recover welfare payments received by sponsored relatives until the 1990s. In 2002 the current Immigration and Refugee Protection Act came into effect, keeping the sponsorship of parents and grandparents in place, with some changes to rules for the enforcement of undertakings and to the required income levels for sponsorship.

The first change announced by Minister Kenney is to increase the sponsor’s minimum necessary income by 30 per cent above the required LICO figure. For example, a married sponsor with two dependent children sponsoring two parents will have to have a minimum household income of $55,378 plus the extra 30 per cent or $16,613 for a total of $71,991.

Secondly, the sponsor must show through income tax notices of assessment the required income level for the three years preceding the sponsorship application, instead of one year. Thirdly, the duration of the sponsorship undertaking is extended to 20 years, from ten years.

Finally, the maximum age of dependants is set at 18. At present, an applicant can include a dependant child over 21 who has been dependant upon the applicant before age 22 and has continued to be a student.

The government justifies the changes mostly for economic reasons. The official statement accompanying the proposed rule changes asserts that only 10 per cent of seniors over 65 years of age participate in the labour market, contributing taxes. On the other hand, a 2009 Metropolis Centre study suggests 40 per cent of parents and grandparents find work, with 30 per cent working as a child-care provider in the sponsor’s home. The government says a 2010 Immigration Department study found that three per cent of parents and grandparents receive welfare during the undertaking period, jumping to 20 per cent after the undertaking ends. As well, the official statement notes that 50 per cent of a person’s lifetime health care expenses are incurred after age 65, consuming 44 per cent of all heath care costs. As to increasing LICO levels, the government claims that compared with 1978, immigrant unemployment rates are higher, economic outcomes are worse and achieved later, and health care costs not covered by provincial health care are not adequately captured under current LICO levels.

Minister Kenney added more reasons in later statements, claiming one third of sponsored seniors end up on welfare and that he was informed more immigrant seniors were qualifying for subsidized public housing, displacing long-term residents and citizens who had contributed to the economy.

The changes will have a major effect on family sponsorship. The higher required income levels, and three-year period of assessment, will limit the number of qualified sponsors. Potential sponsors will likely have to have a longer period of settlement before making enough income to qualify. They may have to consider deferring establishing their own family in Canada until after sponsoring parents, if they want to meet the income qualifications, or wait until their own children become established on their own.

The lower age limit for dependants will likely result in many parents remaining in the home country if it means abandoning young adult children who are not self-supporting. If those children do not subsequently migrate, the parents may be less willing to join a lone child in Canada.

Sponsors may appeal refusals of permanent resident visas for parents on humanitarian grounds, when refused because the sponsor is unable to fulfil the income requirement. With fewer sponsors qualifying, the number of humanitarian appeals will increase. Those appeals are only likely to succeed if the parents have few family ties in the home country and the sponsor can show a stable income and adequate housing resources for the sponsored relatives.

Family class was established as a cornerstone of immigration policy in the 1970s under the Trudeau administration. Its critics, particularly in the past 20 years, have stressed arguments based on increased economic costs of family immigration. A 2011 Fraser Institute report co-authored by Herb Grubel, a former Reform MP, recommends abolishing all family sponsorship.

The current proposals maintain the appearance of supporting family class immigration in name only, while measuring family members against an economic balance sheet skewed by an aging Canadian population. If an immigrant can’t contribute to the economy, the government will restrict their access to it. There is no consideration of intangible social costs of allowing whole families to live together in Canada, even though it is a stated objective of the immigration law. To some, this cold-hearted approach to immigration lessens all of us.

William Macintosh is an immigration lawyer who began practising in 1984. You can reach him for advice at 778-714-8787.

Rights of arrest and detention under the Immigration law

The theme song of the U.S. reality police show COPS asks “Whatcha gonna do when they come for you?” The question became reality for eight men arrested by border officers at a construction site in Vancouver on March 13 for working illegally in Canada. While such arrests are not uncommon, the event created controversy because of the presence of a video crew for the Canadian reality show, Border Security: Canada’s Front Line. Since then the Public Safety Minister, Vic Toews, and the Canada Border Services Agency has faced criticism and questions about how they deal with privacy rights and the enforcement of illegal employment. It also brings to light the lack of public knowledge about the powers of border officers inside Canada.

Since 2012 the Border Agency has been involved in the production of Border Security. Just like an Australian show, it follows a format originated in COPS. The government and the producers of Border Security defend the program as a documentary, following border officers as they deal with people entering Canada at airports and border crossings, as well as enforcement teams inside the country. The production company website aptly describes the show as “docu-tainment,” as it markets real-life events as entertainment for profit. The government abets the company by spending so-far untold resources in reviewing all material before it is aired.

The recording of questioning and arrests for a reality show is criticized as a breach of privacy rights. The B.C. Civil Liberties Association has filed a formal complaint with the federal Privacy Commission over the incident.  The Association argues that recording activities for a television show, before obtaining anyone’s consent, breaches privacy laws as it is outside the normal scope of the Border Agency’s activities.

How can the Border Agency allow a video crew to be present in areas closed to the public to overhear encounters with other persons that are subject to privacy restrictions? While the events may not eventually be broadcast, many production members may become aware of the private information in the course of the show’s production. Who is to stop those people from gossiping about what they overhear?

Foreign workers need permission to work in Canada. Employers are prohibited from knowingly hiring unauthorized foreign workers, yet employers are rarely prosecuted, even when illegal workers are arrested at their work sites. In the past decade construction work sites have faced less oversight. Employers who knowingly hire unauthorized foreign workers may fail to collect and remit income tax, CPP, employment insurance, WCB and other levies. Are other government agencies failing to take action against those employers? Is there no coordination with immigration enforcement? The problem has probably become more common under the current federal government, as it has substantially increased the number of temporary foreign workers allowed into the country.

There is a lot of confusion about the powers of border and immigration officers inside the country. Under immigration and customs laws, officials have substantial powers of examination, and search and seizure at airports and border crossings. Persons applying to an immigration officer have duties to answer questions truthfully.

When border and immigration officers appear on the street or at homes, their powers are no different than police officers. They have no power to enter and search a home or premises unless they have a warrant, are chasing a person who has run into the home, are investigating a 911 call from the house, believe evidence of a crime is being destroyed or have arrested someone else in the home.

A person is not required to say anything, including giving a name or address, if the officers are just making conversation. If you ask if you are free to go and are told no, you have a right to know why you are being detained. You may be subject to a pat-down search for weapons, and a cursory examination of any bags. You still do not have to give your name. If arrested, you have a right to know the reason for your arrest. It is only then, after being arrested, you have a duty to give a name and address. It is only after an arrest that an officer may conduct a thorough search of your body and your possessions.

If you choose to say something you should not lie, as that could lead to criminal charges such as obstructing justice. Physical resistance to searches or arrest could also lead to other charges. Remain calm and be polite. Remember details of what was said and reasons given for your detention or arrest, including the name and badge number of the officer. A more detailed description of your rights and duties are included in the B.C. Civil Liberties Association’s Arrest Handbook, downloadable on its website.

These rights apply equally to Canadian citizens, permanent residents and foreign nationals (whether in Canada legally or not). While unlawfully obtained evidence may not be excluded from an immigration hearing, it may be excluded from criminal prosecutions and rights breaches may be subject to an award of damages at a civil trial against the government and its officers.

Enforcement of Canada’s immigration laws generates strong opinions. The government and its followers view it solely as a law and order issue, an agenda it has promoted for several decades. It is also a civil rights issue, pitting individual rights against the power of the state.  So long as Canada continues to be a nation of immigrants, this conflict will continue in public and before the courts.

Canada outlawed public hangings in 1868. The public pillory ended decades before that. Some attitudes have regressed about two centuries as the pillory appears to be resurrected in the form of government-abetted infotainment on weekly television. Even if unauthorized working is illegal, making a public spectacle of a person’s misdeeds goes against the grain of basic Canadian fairness and decency.