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.

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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.

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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.

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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.

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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.

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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.

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