Canada plans visa-exempt traveler screening

The federal government has published plans to create a screening program for travelers from visa-exempt countries; requiring them to obtain an electronic Travel Authorization (eTA) before coming to Canada. The plans, including proposed rule changes, were unveiled in the Canada Gazette on Saturday and are open to public comment until Aug. 2.

Under current immigration rules, temporary visitors, including study and work permit applicants, must obtain a temporary resident visa (TRV) before travelling to Canada unless they are citizens of exempted countries or other specified categories. The current country list includes the United States, United Kingdom and 43 other countries (primarily European and developed nations).

The TRV requirement compels travelers to complete application forms and submit documents, to allow decisions on their admissibility before coming to Canada. This pre-travel screening helps prevent the arrival of persons with criminal records, security and health issues, and those who there is reason to believe would stay in Canada indefinitely.

Visa-exempt travelers are not screened until they arrive in Canada, resulting in increased enforcement costs at entry points if they are found inadmissible. The government notes that in the 2012-13 fiscal year, 7,055 visa-exempt foreign nationals were found inadmissible, though it does not say how many of those were non-genuine visitors or U.S. citizens, whose removal would result in minimal added enforcement costs.

The ETA program will mirror a program already in effect in the U.S. (ESTA) (and is similar to one in Australia). Travelers could apply on-line or in writing for a $7 fee. If approved, the authorization will be valid for five years or until the applicant’s current passport expires. The eTA program will not apply to U.S. citizens and other specified applicants, including members of the Royal Family and accredited diplomats.

The government expects the program to cost $173.6-million to implement and carry out over ten years. User fee revenues are forecast at $162.3-million, with cost savings of $12.4-million in preventing inadmissible arrivals, for a net benefit of $1.1-million. It anticipates the program will not have any permanent effect on tourism to Canada.

The program is part of the North American perimeter security initiative with the United States and an example of the reaction to post-9/11 security concerns. Whether or not the added scrutiny provides further security against terrorism is debatable. What is certain is that the program adds to the cost of international travel and continues to play on fears, whether real or imagined.

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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GOVERNMENT QUIETLY SETS AUG. 1 TO RESTRICT CHILD IMMIGRATION

Starting Aug. 1, 2014, parents may only sponsor children to Canada who are under 19 years of age. This also applies to any applicant for permanent residence, who wants to include their children in their application. Children over 18 years of age may only be sponsored or included in an application if they are dependent on the parent and unable to support themselves due to a physical or mental condition. The rule changes were published without any news release in the Canada Gazette on Wednesday.

The government had initially proposed these changes in May, 2013, to be effective Jan. 1, 2014. As I previously wrote, in late last December the Immigration Minister said the government had postponed a decision on the changes after many public groups had expressed opposition to the changes. Despite the opposition, the government has moved ahead with the changes. Like other changes to the rules, the government justifies it on economic grounds. It says that older children are less able to adjust to moving to Canada and do not have Canadian work experience  and education that is better recognized by Canadian taxpayers.

Applications to sponsor dependent children include sponsorship forms completed by a parent or parents, and the applicants complete application forms. Under the current rules, children under age 22 can be sponsored or included in an application. It also includes children over age 21 who are dependent and continuously enrolled in and attending a post-secondary institution approved by a government, and are actively pursuing a course of academic, professional or vocational training on a full-time basis.

Applications properly filed before Aug. 1, 2014, will be considered under the current rules. The applications have to be complete and in order. If anyone has concerns about the application process, they might consider retaining the services of an experience immigration lawyer or qualified immigration consultant.

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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Komagata Maru – reflections on immigration policy (Part 3)

The Komagata Maru incident highlights one of the most discriminatory laws in Canadian history. Yet, society has changed in the past century since the ship came to Vancouver. Immigration today is diverse, with immigrants coming from around the world. In the past three decades, immigration has shifted from a Eurocentric to a pan-Asian focus. This is a reflection of changes in the world economy and the structures of government. Aging populations in the so-called developed world, with extensive social support for their residents, no longer seek migration as much as a means to improve their quality of life.

While Canada has changed in the past century, immigration policy has not changed in many ways. Part of the underlying conflict that gave rise to the continuous journey rule was labour competition. Employers sought cheaper labour for various industries, which was filled with immigrants from China, Japan and India. Local unions complained about the loss of work for existing workers. The same conflict has been playing out in the past eight years with the increasing use of the temporary foreign worker program, to allow employers to hire foreign workers. Labour groups complain about wage stagnation, as employers can maintain lower wages due to an accessible pool of workers willing to work at lower rates.

A century ago immigrants coming to Canada faced a relatively quick and cursory examination at a port of entry for admission to permanently live here. There was no prescreening by way of obtaining a permanent resident visa before travelling to Canada. Immigrants did not provide criminal record checks nor were checked for security reasons. There were no forms to fill out. A quick medical examination at the port of entry determined if persons were “mentally defective,” diseased or “physically defective;” making the persons prohibited from entering Canada.

Under other powers, rules were passed to require immigrants to possess certain amounts of money and to restrict immigrants of specified classes, occupations or character.  The government set a higher amount of money required for Asian immigrants. When the Komagata Maru landed, an additional rule has been passed to prohibit the landing of skilled or unskilled labourers through British Columbia ports.

Similar rules continue to exist under current immigration law. Selection rules are inherently discriminatory. Since 1966, in one form or another, selection criteria has included occupational and educational factors. The list of qualified occupations has changed numerous times since then, depending on current economic needs. The foreign skilled worker program is limited to applicants in 24 specific occupations, or those with approved arranged employed or Canadian PhD graduates.

Modern selection rules have generally required an applicant to have the ability to communicate in English or French. The rule is relatively more discriminatory against nationals from non-English and French-speaking countries. These requirements are fundamentally no different than the attempts by the BC government to pass immigration rules in 1908 that imposed an educational test, which was used to prevent the immigration of some Indian immigrants arriving on the SS Monteagle.

Financial requiremens are still imposed on some classes of immigrants. Federal skilled worker applicants must have in their possession unencumbered funds amounting to half the minimum income needed for the applicant and their family members. For a single applicant that amounts to about $12,000, about 60 times the amount required by an Asian immigrant in 1914. This inherently discriminates against a larger percentage of the populations in certain countries whose average family incomes are lower. Similar requirements are imposed under some BC provincial nominees.

The continuous journey rule was inherently discriminatory as it was used specifically to prevent migration from India. It could have been used to prevent migration from many other countries that did not have direct transportation connections with Canada.. Since 1966, Canada has created immigration policy tied to the economic interests of the country. Selection criteria has adapted to changing economic needs, to attract immigrants who are able to become economically established. The current government has tightened rules to further limit migration of family members and other classes, who are not specifically judged on their ability to become economically established.

Overt discrimination expressly based on race, nationality, ethnicity or religion no longer exists under the immigration laws. However, selection rules still create inherent discrimination against certain nationalities, whose citizens do not generally meet the selection criteria. That discrimination is tolerated, as educational, occupation and linguistic abilities are not an extrinsic part of one’s race or ethnicity. Most persons have the potential to improve their education, or gain an occupation or language skill. I expect Canada will continue to apply immigration selection criteria achieve its economic goals; to attract immigrants who will contribute to the economy and help maintain the social support structure that has developed in the past 70 years.

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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Komagata Maru – reflections on immigration policy (Part 2)

There was no attempt for several years to challenge the continuous journey rule put into effect after the success of the SS Monteagle case. Shipping companies like the CPR eliminated direct passages and through ticketing from India, though a handful of lucky migrants were able to obtain through ticketing. When a new Immigration Act was passed by Parliament in 1910, the government reenacted the same continuous journey restriction and the $200 cash requirement for Asiatic migrants.

During that time the west coast of North America became a gathering place for various Indian nationalists, whose goal was Indian independence from British colonial rule. Their presence raised concern in Delhi. It also attracted a former Anglo-Indian police officer from Kolkata, William Hopkinson, who came toVancouver in 1908. He would become a central player in the events of 1914 involving the Komagata Maru. In early 1909 he became an immigration officer. He also became a Dominion Police officer and he send regular intelligence reports to London and Delhi on the activities of Indian nationalists.

Mr. Hopkinson created a network of informants in Canada and the United States to keep tabs on the political activists. Efforts were made to discourage their activities. In early 1910 a Gujrati cotton merchant, Husain Rahim, came to Vancouver. When told of the continuous journey rule, he convinced the immigration officials to let him enter as a tourist. He stayed on. When he made himself known to officials later that year, he was ordered deported. He also attracted Mr. Hopkinson’s attention, when he was found in possession of a list of activists.

Mr. Rahim twice challenged the deportation order. In early 1911 the BC Supreme Court found that the government had no authority to order his deportation because he had changed his mind to stay in Canada. A second deportation order in late 1911 was also defeated. The court held that new rules to remove tourists who remained in Canada under the 1910 Immigration Act did not apply to Rahim as he entered prior to their coming into effect. The court also suggested that the continuous journey  and $200 requirement rules were invalid. The latter comments received no public notice. It was two years before the court’s comments were given life.

In October, 1913, the SS Panama Maru docked in Victoria. Among the passengers were 56 Indian nationals, the largest number of Indian nationals attempting to enter Canada since 1908. Some were allowed to reenter as returning residents. The rest were ordered deported under the continuous journey regulation. The group challenged the orders. On Nov. 24, 2013, Justice Hunter ruled the restrictive orders invalid on the ground that they were not written according to the terms used in the Immigration Act, as decided in the Rahim case.

Following the victory, residents wrote to family and friends to come to Canada while the door was open. The Borden government quickly shut the door, passing new rules in early January, 1914, that complied with the court’s judgment.

However, a wealthy Sikh contractor from Malaya, Gurdit Singh Sirhali, took up the challenge of testing the restrctive rules. During spring 1914 he chartered a Japanese-owned ship, the Komagata Maru, to carry several hundred Indian passengers to Canada. The ship set sail from Hong Kong in early April, travelling to China and Japan, collecting more passengers, before making its way across the Pacific to arrive in Vancouver on May 23.

The ship remained anchored in Burrrard Inlet for almost two months; its passengers kept as virtual prisoners on the ship. Of the 375 passengers on board, about 20 were allowed off as returning residents. The rest were denied entry under the continuous journey rule, the $200 requirement rule and under a new rule passed on March 31, that prohibited the landing of skilled or unskilled labourers.

After debate and negotiation, it was agreed to have the deportation order of one passenger, Munshi Singh Gulpur, put forward as a test case. A habeas corpus application was summarily rejected in order to allow for an appeal to the BC Court of Appeal. The appeal was heard in Victoria in late June. The court rendered its judgement on July 6, upholding the deportation. The court found the 1914 rules validly enacted under the Immigration Act. It upheld Parliament’s power to enact immigration rules that could prohibit British subjects, including those born in the United Kingdom, and to discriminate between different classes of subjects.

Subsequent events quickly overshadowed the Komagata Maru. Within a month Canada was at war. The continuous journey rule continued to remain in effect for more than 30 years. Limited migration from South Asia was allowed in the early 1950s. Restrictions based on nationality were eliminated in 1962. Immigration law is inherently discriminatory as it sets rules for the selection of immigrants and workers. In the next part, I will look at the events of a century ago and show what has changed and what policies have not changed.

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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Komagata Maru – reflections on immigration policy

May 23 will be the 100th anniversary of the arrival of the  Komagata Maru in Vancouver. Its arrival and the efforts of its passengers to remain in Canada were one of the most emotional events in Canadian immigration history. In the next few weeks leading up to  the anniversary, I will write about the incident and consider what changes have been made to Canadian immigration policy since then.

Humanity has been migrating through the ages. As populations levels increase, with more competition for limited resources,. people have moved to seek better opportunities. The same pressures motivate migration today. A global industrial economy creates demand for workers. Capitalism results in a desire by business to decrease labour costs. Governments attempt to balance competing interests.

Other human factors give rise to migration, such as religion, race and ethnicity, resulting in wars and other conflicts. There are many examples in recent centuries. To name only a few, land clearances in Scotland following a political uprising in the mid-18th century displaced tens of thousands of Scots. A million Irish migrated as a result of the famine of the 1840s. Partition of India in 1947 displaced about 14 million people.

In the past year complaints by unions and other workers about displacement by temporary foreign workers have filled the news. The government is creating an Express Entry program to assist business in quickly finding qualified permanent workers. All of this is playing out in a global economy hit by a recession since 2008, with fears that a slowdown in the Chinese economy will exaggerate the problems.

Similar headlines were written over a century ago. A global depression in 1907 created conflict in British Columbia, with unions demanding a prohibition against cheaper imported labour by businesses. Racial tension and prejudice arose as most of the imported labour was coming from China, Japan and India.

The B.C. legislature passed laws to restrict Asian immigration. Most of those laws were disallowed by the federal government, under a constitutional provision that still exists. Previously, B.C.'s Lieutenant Governor, James Dunsmuir, refused to give royal assent to one Act, after which he, as owner of major mining interests in B.C., signed a contract to import foreign miners. The federal government had started restricting Chinese immigration in 1885 by imposing a head tax on Chinese migrants. Despite increasing the fee twice by 1903, migration continued.

Businesses argued against restrictions. The Canadian Pacific Railway, which ran a Pacific steamship service, relied upon migration for that service. It had been promoting migration from India. Following race riots in Vancouver in September, 1907, the federal government reached an agreement with Japan to limit emigration to Canada. The government sought a way to limit Indian migration without overtly offending British Indian interests in controlling Indian nationalism.

A new Immigration Act was passed in 1906. The 1906 Act allowed the government more flexibility in controlling migration. In January, 1908, the government enacted a regulation that, where in the opinion of the Interior Minister the condition of the labour market made it desirable, immigrants would be prohibited from landing or coming into Canada unless they came from the country of their birth, or citizenship, by a continuous journey and on through tickets purchased before leaving the country of their birth, or citizenship. It also passed a rule to prevent migration of unemployed poor from Britain.

The CPR challenged the regulation as it effectively eliminated migration from India. One of its ships, the SS Monteagle, arrived in Victoria in March, 1908, with 183 Indian immigrants. The migrants were first subject to an education test under a B.C. Immigration Act. About 31 failed the test, resulting in an order for their imprisonment. On March 13 B.C. Supreme Court Justice Morrison set aside the convictions, by finding the B.C. law unlawful, as it was contrary to the paramount federal Immigration Act.

Under the federal Immigration Act, twenty five were excluded on medical grounds, the rest under the continuous journey order. The CPR contested the exclusions, with the lead applicant named Behari Lal. On March 24, Justice Clement ruled the order invalid, as the Immigration Act did not give power to the government to delegate authority to the Interior Minister to determine prohibited classes.

Within three days the government passed a new continuous journey order, without reference to the Interior Minister. It also introduced an amendment to the Immigration Act to expressly authorize a continuous journey regulation, that was assented into law on April 10. It rewrote the continuous journey order again in May. In June the government passed another rule requiring “Asiatic immigrants” to possess $200, creating a further barrier against Indian migration.

The CPR made no further attempt to challenge the exclusionary rules. It succumbed to pressure and eliminated any direct passage or through ticketing from India. The government set up entry points along the U.S. border in 1908 to control inland movement. Increasing migration prompted the government to introduce a new Immigration Act that was approved by Parliament in May, 1910. The 1910 Act would remain in effect until 1953. Within a week, cabinet reenacted the continuous journey and $200 fee requirement rules under the new Act.

The stage was set for further challenges to the law. Those would come from an Indian political activist in 1911, the arrival of another ship with Indian migrants at Victoria in October, 1913, and with the Komagata Maru's arrival. They will be dealt with in next weeks installment.

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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Government continues juggling with temporary workers

The political conflict over the temporary foreign worker program came to a head this past week with the announcement by Employment Minister Jason Kenney last Thursday that the government was suspending the issuance of labour market opinions related to the food services sector. Under the moratorium Employment and Social Development Canada (ESDC) will not process any new or pending labour market opinion applications for that sector. Labour market opinions, known as LMOs, are decisions by ESDC that an employer has given a genuine job offer and that hiring a foreign worker would have a neutral or positive effect on the labour market opinion in Canada.

Critics have complained about the temporary foreign worker program for years. The program is purportedly intended as a last resort for employers to find workers when they have been unable to find qualified workers in Canada. In the past decade, and particularly under the present government, the foreign worker program has greatly expanded. There are currently about 338,000 temporary foreign workers in Canada, compared with about 110,000 ten years ago.

In justifying the moratorium, Minister Kenny said it was made in response to serious allegations of abuse by employers that ESDC had been made aware of recently. It also followed the release of a report by the C.D. Howe Institute that the increase in temporary foreign workers had led to higher joblessness in B.C. and Alberta, particularly among young workers. The Minister’s response reminds me of the character Captain Renault in the movie classic, Casablanca. When asked why he was shutting down Rick’s cafe, he disingenuously exclaimed, “I'm shocked, shocked to find that gambling is going on in here!,” as a worker from the cafe’s casino hands him money.

For years Minister Kenny has been leading the efforts of the government in cultivating its name among various community groups. The temporary foreign worker program has had a significant impact on both the Filipino and South Asian communities, as they are the major source countries for temporary foreign workers. The program has been a boon for many small business owners, as well as large corporations. The critics have warned of abuses with the program for several years.

Instead of increasing wages to attract local workers for lower skilled jobs, businesses have been able to hire foreign workers, keeping wage rates lower.  In the case of higher-skilled jobs, easier access to foreign workers has taken the incentive away from retraining Canadian workers to fill job positions; even though part of the LMO process involves an assessment of whether the employer has made or will make reasonable efforts to hire or train Canadians and permanent residents.

Over a year ago two local unions challenged a decision to grant LMOs to HD Mining to hire several hundred foreign miners to work at its northeast BC coal mine. The company won the case. Part of its proposal was that it would eventually train Canadian miners to do long-wall mining, a technique used only in a few mines in Canada. A year has passed and it is reported that the company has yet to start training the different technique to Canadian miners.

There are many political issues at play with the temporary foreign worker program. How much money should the government spend on retraining Canadians and permanent residents? How much should businesses be responsible for retraining and reeducation? Will Canada lose an economic competitive edge with other countries that use temporary workers? Do benefits such as employment insurance and social assistance create a disincentive for Canadians to relocate to find work? How much should the government spend to police the program, to curtail abuses? Will recent restrictions on parental sponsorship reduce the pool of potential workers for lower-skilled jobs, such as food services?

The program effects the workers coming to Canada. Should they receive a right to acquire permanent residence regardless of the skills they provide to Canada? Some economic libertarians and social activists suggest an “open border” policy, allowing the marketplace to determine who gets to stay in Canada. Would that mean no restrictions on access to social benefits?

Despite the moratorium, the temporary foreign worker program is still open to employers in other work sectors. The government is toughening enforcement, as with most other areas of immigration and citizenship. Employers will continue to seek foreign workers as long as the wage savings outweigh the added administrative costs of hiring those workers. The proposed Express Entry program starting in 2015 will make it easier for employers to acquire higher-skilled workers, but won’t help with the lower-skilled worker market. Politicians will continue to change the program, hoping to bolster their standing amongst potential voters in various communities for the next election in 2015, making it harder for some businesses to plan.

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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Floated policy highlights spousal sponsorship challenges

The current government has implemented changes to immigration rules for several years, in all categories of immigration, to address several of its concerns. The first concerns the ability of immigrants to adapt to the economy and their ability to contribute to society. The second is to crack down on fraud in obtaining permanent immigrant status and ultimately citizenship.

For the most part, the changes related to adaptability have focused on economic immigrants, but has included changes to sponsoring parents and grandparents. However, several weeks ago the Toronto Star reported the immigration department was thinking of requiring sponsored spouses to meet language and other requirements. If carried out, this would be the most dramatic change to spousal sponsorship since the category was formally started in 1962. Earlier rules had expressly exempted spouses from literacy tests.

This alarmed a number of groups and arose after the Immigration Minister, Chris Alexander, reportedly raised the issues at public meetings earlier this year. Critics suggested the idea would prevent many spouses, particularly from non-English and non-French-speaking countries, from qualifying under family sponsorship. They also suggested the government was thinking about requiring sponsors to meet minimum income requirements to sponsor their spouses. The government was quick to respond to the criticism. The Minister’s spokesperson, Alexis Pavlich, deflected the issue by saying the issues were raised by stakeholders as meetings and did not mean that it would become government policy.

Since 1962 citizens and permanent residents have had a right to sponsor their spouses to the country. Following a court ruling the rules were amended in early 1984 to prevent “immigration marriages” by excluding spouses who did not intend on living permanently with their sponsor. The current rule requires spouses, common-law partners and conjugal partners to prove their relationship is genuine and was not entered into primarily for the purpose of acquiring any immigration status.

While immigration officers are trained to spot fraudulent marriages, the decision-making process can appear subjective. It is difficult to determine what a person is thinking by objectively viewing their actions and statements. As a further deterrence, when the current Act was started in 2002, a rule was added (Regulation 117(9)(b)) to prevent a sponsor from sponsoring a new spouse while they still were responsible (currently for three years) for a previous one. Some persons had abused the system by sponsoring a spouse, obtaining a divorce within a few years and remarrying another person to sponsor. A few cases involved serial sponsors, involving more than two immigration marriages in a row.

To deter immigrants who deceive their sponsor and terminate the relationship soon after coming to Canada, the rules were changed in 2012 (Regulation 130(3)) to bar a recent immigrant from sponsoring a new spouse, common-law partner or conjugal partner for five years after getting their permanent status. The consequences can be harsh for a person whose previous relationship breaks down for legitimate reasons and wants to start a new relationship with another immigrant.

There is nothing guaranteed about sponsoring a spouse or other partners. Red flags are raised when the parties to a relationship appear incompatible due to age, education, race or religion. Arranged marriages are looked at to see if they fit within customary norms. The sponsorship process requires the immigrant applicant to complete a questionnaire about their relationship. If the written application doesn’t address potential concerns the applicant will be called to an interview, where their answers will be compared with the written application.

If refused, the sponsor may appeal the decision to the Immigration and Refugee Board. This does not apply to refusals of applications made within Canada. New evidence can be submitted to the board. Other witnesses to the relationship may testify. The Border Agency may investigate by visiting the sponsor’s home. Credibility is a primary issue. False statements, whether regarding employment, education, family relationships or other matters, may affect a decision. They might also lead to criminal charges for sponsors. The Border Agency is also seeking removal orders against permanent residents under the current law for making misrepresentations in subsequent sponsorships.

De Cervantes, the Spanish author of Don Quixote, is quoted as saying “Forewarned, forearmed; to be prepared is half the victory.” Anyone contemplating a relationship with a potential immigrant should be aware of the responsibilities and obligations of sponsoring that person. In order to avoid a delayed application or having to appeal a refusal, they should arm themselves with knowledge of how to prove it is a genuine relationship and to deal with any potential matter an immigration officer may be concerned about. Inadequate information can result in an uninformed response. Since the onus is always on the applicant to prove they qualify for immigration, an officer will not be faulted if the information is not provided.

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.

Visiting Canada – dealing with the challenges in coming

In recent years millions of persons come to visit Canada. According to estimates of the Canadian Tourism Commission, in 2012 there were over 16 million overnight arrivals to Canada, of which nearly 12 million were from the United States. The second largest source of overnight arrivals was the United Kingdom, with 600,000 arrivals. Next was France with about 421,000. India was listed seventh, with 171,000 overnight arrivals. Included in the mixture are temporary residents who stay to work or attend school. While many are allowed into Canada, some are refused entry when they arrive, while many others are refused temporary resident visas they are required to have before they arrive here.

The immigration regulations set out rules on how people may apply to come to Canada, depending on what their intention is. The first distinction is a list of visa-exempt countries, whose citizens do not have to apply for a temporary resident visa before coming to Canada. The list of visa-exempt countries changes from time to time, depending upon a variety of factors, including whether or not certain foreign nationals are abusing the privilege of entering Canada by overstaying their visits. At present the visa-exempt list includes about 45 countries, primarily in Europe and including the United States, Australia and New Zealand. India was on the list until it was dropped in October, 1981, where it has remained ever since.

The temporary resident visa requirement creates an additional burden for potential visitors. Time and money has to be spent to complete application forms, gather supporting documents and to file the application. Depending on where the person applies, the process can be done within a week or can take several weeks.

Once an applicant has gathered information, completed the necessary forms and submitted them with the required processing fee, the application is reviewed by an officer who decides the application. Depending where a person applies, the process may require a personal interview. In the past decade, as government has worked to reduce its costs, more applications are decided without an interview. That means an applicant has to present all the best possible evidence to support their application in writing.

When deciding an application, a visa officer considers whether or not the applicant meets the requirements to apply and is not inadmissible. Persons may be inadmissible for a variety of reasons, including having a criminal record or serious health issues. The principle test applied to all applicants for a temporary visa is whether or not the applicant intends to remain in Canada temporarily (Immigration and Refugee Protection Act, para.20(1)(b)). If an officer believes a person may want to remain in Canada indefinitely, the application will be refused.

There are a variety of factors an officer may look at. None of the factors are set out in the rules, nor will you find them in any instruction manual for officers or in the guidebooks the provided on the immigration website. Typically, an officer is concerned with any evidence that would show the applicant will return to their home country, rather than stay in Canada. Does the person have a job? What assets, including real property do they have in the home country? Do they have immediately family members in the home country? What family members do they have in Canada? What is the reason for their visit? Do they have the means to support themselves for their expected stay?

If refused, it is usually done with a short cursory letter, with little explanation on it. Many failed applicants complain about not knowing why they were refused. The only way to get a detailed response is to apply to obtain a copy of the visa officer’s file.

Remedies against refused applications are limited. There is no formal right to have the decision reconsidered, though that may occur. The only legal remedy is to apply for judicial review in Federal Court in Canada. That means hiring a lawyer in Canada, a costly or impractical matter for most applicants. The Federal Court’s powers of review are limited, as a judge looking at the case decides only if the decision was unreasonable based on the information provided by the applicant. If the applicant failed to provide sufficient information, an officer may not be faulted on their conclusion.

An applicant can always reapply, with more information to address the issues that concerned the visa officer. The best remedy to be prepared to deal with the matter at the start by becoming informed about what is needed. That may involve seeking professional help with counsel experienced in these issues.

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.

Crackdown on immigration fraud tied to health care benefits

Recent proposed changes to the Citizenship Act have highlighted concerns raised by some critics of the purported abuse of the medical health care system in Canada by various persons. It is suggested that so-called citizens of convenience come to Canada only to take advantage of the social and health care benefits, without contributing to their cost. The potential abuse of the health care system is not limited to immigrants or naturalized citizens, but also applies to natural-born citizens. As the population ages and the need for health care increases, the government faces more pressure to control costs. One way to control costs is to spend more on enforcing the rules on coverage eligibility, something Sayed Geissah and Souad Khalaf found out about recently.

A government-funded health care system has been a part of social policy in Canada since the 1960s. Each province is responsible for the delivery of health care under the constitution. Each province has its own laws governing how health care is delivered and paid for, and who is eligible to claim its benefits. The principal law governing health care in British Columbia is the Medicare Protection Act.

Under that law residents are entitled to medicare coverage. The law defines a resident as a citizen or permanent resident who makes his or home in British Columbia, and who is physically present in the province for at least six months in a calendar year or a shorter period set under regulations. It also includes a person deemed by regulations to be a resident, but does not include a tourist or visitor.

Detailed rules concerning deemed residency, absences for vacation or work, and extension of absences are set out in the Medical and Health Care Services Regulation. The rules are extensive. Deemed residency extends to various foreign nationals in British Columbia, including those here under study and work permits.

The Medical Services Commission is responsible for enforcement of the Medicare Protection Act. It will investigate cases where questions are raised about a person’s residence and their continuing eligibility for coverage. Such an investigation arose in 2009 for Mr. Geissah and Ms. Khalaf. They immigrated to Canada in 1994 with their three sons. By 2002 their sons had moved. They now live throughout the Middle East. Since 2002, the couple claimed to visit their sons and grandchildren for up to six months each year, before returning to live in British Columbia.

The couple was asked to provide evidence of their travels between 2002 and 2010, which they refused to provide. Based on the evidence available, including that the couple had made no health care claims during two years and infrequently in all other years, the Commission decided the couple had not met the residency requirement during those years and retroactively cancelled their coverage from 2002 up to June, 2010. A review by a delegate upheld the decision. A subsequent application for judicial review by the Supreme Court of BC was dismissed. In January, 2014, the BC Court of Appeal upheld that decision.

The appeal court dismissed all of Mr. Geissah and Ms. Khalaf’s arguments, upholding the finding that the Commission’s delegate could reasonably come to the conclusion, based on the evidence before him, that it was more likely than not that the couple did not meet the residency requirement. The court noted that the finding was limited to MSP coverage and was not a determination of eligibility for entitlement to benefits under federal programs such as Old Age Security. Fortunately for the couple, the province did not seek repayment of the costs of the medical services it paid for during the ineligibility period

In 2011 14 per cent of Canada’s population was 65 years of age and older. That is expected to rise to about 23 per cent by 20131 and will remain at about a quarter of the population for the following 30 years. An aging population poses more demand on health care. Either the government finds ways to decrease costs, or increases taxation to pay for the increased costs. Efforts are being made to improve health through alternative and preventative medical treatment.

I expect there will be continued political pressure on government to crack down on abuse of the medicare system. For the past 15 years provinces have been diligently enforcing sponsorship undertakings to recover welfare payments. With tighter tax dollars available, there will be greater enforcement of medicare eligibility requirements. The federal government’s changes to the Citizenship Act and its emphasis on investigating immigration fraud, is part of the larger concern about funding social benefits in Canada.

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.

Cancellation of investor program raises many questions

There are currently dozens of different categories for potential immigrants to apply under, whether through federal or provincial nominee programs. Categories change as governments adjust policies to respond to changing economic and social circumstances. When the federal budget was unveiled last month, the government announced it was canceling the federal immigration investor program. The program had been in existence for nearly 30 years. The program was modified several times. In its final incarnation, the program offered permanent residence to potential immigrants having a net worth of $1.6-million, who invested $800,000 in a government fund for five years.

Earlier versions of the program allowed potential immigrants to invest in private businesses and funds. That proved open to abuse, with some businesses failing to carry out their intended investments and some investors losing their funds. The administrative cost of regulating such schemes, effectively requiring the immigration department to become a securities regulator, resulted in the adoption of the government fund model.

The government claimed, in canceling the program, that most immigrant investors are not making a long-term positive economic contribution to the country. It said employment and investment income is below Canadian averages and those of most other economic immigrants. Investors pay less in taxes over a 20-year career. They have the lowest official language ability of any immigrant category and are less likely than other immigrants to stay in the country over the medium to long term. Finally, very little “new” money came into the country, with almost all initial investments made through the program coming from Canadian bank loans.

On the other hand, other reports indicate that in settling in the country, investors added capital through the purchase of residences and transfer of personal property, as well as contributing through the purchase of goods and services. For several decades debate over immigration and investors has focused on its purported effect on real estate prices. Critics claim that housing prices in Vancouver, one of the more expensive places to live in the world, is the result of a large influx of investor immigrants buying up property to live in or for investment. Others suggest there is no direct correlation and the total number of sales does not reflect the number of immigrants coming as investors.

Much of the debate is premised on anecdotal evidence, as property sales do not track the origin of purchasers, or their immigration status. In 2012, the former governor of the Bank of Canada, Mark Carney, warned of the risk of foreign capital inflating the housing market. The 2011 census shows a shift in demographics in Metro Vancouver, with an increase of the immigrant population from 30 per cent in 1991 to 40 per cent in 2011, with 61 per cent of the immigrant population arriving since 1991. About 50 per cent of the immigrants coming in the past 10 years chose to settle in Vancouver and Surrey.

The effect of immigration on housing prices is not limited to Canada. The Sydney Morning Herald in Australia noted a few weeks ago, after the immigrant investor program was cancelled, that one major property developer reported that offshore investment in residential properties had doubled in 2013. The article speculated that Canada’s decision to limit investment immigration could only boost interest in Australia’s market.

The decision to cancel the program has prompted a reaction from some of the would-be immigrants who applied under the program. Earlier this week a group held a news conference in Beijing, asking that the government to process the 65,000 outstanding applications. They are also contemplating legal action against the decision.

That action will likely have an uphill battle to succeed. When the government introduces budget legislation to give effect to the cancellation, I expect it will include express terms to retroactively cancel the program and outstanding applications, as it did recently with another program for skilled workers. While the decision may be unfair and cast doubt on the government’s trustworthiness, it would be within Parliament’s power to enact such legislation.

The government’s decision raises fundamental questions about immigration law and policy, just as does the recently proposed changes to the citizenship law. How should would-be immigrants be chosen? What are the criteria in measuring an immigrant’s contribution to the country? To what degree should an immigrant be contributing economically to society, if they are to receive the social, health and economic benefits from the state?

The government says it will create a new immigrant investment program. It will be interesting to see what criteria it uses to select immigrants under the new program, and what economic and social benefits the new program will create for the country.

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.

Navigating the labyrinth of immigration channels

Making an immigration application involves a complex process; from choosing the category to apply under, to completing immigration forms and then dealing with the government officials making the decision on an application. In the past several decades the government has attempted to make the process more transparent and understandable, as the government has shifted the burden of completing applications onto applicants. The government’s attempts at making the process easy to understand haven’t always succeeded. Sometimes decisions are made that are difficult to understand or appear to have been made arbitrarily.

Ralph Watzke, a Canadian citizen, found himself in such a situation when he applied for a certificate of citizenship for his son Jeffrey. Jeffrey was born in the Philippines in about late 2005. What you would think would be a straightforward process turned into a seven-year struggle to have his son come to Canada. Mr. Watzke, acting on his own, initially applied to sponsor his wife (Jeffrey’s mother) and son as immigrants. He was told that since his son would be a citizen (as his father was Canadian at the time of the birth), he did not have to be sponsored as an immigrant, but dealt with as a citizen.

His wife’s application was processed and she came to Canada. Mr. Watzke had been told by the Canadian Embassy in Manila that he would have to undertake a DNA test for his son to prove that he was in fact his son. Mr. Watzke then applied in Canada for a certificate of citizenship for his son, hoping the decision would be made sooner than if done through the embassy in Manila. The office in Canada contacted the embassy in any case, and advised Mr. Watzke in 2009 that he would still have to obtain a DNA test for his son. Mr. Watzke felt the decision was discriminatory and wrote back to complain about it. Correspondence was exchanged over several years. In 2011 the office formally refused the certificate of citizenship for the son. Mr. Watzke applied to Federal Court to review the decision.

In January, 2014, Justice Russell concluded that the decision to refuse the certificate was unreasonable. The government had requested the DNA test because Jeffrey was born at home, not in a hospital. It did not accept formal government birth documents filed in the Philippines as proof that Mr. Watzke was the father. The government gave no rationale why a home birth would have resulted in the requirement for a DNA test. In deciding the decision was unreasonable, Justice Russell noted “There is no evidence that the reason for this requirement was ever explained to the Applicants or that it was publicly available in the policy manual or elsewhere.” The court ordered that the decision be reconsidered and suggested that the government deal with it in a timely way.

Not all applicants are as successful or as determined as Mr. Watzke in pursuing issues. The case points out the complexity of applying for immigration and citizenship status, especially in the past two decades as immigration rules have become more complex and the number of ways to apply has increased to the dozens.

The immigration law recognizes three categories of immigrants – involving families, economic immigrants and humanitarian immigrants. Finding which category to apply under is the first step in the process of moving to Canada. The second step, which can be as difficult or more so to navigate, is understanding the labyrinth of procedures and forms necessary to make an application. Some categories require up to a dozen forms to complete.

The Immigration Department has 10 different manuals, some of which have more than two dozen chapters, to guide the government officials administering each category. This does not include dozens of operation bulletins issued yearly, or the manuals and guidelines used by provincial immigration officials. While the Department publishes guidebooks, they do not easily describe the process or address all the issues that may arise in an application.

For many applications, the final decision is made at a Canadian Embassy overseas near where the potential immigrant lives. Each office has to follow the guidelines and department manuals in processing the application. However, there may be many variations in dealing with an application, depending on the country where the application is made. These issues are not dealt with in any specific immigration manual and no public guidance is published on how an individual office may deal with issues specific to the applicant’s country of origin.

In Mr. Watzke’s case, he found out that Manila has issues about the reliability of government forms as proof of a child’s parentage. Fortunately for him, the Federal Court found that the visa office’s inability to explain why the documents were not reliable in his case was unreasonable. When setting out on a journey, knowing how to navigate the route is important. Sometimes you need a good pilot to help navigate difficult or unknown waters.

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.

Tougher citizenship laws miss mark on expatriate issues

Fifty years ago commercial jet transportation revolutionized the movement of people around the world. Increased passenger numbers pushed manufacturers to build larger jets, resulting in the Boeing 747 in 1970. The first purchaser of that jet predicted it would be a great weapon for peace. He probably did not envision how the global accessibility created by jumbo jets would lead to changes to immigration and citizenship laws, such as changes to the Citizenship Act announced Thursday by the government.

In the near 150 years of is existence Canada has had four acts governing naturalization and citizenship. The current Citizenship Act came into effect in 1977, just as the effects of increased global travel were starting to be felt. Since then immigration levels to Canada have increased, to a yearly average of about 235,000 for the past 20 years. The pattern of immigration has changed, from a Eurocentric majority to an Asiacentric majority. As more immigrants have come to Canada, more people have applied for citizenship.

Several million Canadians now live abroad, many newly naturalized citizens, raising questions about entitlement to citizenship and the obligations citizens owe to the country. Critics complain about “anchor babies” and “citizenship of convenience,” referring to migrants who stay in Canada only long enough to obtain citizenship and then live abroad, returning only when in danger or to take advantage of health care and other social benefits.

The government’s response is Bill C-24. The Bill makes dozens of substantive changes to the law, relating to who may claim to be Canadian, how to qualify for citizenship and how citizenship may be revoked.

Proposed changes will recognize certain persons, recently referred to as “Lost Canadians,” born before 1947 (or before April 1, 1949, in cases involving Newfoundland and Labrador), as citizens.

For immigrants seeking citizenship, residency requirements will be increased so an applicant must be physically present in Canada for four years in a six-year period and applicants must be in Canada for at least 183 days per year in four of the six years. It still falls short of the five-year requirement that was in effect before 1977.

As well, applicants must have filed income tax returns during four of the years. Time spent in Canada as a non-permanent resident during the qualifying period will no longer count. Finally, applicants must show at the time of application and up to the time they take the oath of citizenship, an intention to continue to reside in Canada.

The ages required for applicants required to show language proficiency in English and French, and pass a knowledge test, is changed from 18 to 54, to 14 to 64. The government announced it will increase the fees for citizenship applications from $100 to $300, with an additional $100 right-of-citizenship fee for successful adult applicants.

Failed applicants will no longer have a right of appeal to Federal Court. They will have a right to apply for judicial review, with leave of the Federal Court. These changes will decrease accessibility for many applicants who cannot afford help to navigate the court rules for judicial review.

Under the proposed law the citizenship minister will have the power to revoke citizenship, without an oral hearing, based on  grounds of the person obtaining their citizenship or permanent residence on grounds of fraud or misrepresentation. Cases involving security, human or international rights violations, or organized criminality will involve a Federal Court hearing. The Minister will also have the power to revoke citizenship of any dual citizen convicted of terrorism, high treason, treason, or spying offences, depending on the sentence received. Similar grounds will prohibit applicants from receiving citizenship. The changes to ministerial power will likely be subject to  Charter challenges.

Persons who represent or advise on a citizenship application or hearing for a fee will have to be a lawyer or a member of a designated regulatory body. This mirrors changes to the immigration law in 2002 that resulted in the creation of an immigration consultants regulatory body.

In a news release concerning the Bill, Citizenship and Immigration Minister, Chris Alexander, said the government is strengthening the value of Canadian citizenship, which is a pledge of mutual responsibility and a shared commitment to historical values. The government expects new processing procedures will eliminate the backlog of outstanding applications within a few years, so applicants will not have to wait the several years it now takes for applications to be completed.

As long as Canada offers health care and other social benefits, there is a legitimate political question about the tax contribution of the several million Canadians living abroad to pay for those services should they return. The government may say the proposed changes help address the problem, but the changes are window dressing. The real change would come with amendments to tax laws, which would be much harder to sell politically. 

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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Passport misuse can lead to travel restrictions

Immigration law is one aspect of the international movement of people. Each country has its own rules to decide who it will allow in to live permanently, visit, work or study. One other aspect of immigration law which does not get talked about much is the use of passports. Passports are the fundamental document which an international traveller needs to be able to move between countries. While Canadian citizens have a constitutional right under the Charter of Rights and Freedoms to enter, remain in and leave Canada, there is no absolute right to possess a passport to facilitate the right to leave and enter Canada. Jose Dias recently learned that after attempting to assist his foreign wife to come to Canada in late 2010.

Passports are government-issued documents that certify the identity and nationality of its holder. They have existed in one form or another for more than two thousand years. The first true passport is said to have originated in England during the reign of Henry V in the early 1400s. While passports were issued in various forms since then, it was not until after World War I that countries agreed to guidelines for the standard booklet form of passport that continues to exist. More formal rules for a standardized passport started in 1980, through the International Civil Aviation Organization which governs international air travel.

Each country has its own rules for issuing passports. In Canada, that rule is the Canadian Passport Order. The current Order was passed in 1981 and has been amended several times since then. The Order is a unique law. It is passed solely by authority of legal powers still remaining with the Queen, known as the royal prerogative, that are exercised by the federal cabinet. There is no Parliamentary statute governing the issuance and use of passports.

The number of people travelling between countries has increased dramatically in the past four decades through more accessible air travel. Consequently, there has been an increased use of fraudulent and altered travel documents and misuse of legimate travel documents. Countries have become more vigilent in preventing the misuse of passports, especially since the events of 2001 and the threat of international terrorism.

Passport officials began taking action against Canadian citizens in the 1990s, whose legitimate passports wound up being used by other persons attempting to enter Canada or other countries. Under the Canadian Passport Order, a passport may be refused for a number of reasons, including if an applicant is charged with an indictable offence or is charged with offences outside Canada that would be an indictable offence in Canada. Passports will not be issued to persons subject to imprisonment in Canada or who are forbidden by court orders to leave Canada.

Existing passports may be revoked for similar reasons. As well, passports may be revoked if the person  uses the passport to assist in committing an indictable offence in Canada or any offence in a foreign country or state that would constitute an indictable offence if committed in Canada, or permits another person to use the passport. The decision to refuse or revoke a passport also includes the power to impose a period of refusal of passport services.

Jose Dias had his Canadian passport revoked after travelling with his Brazilian wife to St. Maarten, where she attempted to board a plane to Canada. His wife had obtained a New Zealand passport, based on a claim to New Zealand citizenship through a grandmother. She was using a New Zealand passport when attempting to come to Canada. She was refused boarding when it was decided that the New Zealand passport was counterfeit. Mr. Dias subsequently came to Canada. After an investigation, in June, 2012, Passport Canada revoked his passport and barred Mr. Dias from obtaining a new passport for five years, except to travel on urgent, compelling and compassionate grounds.

Fortunately for Mr. Dias, he challenged the decision. Earlier this month the Federal Court overturned the decision. It found the decision wrong as the passport director failed to specify what law Mr. Dias purportedly committed in assisting his wife to obtain a New Zealand passport. Other persons have not been so fortunate. In several cases passport holders have claimed to have lost their passport while abroad. While they received an emergency passport to return to Canada, someone else subsequently used their original passport to arrive in Canada. The passports were revoked when evidence was obtained that the Canadian allowed their passport to be misused.

Along with increased enforcement against misrepresentation in immigration cases, the current government has empowered Passport Canada to investigate misuse of passports. The consequences to someone misusing their passsport can be difficult, affecting the ability to conduct business or visit family and friends abroad.

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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Who protects temporary foreign workers in Canada

Claims of abuse and exploitation of temporary foreign workers has increased in recent years as the number of such workers has risen in Canada to well over 350,000 in 2013. Workers complain that employers fail to comply with hiring contracts by requiring longer work hours and not paying agreed-upon salary, and providing working conditions that Canadian employees would reject. Many foreign workers won’t complain for fear of retribution from their employer. They cannot easily change employers once they are in Canada and if they leave Canada their chances of returning are decreased.

It is in response to this problem that the government made its recent changes to immigration rules affecting employers wanting to hire temporary foreign workers. Immigration Minister Chris Alexander sold the changes as part of the government’s commitment to protect foreign workers from the risk of abuse and exploitation. As I wrote about last week the changes give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.

Part of the other potential abuse of foreign workers comes from employers who charge workers money for giving them a job offer. The payment may involve a single fee paid up front for the job offer, or a set-off against wages once the worker begins employment. There are laws available to protect the foreign worker from such exploitation. In British Columbia, employment law is governed in part by the Employment Standards Act. Section 10 of the law prohibits any person from requesting, charging or receiving, directly or indirectly, from a person seeking employment, a payment for employing or obtaining employment for the person seeking employment, or providing information about employers seeking employees.

Workers who have paid such fees may make a complaint to the Employment Standards Branch, which, if not resolved by the worker and their employer may proceed to investigation, mediation or adjudication by the Branch. The Director of Employment Standards can issue a determination for unresolved complaints. The employer may be assessed mandatory penalties for breaking the Act and the Director has powers to collect outstanding wages and penalties. The illegal job fees are treated as unpaid wages owing to the worker.

Some workers have spoken out about the abuse and have complained to the Branch. Last month some Filipino workers at Tim Hortons’ restaurants in Fernie and Blairmore have alleged that the local owners have exploited them by forcing repayment of overtime wages. A year earlier a group of Mexican workers complained to the BC Human Rights Tribunal with allegations of discrimination and mistreatment by a Tim Hortons restaurant in Dawson Creek.

Another requirement of the Employment Standards Act is the licensing of employment agencies. That includes any person who, for a fee, recruits or offers to recruit employees for employers. There are many job recruiters offering to find work for foreign workers who may be visiting Canada or who are abroad. Not all of the job recruiters are licensed to act in British Columbia. Under the law, the employment agency can only charge the employer for finding an employee, though some recruiters exploit workers by charging them a fee.

These rules led to a complaint to the Employment Standards Branch over the practices of an immigration consultant. ICN Consulting Inc., an immigration consulting firm owned by Tatiana and Michael Gorenshtein, charged two live-in caregiver applicants fees to obtain a labour market opinion for their prospective employer and for their work permit applications. The Employment Standards Director determined that the consultant should have been licensed as an employment agency and had unlawfully charged a fee for helping the workers obtain employment.

Meanwhile, the consultant successful sued one of the workers for unpaid fees in Provincial Court, where a justice of the peace found the consultants contract was not for arranging employment but for providing immigration services. Last September the BC Supreme Court ordered that the issue of whether the consultant’s fee involved a fee for arranging employment be reconsidered by the Employment Standards Tribunal. The case is pending before the Tribunal.

Whether exploitation and abuse of foreign workers will continue to be a significant problem remains to be seen. Workers have remedies under provincial employment and human rights law against abusive employers and recruiters. Investigations under the new federal rules may still depend upon a complaint before action is taken. In either case, the end result is that the foreign worker will lose a job, with no certainty they can get another approved job offer. In those circumstances, when protection from abuse depends on the willingness of workers to make complaints, the potential for abuse still exits.  The recent rule changes do not address that problem.

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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Immigration rule changes to impact foreign worker employers

In late December Immigration Minister Chris Alexander and Employment Minister Jason Kenney announced changes to the Immigration and Refugee Protection Regulations that give government officials power to inspect Canadian workplaces without warrants and to ban employers who abuse the country’s foreign worker program.

Effective Dec. 31, the changes received formal approval from the federal cabinet on Dec. 12 following consultation with interested parties after proposed changes were announced last June. The changes are part of several reforms to the temporary foreign worker program announced after public criticism arising from several stories early last year. One news report revealed The Royal Bank had replaced dozens of Canadian workers with foreign workers, as part of a plan to outsource jobs abroad. In another story, a mining company successfully fought a court challenge by a Canadian union against a government decision allowing it to hire several hundred foreign workers for a proposed mine in British Columbia.

The new rules have received criticism and comment from various groups. Some complain about additional burdens placed on employers, while another complaint concerned the failure of the government to implement one of the proposals it floated last June.

Employers must now retain any document relating to hiring and employing a foreign worker for six years. During that period officials may enter the workplace and interview foreign workers or demand documents, without a warrant, to determine if the employer has complied with the immigration rules and the conditions set out in the labour market opinion (LMO) which gave the employer permission to hire the foreign workers. An employer must show that all information provided for the LMO is accurate and must make reasonable efforts to provide a workplace that is free of abuse.

Inspections may be carried out for six years after a foreign worker is employed. Employers who fail to comply with the rules or the LMO will get a chance to justify and correct its actions. If the employer is found in non-compliance, it will be ineligible to hire foreign workers for two years and will have its name published on a public ban list. Pending applications will receive a negative LMO and outstanding LMOs may be revoked.

The Saskatchewan Federation of Labour expressed concern about the government’s decision to drop a proposed rule that would have banned employers convicted of certain serious crimes from hiring foreign workers. Federal President Larry Hubich said, "They've given us no confidence that they're going to enforce what they have there now."

In response, the government justified the proposal as being "too rigid and cumbersome."  The proposal would have cost employers more money and there are issues about receiving timely criminal record checks. The government will rely upon the threat of compliance searches to deter employers from abusing foreign workers. Whether that is effective will depend on how much money the government commits to its compliance measures.

The new rules apply to all employers, including farms and agricultural employers, fast food outlets and restaurants, as well as to employers hiring skilled and specialized workers.

The government’s response to public criticism of the temporary foreign worker program has focused on its efforts to create jobs, economic growth and long-term prosperity. Minister Kenney, in announcing the changes, stated the government was “taking action to ensure that Canadians are always first in line for available jobs.” However, the changes the government states strengthen criteria for assessing LMO and work permit applications are minor in substance and to not appear to make it much harder for an employer to justify the need to hire a foreign worker.

As Minister Alexander stated in the announcement “One of the goals of the temporary foreign worker program is to deal with labour shortages on a temporary basis, and these reforms will help ensure that the program is used as intended.” Stories still get published about forecasts of worker shortages in Canada.

The government is proposing a new “expression of interest” system to select qualified immigrants for permanent residence to meet employer needs. That system will not be in place until 2015. Until then the government and employers will continue to rely on the temporary foreign worker program to meet immediate employment needs. Continued conflict between the federal government and provincial governments over job training funding also raises concerns about the ability to train Canadians to fill worker shortages. Unless worker shortages decrease, many employers will continue to seek approval to hire foreign workers.

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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