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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