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.

HELPING YOU GET WHERE YOU WANT TO BE