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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