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

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.

HELPING YOU GET WHERE YOU WANT TO BE

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.

HELPING YOU GET WHERE YOU WANT TO BE