Canada’s Temporary Foreign Worker Program: More Controversy, More Change

On April 22nd, the Federal Government barred access to the Temporary Foreign Worker Program for all food service operations. Further reforms are expected going forward, likely making the Labour Market Opinion process more restrictive and onerous across the board.

The Canadian federal government has wasted no time in responding to the controversy surrounding McDonalds’ alleged abuse of the temporary foreign worker program. A moratorium on the food services sector’s access to temporary foreign workers was swiftly imposed. Employment Minister Jason Kenney justified the sweeping move as a response to abuse of the program, and hinted that more changes would follow.

While criticism has focused on large-scale fast food operations, the moratorium applies much more broadly. All food service operations—everything from international hotel chains and top national restaurants to smaller ethnic restaurants—are now barred from hiring temporary foreign workers. The moratorium applies to lower-skilled front-line food service staff, but also to high-skilled and specialized cooks, chefs, and restaurant managers. Even occupations beyond food services, such as cleaning supervisors, sales representatives, and security guards, have now been caught by the ban.

The moratorium came into effect immediately upon its announcement on 22 April 2014.  This drastic measure follows other recent changes that have limited access to the Temporary Foreign Worker Program. At the same time, employers who maintain the right to hire temporary foreign workers face higher fees and increasingly stringent compliance measures. Advertising requirements are being applied and enforced more strictly than ever. We can expect that this vigilance will continue. Further reforms are expected in the near future, which are likely making the Labour Market Opinion process more restrictive and onerous across the board.

Predictably, the Canadian restaurant industry has criticized the changes. Restaurants Canada warned that, without access to foreign chefs, cooks and other restaurant industry workers, many smaller restaurants will be forced to close. Workers already in Canada risk being forced out.

For those affected by the moratorium, there may be alternatives. Foreign workers in Canada on existing work permits may be eligible to apply for permanent residence. With permanent residence, the need to rely on the temporary foreign worker program is eliminated altogether.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both employers and potential employees with evaluating eligibility for various immigration and temporary residence programs, preparing comprehensive application packages, addressing any potential complications, and advising on ongoing compliance requirements. Having accurate information and proper legal advice is key in this challenging environment. Please contact us to set up a consultation appointment.

– Warren L. Creates and Jacqueline J. Bonisteel

With special thanks to Rovshan Hajiyev 

Canada’s “Tour Tax” : Will New Foreign Worker Fees Cripple Music Venues?

As a result of changes to Canada’s Temporary Foreign Worker Program, certain venues will need to pay $275 for each individual foreign musician and crew member when they book musical acts from abroad. However, music venues will be exempt from paying any fees in certain situations. It is important to understand where exemptions apply and why. Where a venue is in the grey area, a strong application package can make all the difference.

Ever since the federal government announced new regulations to the Temporary Foreign Worker Program in July 2013, the impact on Canada’s live music scene has been a topic of controversy and confusion. A change.org petition denouncing the new fees payable by certain venues booking foreign talent is now approaching 150,000 signatures. Others dismiss the outcry, saying that the new fees will have no impact whatsoever, or that they are a welcome measure that will encourage more focus on homegrown artists. In this discussion, we seek to provide a balanced and informative perspective on the issue.

Who Is Required to Pay?

For venues reliant on live performances or overseas musicians considering a tour in Canada, it is important to first get the facts straight. In many cases, a foreign performing artist touring Canada will not require a work permit. In these “work permit-exempt” cases, no government fees are payable by either the musicians or the venues booking them.

Work permit exemptions exist where foreign artists are booked to perform at venues such as festival grounds, stadiums, concert halls, casinos, or theatres. In general, so long as the engagement is a short-term ‘gig’ and the venue is not primarily a “bar, restaurant or similar establishment”, no work permit is needed, and no fees are payable. However, a longer-term engagement involving regular performances at the same venue likely would not be exempt. More detail on performances in “bars, restaurants or similar establishments” is found below.

Also exempt are those participating in a Cultural Exchange Program through the American Federation of Musicians (A F of M). A F of M members who are U.S. citizens and possess proof that they are part of the program will not need a work permit to play shows in Canada, regardless of venue.

Performances in Bars, Restaurants or Similar Establishments

Pursuant to Canada’s immigration legislation, a work permit is required where an artist is entering Canada to perform at a “bar, restaurant or similar establishment”. Of course, there are many establishments in Canada that both showcase music and also operate as a bar, nightclub, restaurant or café. In these instances, is the venue considered a “bar, restaurant, or similar establishment” for immigration purposes? This is where much of the confusion lies.

To take advantage of the work permit exemption and avoid the new fees, an establishment that falls in this grey area must convince Citizenship and Immigration Canada that its primary purpose is to showcase music rather than to sell food and beverages. The government’s rationale for this distinction is that “bars, restaurants and similar establishments” bring in musicians mainly to entice their patrons to stay and purchase food and alcohol. From this light the government reasons that Canadian musicians should be available to fill this role, and that a venue should not need to hire talent from abroad in most cases.

Where there is confusion as to whether a venue qualifies, immigration officers are directed to look to the liquor license. If the venue is identified as a “concert venue” on the liquor license, the fact that it also operates as a bar or pub should not affect its exempt status.

It is also possible for a bar to act as a “concert venue” for a limited period. For instance, if a cultural association were to rent out a restaurant for a night to bring in a foreign musical act, the work permit exemption may apply. The cultural association would need to present evidence that a ticket to the concert was required for entry, and that the bar was otherwise closed to the general public on that particular night.

However, venues in the grey area still need to be cautious. Recently published guidelines for officers indicate that the government may apply stricter standards going forward when evaluating whether an establishment is primarily a music venue.  Officers are directed to treat venues whose names include words such as “bar”, “cafe” or “tavern” as non-exempt unless additional evidence indicates otherwise. Therefore, any music venue with one of these words in its name will need to carefully make its case for an exemption.

The case for an exemption is made at the time a performing artist seeks to cross the border into Canada without a work permit. The artist should come equipped with a package of information and evidence that makes the case for the exemption. Artists and venues are well-advised to seek the assistance of experienced immigration counsel in preparing such submissions.

Where a Work Permit is Required

In cases where the exemption does not apply, foreign musicians need a work permit to perform in Canada. The fee to obtain a work permit has not changed: it is $150 per person, to a maximum of $450 if a group of performers and crew all apply at the same time.

However, before a musician or group of musicians can apply for a work permit, a non-exempt venue must be approved for a Labour Market Opinion (LMO). An LMO is required for most work permits in Canada to establish that there is no Canadian available to fill a particular position. Obtaining an LMO was already an onerous process, and the new regulations introduced a fee of $275 per applicant. There is no special fee for groups: in the case of a band, the venue would need to pay $275 per person for each individual member of the band and their crew. If the application is refused, the venue will not have the fee reimbursed.

Clearly, the new fee requirement can be prohibitive, and it may well prevent smaller establishments from bringing in talent from abroad. However, many venues will continue to be eligible for the exemption. So long as they can prove that eligibility, they can continue to book foreign talent without paying the government to do so.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both venues and foreign artists with assessing work permit requirements, preparing comprehensive application packages, and addressing any potential complications.

– Warren L. Creates and Jacqueline J. Bonisteel

With special thanks to Rovshan Hajiyev and James Nicol

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Canada’s Temporary Foreign Worker Program: Controversy Instigates Rapid Reform

In April of this year, Canada’s Temporary Foreign Worker Program suddenly became a hot topic for every major media outlet in the country. Reactions to controversy surrounding the program ranged from virulent criticism to impassioned defense.

The debate eventually expanded to include questions about the economic necessity of outsourcing, the obligations of Canadian companies, and national identity in a globalized world. These are all fundamental issues reaching far beyond discussion of the merits of Canada’s Temporary Foreign Worker Program. Even a major overhaul of the program would be only the tip of a very large iceberg.

Nonetheless, such an overhaul was the simplest way for the federal government to address the criticism, so that has been the immediate result. The Temporary Foreign Worker Program was slated for change before the recent controversy erupted, but new policies and heightened enforcement measures have come down swiftly over the past few months. These recent changes are a marked departure from the previous year’s efforts to make it simpler for compliant employers to bring in temporary foreign workers.

On 29 April 2013, two major changes were implemented, effective immediately:

  • The wage flexibility that previously allowed employers to offer wages that were up to 15% lower than the prevailing Canadian wage rate was removed; and
  • the Accelerated Labour Market Opinion process was suspended. This pilot program had previously allowed certain employers of higher-skilled workers to obtain an LMO more quickly and easily.

Other changes were announced, but have yet to be implemented due to the need for parliamentary approval:

  • The Government’s authority to suspend and revoke work permits and labour market opinions (LMOs) if the program is being misused will be expanded;
  • employer fees for processing Labour Market Opinions will be introduced, and the fees for processing work permit applications will be increased; and
  • the ability to list knowledge of a language other than English or French as a job requirement will be limited.

On 8 June 2013, another set of proposed regulations was introduced, including the following:

  • The employer compliance verification period will be extended from two (2) years to a period of up to six (6) years;
  • employers offering stripping, exotic dance, escort services or erotic massages will be prohibited from participating in the program; and
  • most controversially, the proposed regulations expand the authority of federal officials to search Canadian workplaces and question employees without a warrant. Employer inspections will take place where fraud is suspected, but can also result from a random audit.

The ability to bring in temporary foreign workers to fill labour needs is vital to the success of many Canadian businesses. The government has acknowledged and encouraged this in the past, and will certainly continue to do so going forward. However, employers must be prepared for stricter monitoring and enforcement of the program. We can expect that new applications will be more closely scrutinized, and that violations of the program requirements will not go unpunished.

Preparing thorough applications and paying close attention to compliance conditions will now be more important than ever. The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both employers and potential employees with evaluating eligibility, preparing comprehensive application packages, addressing any potential complications, and advising on ongoing compliance requirements.

Warren L. Creates and Jacqueline J. Bonisteel

Start-Up Visa Seeks to Attract the Next Zuckerburg to Canada

While it is an uphill battle to lure Silicon Valley entrepreneurs away from California’s vibrant community of tech start-ups, Canada is taking on the challenge. The new Start-Up Visa program is seeking to bring to Canadian soil the minds dreaming up the next Google or Facebook. A strategically placed billboard en route to San Francisco’s technology hub calls for those in the industry struggling to land a U.S. H-1B visa to consider the Canadian alternative.

Canada’s Start-Up Visa, officially launched on April 1, 2013, is open to anyone with one year of post-secondary education, basic English or French language ability, sufficient funds to settle in Canada, and a substantial third-party investment. The investment must be in the form of a minimum $75,000 CAD from an approved Canadian angel investor, or minimum $200,000 CAD from an approved Canadian venture capitalist. The designated angel investor groups or venture capital funds are found on CIC’s website.

The program is not limited to any specific industry, but it is expected that the majority of beneficiaries will work in technology. Similar programs introduced in the UK, Australia and Chile have also focused on tech start-ups.

Canada is hoping that entrepreneurs will be enticed by the World Bank’s recent finding that Canada is the best place in the G7 to start a business due to a strong banking system, growing job market, low taxes, and high standard of living. Also, a key selling point of the Canadian program is the fact that those accepted will be granted permanent residence in Canada—regardless of whether the business succeeds. This sets it apart from the programs of other countries.

Canada’s program contrasts with the U.S. H1-B visa, which has been criticized for its slow processing times and extremely limited quotas. The Canadian program will allow up to 2,750 applications per year—though Citizenship and Immigration Minister Jason Kenney has stated that he does not anticipate that quota to be met in the first year. Processing times are expected to be six months or less.

Critics of Canada’s Start-Up Visa state that it is too limited and too risky. Venture capitalists in Canada are reputed to be risk-averse, so potential applicants may struggle to secure the requisite funding. Also, given the difficulty of predicting which start-up idea will thrive, Canada is taking a gamble in offering permanent status to those with an idea and Canadian funding.

However, the new Canadian program could present an excellent opportunity for foreign entrepreneurs and Canadian investors. Canada is eager to welcome entrepreneurial talent, and to see this program succeed. For a fledgling start-up, this may be just the time and place to turn plans into reality.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist potential Start-Up Visa applicants with assessing their eligibility, preparing comprehensive application packages, and addressing any potential complications.

– Warren L. Creates & Jacqueline J. Bonisteel

Criminal Inadmissibility Explained

Under the Immigration and Refugee Protection Act, SC 2011, c. 27  (“IRPA”), a non-citizen of Canada may be considered “inadmissible” to Canada due to past criminal convictions or the commission of certain criminal acts. Anyone planning to enter Canada to seek permanent residency, to study, work, or simply visit may be denied entry if he/she has been charged or convicted of a criminal offence. Anyone living in Canada as a permanent resident or foreign national may be forced to leave due to criminality. Even minor offences may render a person inadmissible to Canada.

If you have been found criminally inadmissible to Canada, or are concerned that you may be, the Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. can help. This article offers a brief outline of the circumstances in which a person will be considered criminally inadmissible, and the options available for overcoming a finding of criminal inadmissibility. For legal advice specific to your case, please contact us to arrange a consultation.

 

How to determine whether you are criminally inadmissible

Determining whether a criminal offence will render a person inadmissible to Canada is not always an easy task. There are three (3) types of crimes in Canada: summary offences, indictable offences, and hybrid offences. Summary offences are the least serious criminal offences while indictable offences are considered serious crimes. Hybrid offences are those punishable by either summary conviction or by indictment. For the purposes of Canadian immigration law, a hybrid offence is treated as indictable.

A person convicted of only one (1) summary offence will not be considered inadmissible for reasons of criminality. If convicted of one or more indictable offences, or more than one summary offence, then a person may be considered criminally inadmissible and should consider the options for overcoming that inadmissibility—preferably prior to seeking entry to Canada.

Note that a foreign national can be considered criminally inadmissible even for minor offences, whereas the offence(s) must be more serious for a permanent resident of Canada to be rendered inadmissible. A permanent resident of Canada can only be rendered inadmissible on the grounds of serious criminality under the provisions of s. 36(1) of IRPA, whereas a foreign national (i.e. a person with no permanent status in Canada) can be rendered inadmissible on the grounds of serious criminality under s. 36(1) or criminality alone under s. 36(2).

Those charged as young offenders (under 18 years) generally will not be rendered criminally inadmissible.

The types of criminality that can lead to inadmissibility can be grouped into the following four categories:

1)      Convicted in Canada;

2)      Convicted outside Canada;

3)      Committed an “act” outside Canada; and,

4)      Committed an “act” upon entering Canada.

 

(a) Convicted In Canada

Under s. 36(1)(a) of the IRPA, a permanent resident or a foreign national will be considered inadmissible if he or she has been convicted (in Canada) of an offence:

  • carrying a maximum term of imprisonment of at least 10 years; OR
  • for which a term of imprisonment of more than six months has been imposed.

S. 36(2)(a) applies only to foreign nationals. Under this section, a foreign national is inadmissible if convicted (in Canada) of:

  • An offence punishable by way of indictment; OR
  • Any two offences not arising out of a single occurrence.

 

(b) Convicted Outside Canada

A conviction for a crime committed outside of Canada triggers ss. 36(1)(b) and 36(2)(b) of the IRPA. A permanent resident or foreign national may be found inadmissible if an officer has “reasonable grounds to believe” that he or she was convicted of one or more offences outside Canada.

In order for the foreign conviction to render a person inadmissible, the activity must be a crime both in the place where it was committed and in Canada. An offence committed abroad that is considered serious in a foreign country may be considered a summary offence in Canada or, in some cases, may not be considered a crime in Canada at all. It does not matter how serious the crime is considered in the country where it was committed; what matters is how the crime is classified under Canadian law. To determine this, a careful study of the crime in the context of Canadian criminal law must be undertaken. Even if the offence is a crime in Canada, a foreign pardon may be recognized where it is similar to the record suspension (i.e. pardon) process in Canada.

To summarize, in order to be considered inadmissible under these provisions, the offence committed abroad must be equivalent to an offence in Canada, and:

  • For both permanent residents and foreign nationals,
    • The offence must be punishable by a maximum term of imprisonment of at least 10 years (in Canadian law);
  • For foreign nationals only,
    • The offence must constitute an indictable offence (in Canadian law); OR
    • The offence must constitute two offences not arising out of a single occurrence (in Canadian law).

 

(c) Committed an “Act” Outside Canada

The intent of sections 36(1)(c) and 36(2)(c) of the IRPA is to deny entry to Canada to those fleeing a criminal proceeding in a foreign jurisdiction. However, it is only applicable if that criminal activity could result in a conviction under Canadian law.

These provisions may also be used where an offence was committed but no conviction was registered.  They cannot be used where the person has been acquitted.

In order to be considered inadmissible under these provisions, the act committed outside Canada must be an offence under the law in the jurisdiction where it occurred, and:

  • For both permanent residents and foreign nationals,
    • The offence must be punishable by a maximum term of imprisonment of at least 10 years (in Canadian law);
  • For foreign nationals only,
    • The offence must constitute an indictable offence (in Canadian law); OR
    • The offence must constitute two offences not arising out of a single occurrence (in Canadian law).

 

(d) Committed an “Act” Upon Entering Canada

Where an offence occurs at the port of entry (airport or border crossing) but charges have not been laid, Canadian officials maintain the authority to find a person inadmissible pursuant to section 36(2)(d) of IRPA.

In order to be considered inadmissible under this provision, there must be reasonable grounds to believe that an offence was committed upon entry to Canada, and the offence must be indictable.

 

Overcoming a Finding of Criminal Inadmissibility

Criminal inadmissibility is not necessarily an absolute or permanent bar to entering and/or remaining in Canada. In many cases, there are means of overcoming inadmissiblity.

(a) Rehabilitation

The IRPA’s “rehabilitation” provisions are the primary means by which inadmissibility can be overcome. There are two available types of rehabilitation:

1)      deemed rehabilitation; and,

2)      rehabilitation by way of a formal application process.

In certain cases, you will automatically be considered absolved of your crime after a certain amount of time has passed. In other words, you are “deemed” rehabilitated. Deemed rehabilitation applies in the following situations:

–         after five (5) years have elapsed for a person who has committed two or more summary offences; or

–         after ten (10) years have elapsed for a person who has committed only one indictable offence carrying a maximum penalty of less than 10 years

The deemed rehabilitation provisions are not applicable if the prescribed time periods have not elapsed, or if the person committed subsequent indictable offences. Further offences committed after the date of any deemed rehabilitation would void the effect of the deemed rehabilitation.

Where deemed rehabilitation does not apply, a person may apply for individual rehabilitation. At least five (5) years must have passed since the completion of all sentences (including the payment of any fine, restitution, and/or probation), and an application must be submitted to the responsible Canadian visa office. Processing times can be lengthy (up to one year).

(b) Record Suspensions or Discharge

Where a record suspension (formerly a pardon) or discharge is obtained for a conviction in Canada, that conviction will no longer lead to inadmissibility. The Parole Board of Canada issues record suspensions. A request to purge an absolute or conditional discharge should be directed to the RCMP.

A foreign pardon may have the same effect on inadmissibility, but it must be recognized in Canada.

(c) Temporary Resident Permit

Those not eligible for rehabilitation, a pardon or a discharge may still be permitted to enter on a Temporary Resident Permit. This document allows an applicant to enter or remain in Canada in spite of the inadmissibility. For more details on Temporary Resident Permit applications, see our article on this subject.

(d) Application for Permanent Residence on Humanitarian & Compassionate Grounds

If you are seeking permanent entry despite inadmissibility, an application for an exemption on humanitarian and compassionate grounds can be made. If your humanitarian & compassionate request is granted, inadmissibility will no longer act as a barrier to achieving permanent status in Canada. There must be exceptional circumstances to justify granting such an application. Succeeding in these applications is very difficult, but they do provide a last-resort option for those who are established in Canada and lack other means of overcoming their criminal inadmissibility.

 

Conclusion

Criminal inadmissibility is a hurdle for those who wish to enter or remain in Canada, but it is not necessarily an insurmountable hurdle. Our team of immigration law professionals can help determine your options, and provide strategic advice that often overcomes inadmissibility.

Making a Refugee Claim in Canada: What You Need to Know

Are you or someone you know planning to come to Canada to claim refugee status? If so, you should know that the refugee determination process from within Canada has recently undergone some dramatic changes. Timelines are shorter, and stricter standards are now applied to claimants originating from certain countries deemed “safe”. It is essential for potential claimants and those who assist them to understand the new system and to take important steps that will increase the potential for a positive outcome.

Claiming Refugee Status at the Port of Entry

A foreign national (i.e. a non-Canadian) can claim refugee status as soon as he or she arrives at a Canadian port of entry (the airport or border crossing). If the foreign national is found eligible to make a refugee claim, a date for the hearing of the claim will be provided right away. The claimant will also be given a form called the Basis of Claim form (BoC) that needs to be completed and filed at the Immigration and Refugee Board (IRB) within 15 days.

Claiming Refugee Status from within Canada

If a person decides to make a refugee claim after entry to Canada, he or she can fill out the forms at any time (though delays should be avoided—see the section of this article entitled “Do Not Delay”). The potential claimant can go into a Citizenship and Immigration Canada (CIC) office to obtain the forms, or can download them online. The necessary forms include the Basis of Claim (BoC) form as well as permanent resident application forms. Once these are filled out, the potential claimant must go into a CIC office to make the refugee claim. CIC will take the forms, and will provide a date for the claimant to come back for an interview. At that interview, the claimant’s eligibility will be determined. If eligible, the claimant will be given a hearing date.

The Basis of Claim Form

The Basis of Claim (BoC) form should never be filled out without the assistance of a lawyer or paralegal. For low-income claimants, the Legal Aid body in their province of residence may offer funding for legal assistance in filling out the BoC. The BoC is the most important document for a refugee claim. It must be completed thoroughly and carefully. Too often, when refugee claimants complete this form without professional assistance and advice, mistakes are made and important details are left out. Even a strong claim for protection will be seriously compromised by a deficient BoC. Only a specialist with a strong understanding of Canadian refugee law can ensure that the BoC is thorough and complete.

The Hearing

Everyone who makes a refugee claim in Canada after 15 December 2012 will have a hearing within 60 days of being found eligible. If the claimant comes from a country of origin that has been “designated”, the hearing will be held within 45 days (if the claim is made at the Port of Entry) or 30 days (if the claim is made from within Canada). Claimants are required to submit all evidence 10 days before the hearing.

These timelines leave very little time to prepare. As such, it is important for claimants to be organized in advance. Claimants should arrange for legal representation at the hearing before or as soon as possible after they are given a hearing date. Any and all relevant documents should be gathered prior to departure and brought to Canada. If it is not possible to bring all documents to Canada at the time of the claimant’s arrival, the claimant should arrange for them to be sent as soon as possible. If uncertain whether a document is relevant, a claimant should provide it to their legal advisor, who will be able to make that determination.

Evidence

Refugee claimants must always prove their identity. The more documentation provided to establish the identity of the claimants and their family members, the better. National identity cards, birth certificates, marriage certificates, and membership cards from organizations are just some examples of the documents that should be gathered and brought to Canada where possible. Original documents, with certified translations, are always best.

A refugee claimant must also provide evidence to show that his or her claim of persecution is truthful. Again, the more documentation provided to validate the claimant’s statements, the better. Examples of helpful documents include police reports, medical records, newspaper articles (naming the claimant or others experiencing similar persecution), photographs, signed letters from individuals who can confirm details of the claimant’s story, and reports of human rights organizations or academic bodies. Individuals in Canada who can verify the claimant’s identity or support the protection claim can appear at the hearing to give testimony. Such individuals might include expert witnesses with knowledge of the conditions in the claimant’s country of origin.

Do Not Delay

In our practice, we often see refugee claimants who leave the country where persecution is feared, and then travel to other places before coming to Canada. We also see claimants who, despite their fear, return to their country of origin after spending time abroad. Oftentimes, a claimant will stay in Canada for months or years before deciding to make a refugee claim, or will wait months or years to leave their country after obtaining the necessary visa or travel documents.

Although there are many valid reasons to explain why a refugee claimant will wait to come to Canada and/or make a refugee claim in Canada, the Board members who evaluate refugee claims usually take a negative view of these delays. Delay is treated as a sign that a person is not truly afraid to return to their country of origin.

As such, it is always best to claim refugee status in Canada in a timely manner. Those planning to make a refugee claim should avoid spending lengthy periods of time in other countries en route to Canada. They should also avoid going back and forth to the country where persecution is feared. They should leave their country as soon as possible after the act or threat of persecution presents itself and, upon arrival in Canada, they should make a refugee claim without delay.

Sometimes, delays cannot be avoided. However, claimants often allow time to pass without understanding that this could impair their chances of obtaining refugee protection in Canada. All claimants should be aware that delays are to be avoided wherever possible, and that they must be prepared to explain any inevitable delays.

Getting to Canada

Out of desperation, refugee claimants often hire people to help them acquire false documents to enter Canada, or to help them enter Canada by means that are illegal (i.e. “smuggling”). When two or more people enter the country together in this way, they may be considered as “designated foreign nationals”, which means they will be treated differently from other refugee claimants under Canada’s new laws. “Designated foreign nationals” face automatic detention in Canada. If they are accepted as refugees, they are barred from applying for permanent resident status for five years. They cannot access Canadian healthcare unless it is an emergency. If the refugee claim of a designated foreign national fails, that claimant will not have the appeal rights that normally apply.

Sometimes, the only way for a person to escape their home country is by way of a smuggler. However, if there are potentially other means of bringing a claimant to Canada, these should be considered, because the consequences of being named a “designated foreign national” are severe.

Who Can Help

If the claimant or his/her supporters have access to funds to hire legal counsel, an experienced Canadian refugee lawyer or paralegal can be approached directly for help. Claimants are advised to verify the credentials and experience of their legal advisor before engaging their services.

If a claimant cannot afford a lawyer, he or she can approach the Legal Aid office in their Canadian province of residence to determine eligibility for free or subsidized legal assistance. If eligible, Legal Aid will provide the names of nearby refugee lawyers who will accept Legal Aid certificates.

Individuals can also approach refugee settlement organizations for advice on refugee claims, and for assistance with adjusting to life in Canada. Settlement organizations are located across the country. In Ontario, this website can help refugee claimants locate nearby services.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. is proud to assist refugee claimants in the Ottawa area, either directly or through Legal Aid Ontario. Both Warren Creates and Jacqueline Bonisteel are members of Legal Aid Ontario’s Refugee Law Panel. We invite potential refugee claimants or their supporters to contact our office to set up a consultation.

Warren L. Creates and Jacqueline J. Bonisteel

New Federal Skilled Trades Program Unveiled

On January 2nd, 2013, Citizenship and Immigration Canada began accepting applications to the new Federal Skilled Trades Program. The Program offers permanent resident status to foreign nationals qualified in a skilled trade. It is intended to improve Canada’s ability to meet the labour demand in trades sectors such as construction, oil & gas, mining, agriculture, and forestry, which have some of the highest sectoral job vacancy rates in Canada. The Canadian Construction Association says that, by 2020, Canada will need 320,000 additional construction workers—only about half of which are likely to be available from domestic sources.

The program will be particularly beneficial to provinces like Alberta, which holds the highest job vacancy rate in the country (3.6% as of November 2012). It is estimated that Alberta will need 115,000 additional workers in skilled trades over the next 10 years.

In the first year of the program, a maximum of 3,000 applications will be processed. The Program applies to 43 categories of jobs, divided into two groups. For the first group, which includes 17 “moderate labour market need” job categories, a sub-cap of 100 applications per job category applies (i.e. once 100 applicants are accepted for an individual job category, that category will be closed for the year). The second group includes 26 “in-demand” jobs for which there will be no sub-caps. A list of all job categories presently included in the Program can be found here. All belong to Skill Level ‘B’ of the National Occupation Classification (NOC).

Applicants must meet all of the following eligibility criteria:

  • meet all job requirements for the skilled trade category;
  • plan to live outside Quebec;
  • have at least two years’ full-time experience (or the equivalent in part-time experience) in the trade within the five years prior to application;
  • prove basic proficiency in either English or French by way of a language test from an organization approved by CIC;
  • have a full-time offer of employment for a total period of at least one year, OR a certificate of qualification issued by a provincial or territorial body.

CIC is currently estimating that applications will be processed within 12 months.

Applications will be processed in the order they are received up until the yearly cap is reached. As such, potential applicants should act quickly, and ensure that their application is complete and accurate at the time of submission.

The Foreign Skilled Trades Program offers an unprecedented opportunity to many who, in the past, may only have been eligible for a temporary work permit. Unlike a work permit, the Program leads to immediate permanent resident status in Canada. After residing in Canada for three years, those accepted under the program can acquire Canadian citizenship, leading to a Canadian passport. Canadian law recognizes and permits dual and multiple citizenships.

The Immigration Law Group at Perley-Robertson, Hill & McDougall LLP/s.r.l. has the expertise to assist both employers and potential applicants with evaluating eligibility for this program, preparing comprehensive application packages, and addressing any potential complications.

Detailed information on the program is available from the Citizenship and Immigration Canada website:http://www.cic.gc.ca/english/immigrate/trades/index.asp

Warren L. Creates and Jacqueline J. Bonisteel

Can Inadmissibility to Canada be Overcome? The Temporary Resident Permit Explained

Unless your name is Lord Black of Crossharbour, a determination that you are inadmissible to Canada is not easily overcome. Where the Canadian authorities find a permanent resident or foreign national inadmissible, that person must leave Canada, and will not be permitted to return for any purpose. Inadmissibility is most often triggered by a criminal conviction, or a finding that one’s health condition will cause excessive demand on social services or a danger to public safety. Inadmissibility can also be based on a perceived security threat to Canada, misrepresentation, a finding of involvement in human rights violations abroad or organized crime, or a determination that adequate arrangements for financial support have not been made.

When a finding of inadmissibility is made, the options for challenging that decision are limited, and most carry low prospects of success. In cases of criminal convictions, it may eventually be possible to end the inadmissibility by way of rehabilitation. However, rehabilitation is not available in all cases and, even where it is, a significant period of time (either five or ten years) must pass before the rehabilitation provision (s. 36(3)(c) of the Immigration and Refugee Protection Act (”IRPA”)) can be triggered.

A more immediate solution is available in exceptional cases: the Temporary Resident Permit (TRP). Pursuant to s. 24 of the IRPA, a TRP allows an inadmissible person to enter Canada for a limited period of time where “justified in the circumstances”. Exceptional circumstances justifying the issuance of a TRP might include attendance of a family event like a birth or funeral, the need to spend time with immediate family in Canada, participation in a sporting or cultural event, or an important business visit. A TRP can be issued for a period of one day to three years.

In high-profile cases where Canada is likely to benefit from the presence of an inadmissible person, the prospects of success are much higher. For example, where a famous musician is planning to tour Canada but is inadmissible due to an impaired driving conviction, a TRP is likely to be issued for the duration of the tour to allow the musician to play, and to allow Canada to reap the economic and cultural benefits of the performances. The recent controversial case of newspaper magnate and convicted felon Conrad Black is also revealing: in just weeks, Lord Black was granted a one-year, multiple-entry TRP on the basis that his family home is in Toronto and his wife and children are Canadian citizens. The TRP was granted despite the fact that Lord Black was still in prison in the U.S.—an “extraordinarily rare” occurrence.[1]

Where a case is not so high-profile, obtaining a TRP tends to be more difficult. Officers will be cautious in granting a TRP not only because of the potential risk to Canadians posed by inadmissible persons, but also because members of the permit holder class have access to significant privileges, such as the ability to apply for a work or study permit inland, and access to health and social services. As well, when a TRP holder is in Canada and was not inadmissible on the grounds of serious criminality, organized crime, security, or the violation of human or international rights, that person will automatically become entitled to permanent residence after a prescribed period. These are significant rights that Canada will be very guarded in granting to persons previously found ineligible to enter the country.

To make a TRP application compelling, it is essential to convince the officer that the applicant poses no danger to the Canadian public, and will not be reliant on Canadian social services. Supporting documentation such as recent medical records, letters of support, and proof of a lack of recent criminal activity can be put forward. An application is also more likely to succeed where there is a credible reason for the visit to Canada. A TRP requested for a limited duration tied to a specific event is likely to be looked upon more favourably than one requested for a longer duration and a vague purpose.

Officers are afforded significant discretion in evaluating a TRP application. Still, the officer considering the application is required to act fairly, to account for all relevant factors, and to properly weigh those factors before rendering a decision. For instance, where a TRP is sought to overcome criminal inadmissibility, the officer is directed to consider the seriousness of the offence, and to undertake an assessment of the risk of further criminal activity. If this duty to act fairly is breached, the decision may be overturned by the Federal Court on judicial review. The application will then be sent back for re-determination by a different officer. There are case law precedents where a refusal to extend a TRP has been overturned on judicial review because the officer failed to provide adequate reasons, or provided reasons that were so unreasonable so as to constitute an error of law.[2]

Nonetheless, in the context of officer discretion, overcoming a negative decision will be difficult, and applicants are advised to consult an experienced immigration lawyer before submitting a TRP application or embarking on a challenge to a negative TRP decision. Our Immigration Law Group specializes in this area. We can assist you in exploring your legal options where you or a family member has been found inadmissible, and can also help ensure that an application for a TRP has the strongest possible chance of success.

Warren L. Creates and Jacqueline J. Bonisteel

 

[1] Steven Chase, “Just how special is Lord Black’s residency permit?” The Globe and Mail (2 May 2012) <http://www.theglobeandmail.com/news/politics/just-how-special-is-lord-blacks-residency-permit/article4105216/>.

[2] See, for example, Beyer v Canada (Minister of Citizenship and Immigration), 2009 FC 823 (CanLII);Figueroa v. Canada (Minister of Citizenship and Immigration), 2003 FC 1339 (CanLII).

Implications of Canada’s Crackdown on Citizenship Fraud

This month, Canada’s Citizenship, Immigration and Multiculturalism Minister Jason Kenney announcedthat the government is in the process of revoking the Canadian citizenship of up to 3,100 citizens who obtained it fraudulently. Furthermore, up to 5,000 permanent residents have had their files flagged, and will face extra scrutiny if they apply for citizenship or attempt to enter Canada from abroad. A total of nearly 11,000 individuals are currently under investigation for potential citizenship and residence fraud.

Many of the cases relate to citizenship obtained fraudulently with the assistance of immigration consultants. Investigators have discovered cases where consultants, located both in Canada and abroad, allegedly orchestrated large-scale schemes that encouraged permanent residents to represent that they were living and working in Canada. In reality, the applicants were abroad and did not meet the Canadian residency requirement to apply for citizenship. Many such dishonest and negligent immigration consultants are now facing criminal investigation and multiple charges.

The scale of this crackdown on fraudulently-obtained citizenship is unprecedented, and is likely to continue. The Department’s current focus on fraud should be noted by all those seeking to apply, even where there is no issue of illegitimacy. The Department of Citizenship and Immigration will likely be carefully scrutinizing every citizenship application, and this means that all applicants can expect longer delays and heavier documentation requirements to result from these new developments. The bar is now very high.

Is your Canadian citizenship subject to revocation?

If you have been notified that the citizenship of yourself and/or your family members is set to be revoked, you have options. You have a right to have your case referred to Federal Court, which may be worthwhile if you believe the government made some error in alleging that your citizenship was obtained illegitimately. You may also have an opportunity to bring a humanitarian argument that an exception ought to be made in your circumstances, even where misrepresentation is admitted.

Experienced immigration counsel can advise you or your family members on your options, and outline the costs and potential for success of each approach.

Are you seeking to apply for Canadian citizenship?

If you are seeking to apply for Canadian citizenship, it is important to be cognizant of these new developments. Your application must be thorough, complete, and must offer answers to any potential questions or concerns. This is particularly true if you have not met the requirements for physical presence in Canada (for more on this, see our article on meeting the residency requirement). Time, cost and frustration can all be reduced by structuring a very thorough application. So too can the risk of failure. Experienced immigration counsel can advise you and your family members on your likelihood of success, and can help you ensure that your application is as thorough and as persuasive as possible.

Our Immigration Law Group specializes in this area of law. We can assist you in exploring your legal options where revocation is at issue, and can also help ensure that an application for Canadian citizenship has the strongest possible chance of success.

Warren L. Creates and Jacqueline J. Bonisteel

Meeting the Residency Requirement in Applications for Canadian Citizenship

To be granted Canadian citizenship, the law requires a permanent resident to reside in Canada for at least three of the past four years (1095 days). Most courts have called for a flexible approach to this requirement, allowing for longer physical absences from Canada so long as an applicant can prove that he or she “regularly, normally or customarily lives” or has a “centralized mode of existence” in Canada. While it has permitted sensitivity to the circumstances of individual permanent residents, the flexible approach has led to confusion and inconsistency, making it difficult to predict the outcome of a citizenship application where the residency requirement is not met.

One thing that is clear is that an application based on factors other than physical presence in Canada will be carefully scrutinized. Recently, our firm has seen an increasing number of cases where an applicant was granted citizenship by a judge based on centralized mode of existence, and the judge’s decision was immediately appealed by Citizenship and Immigration Canada (CIC). Now more than ever, applicants must make a clear and convincing case that Canada is truly their home base.

Where physical presence in Canada comes up short, most judges in recent years have applied the “centralized mode of existence” test. The initial threshold question is whether residence in Canada has been established at all. If it is determined that an applicant does meet the threshold, the court will go on to consider the six questions articulated in the leading case of Koo (Re), [1993] 1 FC 286:

(1)   Was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship?

(2)   Where are the applicant’s immediate family and dependants (and extended family) resident?

(3)   Does the pattern of physical presence in Canada indicate a returning home or merely visiting the country?

(4)   What is the extent of the physical absences?

(5)   Is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, or accompanying a spouse who has accepted temporary employment abroad?

(6)   What is the quality of the connection with Canada – is it more substantial than that which exists with any other country?

While some judges continue to apply a strict residency requirement, or look to the intention to reside in Canada more generally, the answers to these six questions must be addressed by all applicants who have not been physically present in Canada for the full three years. CIC’s own residency questionnaire asks about home and family ties, employment ties, and social ties in Canada, and requires applicants to set out their reasons for all absences. It therefore appears that, in addition to the courts, the government has adopted “centralized mode of existence” as the dominant test. It is likely that the answers to these six questions from Koo are fundamental to the CIC’s determination of whether to appeal a citizenship judge’s positive decision.

An application for citizenship that is not based on three years of permanent residence in Canada is never a guarantee. However, applicants can vastly increase their chances of a positive outcome by filing extensive evidence of ties to Canada. This could include evidence of property, assets, bank accounts, payment of taxes, memberships in clubs or associations, family members in Canada, frequent travel back to Canada, weak ties to other countries, or evidence that employment or education abroad is temporary. No one of these things is either essential or determinative, however, the more evidence of concrete ties to Canada and intention to maintain those ties, the stronger the likelihood of success.

Our Immigration Law Group specializes in this sometimes complicated area of law. We can help ensure that submissions on “centralized mode of existence” are as complete and persuasive as possible.

Warren L. Creates and Jacqueline J. Bonisteel

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