Permanent Residence for under 22 children - Temporary Public Policy

by Rekha McNutt

This post follows up on our last post announcing the coming into force the change to the age of dependent children. 

You might be wondering how to gain permanent residence for a child who wasn't eligible prior to October 24, 2017. CIC has a temporary public policy in place which provides guidance on how to get this done.

The government announced the change to the age of dependency on May 3, 2017, even though it only came into force a few days ago. As such, this public policy only applies to those applications made by the parents of these children between May 3, 2017, and October 23, 2017. 

The Policy provides the following guidance for eligibility:

Based on public policy considerations, delegated officers may grant an exemption from the provisions of the Regulations listed below to foreign nationals who meet the following eligibility criteria and conditions:

A permanent residence application for a child can be made if the:

  1. Child was 19, 20, or 21 as of May 3, 2017 (the date of final publication of the regulatory amendment) or as of date the parent’s permanent residence application was made, if received on or after May 3, 2017 and before October 24, 2017;
  2. Parent or child had a permanent residence application that was either pending on May 3, 2017 or was received on or after May 3, 2017 and before October 24, 2017 (the child must have been previously identified as “additional family” on their parent’s application);
  3. Child is not a spouse/common-law partner; and,
  4. Child is not otherwise inadmissible.

The child can be:

  1. Processed or added to an application (as a dependent child) if the permanent resident visa or Confirmation of Permanent Residence (COPR) had not been issued at the time the Department was notified of the intention to add the child; OR
  2. Sponsored as a member of the Family Class once the parent is granted permanent residence.

 

Note: Refugees and protected persons may add a child who was 19, 20, or 21 on May 3, 2017 and (not a spouse/common-law partner) as an accompanying or non-accompanying dependant on a pending application; non-accompanying dependants would be able to apply for permanent residence within the one-year window.

An application to sponsor a child who is eligible under this public and is 22 or over at time of sponsorship, must be received by the Department within one year after their parent is granted permanent residence. Children who are under 22 at time of sponsorship will be processed under the regular sponsorship regulations.

Notification Period: Parents who wish to apply for their child to come to Canada must notify the Department of their intention to do so by January 31, 2018, in accordance with instructions provided by the department.

For those parents whose PR applications have been finalized already, and who may still have children under 22, a simple/regular sponsorship of a child application is still possible. 

 

Age of Dependent Child - now 'under 22'

by Rekha McNutt

Today is the day! The age of dependent children is to revert back to 'under 22'. You can read the original release here.

The previous changes had lowered the age of dependent children to under 19 and removed the exception for those enrolled in post-secondary education.

Going forward, a "dependent child" is any biological or adopted child of the parent, who is in one of the following situations of dependency:

  • Is under 22 and not a spouse or common-law partner;
  • is 22 or older but has depended substantially on the financial support of the parent since before the age of 22 and is unable to be financially self-supporting due to a physical or mental condition 

Those who have pending permanent residence applications can now add their under 22 children to their application, if they were formerly prevented from doing so when the age limit was under 19. Those whose permanent residence applications have been finalized may be in a position to sponsor their under 22 child.

 

Alberta Immigrant Nominee Program (AINP) - 2018 program changes

by Rekha McNutt

AINP has announced some significant changes to the way it will intake applications from 2018. Here are some insights from their recent release:

Key changes

  • Effective Jan. 2, 2018, the AINP will consolidate the Employer-Driven and Strategic Recruitment Streams and 11 sub-categories under one new Alberta Opportunity Stream.
  • The Alberta Opportunity Stream will have one single set of eligibility criteria, ensuring a simpler application process and shorter processing times.
  • Beginning in 2018, the AINP will have the ability to place yearly caps on the number of applications accepted and nominations issued for certain sectors and occupations, ensuring equitable distribution of workers and fairness across all sectors and industries in Alberta.
  • Alberta will add an Express Entry Stream allowing the AINP to select candidates from the federal Express Entry pool. This will be operational in January 2018.

Alberta labour anticipates shortages in the following areas:

  • nurse supervisors and registered nurses (shortage of 5,434 workers by 2025)
  • medical technologists and technicians (shortage of 2,322 workers by 2025)
  • computer and information systems professionals (shortage of 1,426 workers by 2025)
  • managers in construction and transportation (shortage of 1,386 workers by 2025)
  • sales and service supervisors (shortage of 1,145 workers by 2025)

Some notable features of the new Alberta Opportunities Stream:

  1. Occupation Requirements - your occupation must be eligible both at the time you apply and when AINP assesses the application. There is a list of ineligible occupations but it does not appear to limit the NOC skill levels
  2. Residency & work permit requirements - applicants must be living and working in Alberta on valid work permits (implied status or awaiting restoration will not work)
  3. Mandatory language testing - seems to apply to all NOC levels and currently requires a min. of CLB 4 (up to CLB 5 beginning in 2019)
  4. Educational requirements - minimum high school diploma and an Education Credential Assessment (ECA) if the diploma is foreign. Exceptions exist if your work experience is in a compulsory or optional trade, and you have a valid Qualification Certificate 
  5. Work Experience - You must remain working in the same occupation throughout the processing of your application. You must demonstrate minimum work experience in Alberta or abroad in the same occupation applying under. A written job offer is also required.
  6. Income levels - minimum income is required and varies depending on the size of your family unit

 

HUGE decision by SCC - Conditional Sentences & Serious Criminality for Permanent Residents

by Rekha McNutt

The Supreme Court of Canada just released its decision in the Tran case. At issue in the case was the interpretation to be given to section 36(1)(a) of the Immigration and Refugee Protection Act (IRPA), which reads:

36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;

Any permanent residents found to be inadmissible for "serious criminality" lost their right of appeal to the Immigration Appeal Division (IAD) pursuant to section 64 of IRPA:

64 (1) No appeal may be made to the Immigration Appeal Division by a foreign national or their sponsor or by a permanent resident if the foreign national or permanent resident has been found to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

(2) For the purpose of subsection (1), serious criminality must be with respect to a crime that was punished in Canada by a term of imprisonment of at least six months or that is described in paragraph 36(1)(b) or (c).

The SCC in Tran clarified two points:

  1. the relevant point in time when the punishment of an offence is to be assessed; and
  2. whether conditional sentences are to be considered a "term of imprisonment"

Tran had been charged under the Controlled Drug and Substances Act for production of a controlled substances (he had a grow op). At the time of his charge, the section he was charged under had a maximum possible punishment of 7 years in prison (therefore not "seriuos criminality" under IRPA). However, the max possible punishment was amended to 14 years in prison by the time he was convicted (now suddenly "serious criminality". 

The SCC clearly held that "the relevant datefor assessing serious criminality under s. 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision" [paragraph 42].

The other issue in Tran was the actual punishment that was imposed. Tran received a 12-month conditional sentence of imprisonment, to be served in the community. In essence, no jail time. The question then became whether a conditional sentence ought to be interpreted as a "term of imprisonment" for purposes of IRPA, thereby classifying this as a "serious criminality" issue and barring any appeal rights to the IAD.

The SCC held that a conditional sentence was not equivalent to a prison sentence and the two ought not to be considered as such. The SCC wrote:

[25] First, the purpose of s. 36(1)(a) is to define “serious criminality” for permanent residents convicted of an offence in Canada. It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.

[26] Chief Justice Lamer explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 44, that “a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration”...

[28] Not only is length an unreliable indicator of “serious criminality” when comparing jail sentences to conditional sentences, but it may not even be a reliable measure across conditional sentences because of the disparate conditions attached to them. More fundamentally, conditional sentences generally indicate less “serious criminality” than jail terms. As Lamer C.J. said, a “conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (Proulx, at para. 21; see also R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, at para. 102). Thus, interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality.

[32] If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow...It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1)(h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

This decision has enormous implications for any permanent residents facing criminality issues. If a permanent resident has been convicted of an offence "punishable" by 10 years or more, but receives a conditional sentence, then they still have an appeal right to the IAD. The IAD has the ability to allow such individuals to remain in Canada despite the criminality, by considering any humanitarian and compassionate factors that may justify such a decision. 

Canadian Citizenship Changes - October 11, 2017

Minister Hussein spoke in Brampton, ON (broadcast via Facebook Live) this morning on the issue of upcoming changes to the Citizenship Act. Here is a summary of those changes:

1. Residency Requirement

At present, a Permanent Resident ("PR") is required to physically reside in Canada for 4 years out of the last 6 years, as well as physical presence for 6 months (183) days for four of those years. 

The changes coming next week will change this requirement to physical residence for 3 years in the last 5.

2. Filing Income Taxes

The requirement to file taxes continues and must be demonstrated for the relevant 3 year period to correspond to the changes to the residency requirement.

3. Lawful physical presence as a Temporary Resident ("TR")

It used to be that time spent in Canada as a legal TR could be counted for 1/2 time towards citizenship residency. So, someone here on a work permit for 4 years prior to getting PR could have counted 1 year towards their citizenship time, thereby only requiring 2-years of physical presence post-PR to be eligible for citizenship.

The previous government did away with this requirement. 

The changes coming into play next week will reinstate the rule allowing pre-PR lawful TR time to count towards citizenship residence, up to a maximum of 1 year. 

4. Language/Knowledge test

The previous government broadened the age range of citizenship applicants who must write the language and knowledge test. 

Next week's changes will return the range to what previously existed. As such, anyone between the ages of 18 and 54 must write the knowledge and language test to be granted citizenship.

These changes are not a surprise - they were made ages ago but have not come into force. They will come into force on October 11, 2017, which means all applicants thereafter will benefit from these changes.

If you believe you might now qualify for citizenship but aren't sure, or you have questions about this process, contact us and we will be glad to help you!

Law at Your Library: Immigration Law - Overseas Family Sponsorships

Are you interested in learning more about overseas family sponsorships or have questions about these programs? If so, come attend a free session hosted by the Calgary Public Library and Calgary Legal Guidance on Monday October 2, 2017 at 6pm. You will hear from Rekha McNutt and Lucinda Wong of our office.

Click here to reserve your spot!

Refugee (Asylum) Claims - Understanding the Process

There has been a lot of news coverage about the influx of refugees (asylum seekers) into Canada via the United States, particularly into Quebec. This post is meant to explore who is entitled to make such a claim in Canada and what claimants can expect.

Eligibility to make the claim

Canada and the US have entered into what's called a "safe third country agreement". Essentially, both countries consider the other to be relatively equal in terms of refugee protection and the refugee process. As such, there is an expectation for claimants to make their refugee claim in the first of these two countries. 

The practical consequence of this agreement is that it prevents individuals crossing from the US into Canada at a land border from making a claim in Canada. 

There are exceptions to this agreement:

  • If the claimant has family in Canada
  • If the claim is made at an in-land office
  • If the claim is made at an airport

There are other eligibility factors as well, but this is the main issue affecting those entering Canada at a land border from the US. The eligibility determination is the first step in determining whether someone will be allowed to make a claim in Canada.

Eligible Claimants

Once a claimant is deemed eligible to make a refugee claim, they are provided a hearing date within 45-60 days depending on where their claim was made. 

Claimants are instructed to complete medical exams, and once that is in the system, they are eligible for open work permits. 

A successful claim

It is imperative that a thorough legal opinion be sought before a claim is made to determine the likelihood of success. A "refugee" or "protected person" is a very specific defined term. Not everyone escaping horrible conditions in their country of origin will meet these definitions. A refugee-type risk is a personal risk to the individual, and one that is not generally faced by the general population. There are a number of grounds of persecution that must be proved to meet this definition. 

A refugee claim is extremely technical and involves complicated legal principles. Corroborating evidence in support of a claim is also crucial. A failure to grasp those issues from the outset can result in disastrous consequences. These are matters that must be thought of and planned as far in advance as possible in light of how quickly hearings are held. 

Claimants really only have one opportunity to prove their case.

Your claim might not meet the legal definitions of Refugees. But maybe you have a humanitarian claim which is a better option. Proper legal counsel is required to assess what is best. 

The Hearing 

A refugee hearing is presided by a Member of the Refugee Protection Division (RPD) who questions the claimant and reviews the documentary evidence. The Member will then render a decision on whether the claimant meets the definition of a Convention Refugee or Protected Person. 

Post-hearing

If the outcome of the hearing is positive, then the claimant can apply for permanent residence. 

If the outcome is negative, an appeal right to the Refugee Appeal Division may exist. Alternatively, a Judicial Review application to the Federal Court might be the only option. 

If no appeals are available (or are unlikely to succeed), then Claimants need to be aware of imminent deportation. Those who entered via the US (having met an exception to the safe third country rule) can be returned to the US. The other option is to remove failed claimants to their country of origin.

This deportation process can happen extremely quickly after a negative decision. The risk of deportation exists for the first 12 months following a negative refugee claim or appeal. 

There is also a 12-month bar to filing a humanitarian & compassionate application (unless there are children or serious medical issues involved). 

These post-hearing risks are something that you must be aware of and forms part of an assessment we do as lawyers to properly advise our clients as to the best course of action. Again, this is what makes an initial consultation vital to the refugee process.

Refugees - Montreal - Dedicated Service Counter

In light of the influx of asylum seekers entering Canada (specifically into Quebec), IRCC has set up a "Dedicated Service Counter" in Montreal, open to the public from 8am to 4pm. This is meant to speed us eligibility interviews of newly arrived asylum seekers, which then allows claimants to apply for work permits while they await the adjudication of their asylum claim.

Details from the notice:

The dedicated service counter will allow claimants to get an earlier date for an eligibility interview which will also help them to have earlier access to work permits.  For this to happen, it is essential that each client completes the required application forms in full. Those requiring assistance with their application forms can get it at the dedicated service counter.

Help us Spread the Word

This counter is open to the public without appointment 7 days a week from 8am to 4pm and is located at:

Guy Favreau Complex, 200 René Lévesque Blvd West, suite 10, Montréal

We have prepared a handout in English, French and Creole with advice for asylum seekers on completing their forms. We have included it for your reference.

Immigration Appeal Division - National Post Article

by Peter Wong

The Immigration Appeal Division is an important tribunal that is integral to our immigration system.  It deals with cases where Canada Immigration has refused spousal sponsorships, parental sponsorships and permanent residents who may be removed from Canada for various issues including the meeting of residency requirements after becoming a permanent resident.  There is a current crises within the IAD as many members appointed by the previous government are not being renewed, and the current government has not yet appointed new members to replace the past members.  This National Post Article discusses this problem:

http://nationalpost.com/news/canada/western-canadas-immigration-appeal-system-in-crisis-lawyers-say/wcm/71bd83cf-4149-4b7d-9ee6-4fad16662560 

Crisis at the Immigration Appeal Division

Wait times for Family Class appeals in Calgary have been horribly long for many years but a new crisis is affecting the Immigration Appeal Division - there's no one trained to hear the cases! Take a read through what Peter Wong had to say on the issue as he sat down with CBC - click here for full article.

 

Credibility vs. Plausibility in Refugee Claims

I recently appeared before the Federal Court on a judicial review of a negative Refugee Appeal Division (RAD) decision. The claimant was a Cuban national accused of flouting Cuba's currency controls. 

The Applicant was self-represented at his refugee hearing before the Refugee Protection Division (RPD). As such, the corroborative evidence was far from idea. However, the RPD did find him to be detailed and consistent in his evidence. The RPD rejected the claimant's documents alleging they could not be independently verified to be authentic. However, the RPD made no actual efforts to verify the documents. The RPD also made a host of negative plausibility findings, which it said disposed of the claim in light of the lack of verifiable corroborative documents.

The claimant exercised his appeal rights to the RAD, which agreed that the RPD had no basis to find the claimant's documents to be fraudulent. However, the RAD simply dismissed the claimant's corroborative documents as "not helpful", without elaborating on why it was so. The RAD then adopted and affirmed the RPD's negative plausibility findings and rejected the appeal.

We then sought judicial review at the Federal Court. The crux of the argument was the difference between credibility findings and plausibility findings. The Courts have consistently held that plausibility findings must only be made in the clearest of cases. Justice Fothergill allowed the Judicial Review, finding that the RAD's negative plausibility findings were not reasonable, and had no basis in the evidence. 

The important take away from this one is to ask whether negative plausibility findings were reasonably made by a decision-maker. Simply because certain events may seem implausible in the Canadian context (or Western culture), does not render them impossible in countries like Cuba. 

The matter will now be returned to the RAD for a new decision to be made by a different Member. Now comes the task of putting forth any further evidence on the claimant's behalf and addressing the issues raised at first instance by the RPD and RAD.

Fulltext of the decision available here

Change to Age of Dependent Child to "under 22"

The Government just released Regulations amending the age of dependency from "under 19" to "under 22". However, the changes will not come into force until October 24, 2017. As such, any applications made until that date will continue to face the current definition of a child being "under 19". Nevertheless, this opens up opportunities for those who were unable to include children as dependants to sponsor those who might still be under the age of 22 when the Regulations take effect. 

The Full-Text of the Regulations can be found here.

Conditional Permanent Residence (PR) Repealed

Effective April 28, 2017, IRCC has repealed the Conditional Permanent Residence that affected sponsored spouses. This will affect the following individuals:

  • Permanent residents who have been issued a Confirmation of Permanent Residence (COPR) with a condition to cohabit with their sponsor for a period of two years and for whom the two-year period has not expired.
  • Permanent residents who are the subject of a report issued pursuant to subsection 44(1) of the Immigration and Refugee Protection Act (IRPA) for failing to comply with the requirement to cohabit with their sponsor for a period of two years, who have not yet been referred for an Admissibility Hearing at the Immigration Division (ID) of the Immigration and Refugee Board (IRB) pursuant to subsection A44(2) as well as those who have been referred but have not yet been issued a removal order.
  • Permanent residents who have been issued a removal order for failure to comply with the requirement to cohabit with their sponsor for a period of two years and have filed an appeal to the Immigration Appeal Division (IAD) of the IRB and for whom a decision has not been made on the appeal.

Although this provision has been repealed, be aware that IRCC still retains the ability to investigate possible fraudulent marriages under the misrepresentation provision of the Immigration and Refugee Protection Act that have always existed. 

The full text of the Operational Bulletin on Conditional PR can be found here.

Changes to application intake process for 2017 Parent and Grandparent Program

IRCC just released the following announcement on the changes to the Parent and Granparent sponsorship program. It appears that intake levels remain the same (10,000 applications), however the selection of those 10,000 will be by lottery. Starting in January 2017, those interested in sponsoring family must complete an online form indicating their interest. If they are among the 10,000 selected, they will be notified and given 90 days to submit their application.

The problem with a true lottery system is that an applicant may never be chosen, having applied year after year. This introduces significant uncertainty into this already restricted process. It remains to be seen how this pans out in reality...

Full text of the release here: http://news.gc.ca/web/article-en.do?nid=1168899 

No more 4-year cap for Foreign Workers

Immigration Refugees and Citizenship Canada announced today that, effective immediately, the 4-year cap on work permits for NOC B, C and D occupations no longer applies. The rule was first imposed in 2011 and resulted in an incredible amount of hardship on thousands of foreign workers who were subject to the bar.

Full text here: http://news.gc.ca/web/article-en.do?nid=1168949&tp=1

Humanitarian and Compassionate applications

A plea for humanitarian and compassionate relief can me used in a number of contexts where foreign nationals are otherwise unable to immigrate to Canada. It is often used to overcome otherwise insurmountable issues. These requests are highly technical and detailed.

Take a listen to this podcast that our very own Jean Munn, Q.C. did with fellow Alberta Immigration Lawyer Mark Holthe on this very topic! Jean officers tremendous insight into H&C applications. She and Mark talked about:

  1. Background information on H&C applications.
  2. Who is eligible and who is not eligible to apply – the typical scenario.
  3. What factors are taken into consideration and what factors cannot be considered.
  4. How to apply – including best practices.
  5. How to make the strongest application possible.
  6. Processing procedure.
  7. A ton of other tips and strategies essential for getting an H&C approved.

You can find the podcast here or list to it on  iTunes [Season 1 Episode 37].

If you need help with any admissibility issue, or wish to know if you can benefit from making an H&C application, do not delay in contacting us!

 

IRCC - Spousal Sponsorship Processing Times

News Release from IRCC today about faster processing for spousal sponsorships inside & outside Canada:

December 7, 2016 – Ottawa, ON – The Government of Canada is making it faster and easier for Canadians and permanent residents to reunite with their spouses.

At the direction of the Minister, earlier this year Immigration, Refugees and Citizenship Canada (IRCC) began a concerted effort to reduce processing times. From the start of 2016 to the fall, processing times were reduced by 15 percent for in-Canada applications and just over 10 percent for applications outside Canada.

Starting today, processing times will be reduced even further with most spousal applications now being processed in 12 months. Complex cases may require more time.

Applicants who already filed an application will not have to wait an additional 12 months to have them finalized. IRCC will continue to process applications in the order they have been received. Most families who have been waiting should have a decision on their sponsorship application no later than the end of December 2017.

These new changes are expected to benefit more than 64 000 applicants by the end of 2017, and are the latest measures to bring families together.

Full text here: http://bit.ly/2gUedPa

Expedited Refugee Claims

The Refugee Protection Division (RPD), which adjudicates refugee claims made in Canada, is permitted to designate certain countries for expedited processing. 

On December 1, 2016, the Acting Deputy Chairperson of the RPD designated Eritrea for expedited processing "to enable the RPD to meet its mandate of making refugee status determinations fairly and efficiently by accepting claims without a hearing in appropriate circumstances."

Syria and Iraq were previously designated for expedited processing.