Habeas Corpus and Immigration Detentions - Case Comment: Canada (Public Safety and Emergency Preparedness) v. Chhina

Habeas Corpus and Immigration Detentions - Case Comment: Canada (Public Safety and Emergency Preparedness) v. Chhina

On May 10, 2019, Canada’s highest court released its decision in Chhina, which addressed the availability of habeas corpus to individuals in immigration detention. Habeas corpus is a writ requiring a person under arrest to be brought before the court to secure a person’s release, unless lawful grounds are shown for their detention. 

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Family sponsorship and exclusion from the Family Class - the "117(9)(d) problem"

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by Rekha McNutt

The topic of this post is something that I encounter much more frequently than I would hope. Having just spent the day working on this exact problem, I thought it would be useful to publish this post.

Here is the typical scenario:

A person comes to Canada to work or study, and then applies for permanent residence as most tend to do. When they first come, they are single and have no children. But things change. Usually, the change involves going back home on a holiday and coming back having married somebody. This all happens while they have an application for permanent residence in process. Not wanting to delay their own application, they decide (whether on their own or through well-meaning but misinformed family/friends) not to advise Immigration Refugees and Citizenship Canada (IRCC) about that very significant change. They get their own permanent residence, then try to sponsor their spouse, and are told they cannot.

In this type of scenario, not only is the sponsor prevented from bringing their family to Canada, they also face very serious risk of losing their own permanent residency on grounds of misrepresentation. The topic of misrepresentation deserves its own post, but take away from this article that the consequences can be grave to everyone involved.

Our law says that all “family members” of a person integrating to Canada must be “examined” before that person is granted permanent residence, whether they are accompanying or not. A family member includes the person’s:

  • spouse or common-law partner

  • dependent children

  • spouse or partner’s dependent children

  • children’s dependent children

The “examination” of family members typically involves an assessment of their admissibility, namely medical, criminal, and security reviews. By not declaring a family member, a person who is applying for permanent residence is denying IRCC the opportunity to examine that family member and determine whether they are admissible to Canada. This is critical because an inadmissible family member, whether they are accompanying or non-accompanying, can render the principal applicant inadmissible as well. As such, by not declaring their family member, the principal applicant may have gained permanent residency when they should not have.

In order to deal with this non-disclosure, our Regulations contain a very harsh provision which prevents such a person from ever being able to sponsor the family members that he or she failed to declare before getting permanent residence. We call this the “117(9)(d) problem” because that is a section of our Regulations which contains this harsh provision:

117 (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if

(d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined.

In essence, a family member who was not “examined” is not considered to be part of the sponsor’s “family class”, and therefore not somebody who can be sponsored.

The only way to overcome this lifetime ban on sponsoring that family member is to seek relief on humanitarian and compassionate (H & C) grounds. H & C applications consist of very complex legal submissions that are tailored for every client’s specific situation. Every situation is unique and requires diligence, care, and attention. These applications are difficult to succeed on because they are very discretionary. As such, it is imperative that a compelling case be presented from the outset.

There are number of factors which could be a play depending on the circumstances. Some typical factors include:

  • the reasons for nondisclosure

  • whether the sponsor actually gained an advantage by not declaring their family member

  • the sponsors establishment in Canada

  • the conditions in the country where the sponsored person lives, and the associated hardships

  • the hardships of separating family members

  • the best interests of any children who are affected by the situation

If a Visa Officer determines that sufficient H & C grounds exist, he can allow the sponsorship despite the application of 117(9)(d). In that case, the overseas family member is allowed to immigrate to Canada.

Usually when a sponsorship is refused, the sponsor can appeal that refusal to the Immigration Appeal Division (“IAD”). The IAD usually has H & C jurisdiction, but only in situations where the sponsor person is a member of the sponsor’s “family class”. In 117(9)(d) situations, where the person being sponsor was not examined at the time that the sponsor was granted permanent residence, there is no membership in the Family Class, and therefore no H & C jurisdiction before the IAD. Therefore, robust submissions must be made directly to the Visa office, and in the event of a refusal, the only possible way to challenge such a refusal as before the Federal Court.

If this is a problem you are facing, please contact me for help and support to achieve a positive outcome in your case.

Asylum Seekers Tool Kit

The Canadian Bar Association, Immigration Law Section, has put together a resource for navigating the Canadian refugee system. The Toolkit provides brief, high-level guidance on Canadian refugee law and procedure, and other options for legally entering the country. The Toolkit breaks down the exceptions to the Safe Third-Country Agreement, talks about inland protection claims, and explains the refugee determination process. 

You can access the Toolkit here

The Refugee process is a very complex and legally challenging. It is important to understand whether your situation makes you a "refugee". Seek legal assistance early before embarking on this path. As always, we are happy to provide that assistance. Contact one of our lawyers for a consultation appointment if you are thinking about seeking asylum. 

 

Increased intake to Parents and Grandparents Sponsorships in 2019

by Rekha McNutt

Immigration, Refugees and Citizenship Canada announced today that they have increased the number of applications that will be accepted for processing under the Parent and Grandparent sponsorship program. Starting in 2019, the government will accept 20,000 applications! 

You can read the full release here.

As always, we are happy to assist you with any questions you may have with respect to this or other immigration matters! Feel free to reach out to us.

AINP - Alberta Opportunities Stream

by Peter Wong, Q.C.

On June 14th, 2018, the long awaited changes to the AINP programs came into place. Existing applications submitted under previous streams will be processed under those previous streams will continue to be processed without regard to the new Opportunity program requirements.  Further, existing applicants are not permitted to file a new application under the Opportunity Stream without withdrawing their application in process.  Applicants who were contemplating filing applications under any of the previous streams are no longer able to as the only remaining programs are the Opportunity Stream, the Self Employed Farmer Stream and a new Express Entry Stream.  The Opportunity Stream will be the bulk of new applications. 

The Opportunity Stream has some significant differences from the Employer Driven, Post Graduate and International Graduate Streams which comprised the bulk of the previous applications.  These differences include the following:

  1. A language requirement which requires all applicants to submit language test results and currently meet at least Canadian Language Benchmark 4 on all categories.  Higher requirements will be phased in over the next couple of years, with the next increase in language benchmark to 5 on June 14th, 2019.
  2. A high school graduation requirement that will be phased in from the current requirement of high school graduation at the level of the home country to Alberta standards requirement.
  3. Minimum annual income requirements that set basic minimum gross annual income based on size of family.
  4. Minimum period of time worked in Alberta (12 months) or alternatively 24 months of proven experience outside of Canada in the occupation for which a bona fide job offer has been provided.
  5. There are different requirements for post graduate work permit holders, including a 6 month requirement for minimum requirement for work in Alberta, graduation from an Alberta post-secondary learning institution that is listed in the program requirements, and specifically within particular programs that are also listed for one and two year certificates and diplomas. 

This list of changes is not exhaustive, but gives an idea of some of the significant additional requirements that have been added to the AINP that did not exist under previous streams.  For detailed information, best to consult with an expert, or refer directly to the AINP website.

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