The end of an era - the closure of CPC-Vegreville

by Rekha McNutt

If you have not already heard, the Case Processing Centre (CPC) in Vegreville, Alberta, is now closed. All applications that were previously processed at CPC-V will now be processed in nearby Edmonton, AB. It is vitally important to ensure your application is being submitted to the correct office. The consequences of not doing so could be catastrophic in terms of maintaining your status.

You can check the new mailing address information here.

As always, we are happy to assist with any immigration matters if you need! Just contact 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. 

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 

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 

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!

 

Orphaned Children Stuck in Immigration Limbo for 2 years

Children becoming suddenly orphaned is an epic tragedy all on its own. But, can you imaging those children having to wait alone in their home country for 2+ years in immigration limbo while IRCC processes their application to Canada? That is the very tragedy faced by two young children from Cameroon who have been adopted by their Canadian aunt, whose sponsorship of them has languished for the last two years at the visa office in Senegal.

Read their full story and hear from our own Peter Wong on the reasons why such delays happen - http://www.cbc.ca/news/canada/calgary/orphaned-african-children-caroline-ijang-cameroon-1.3597689

Humanitarian and Compassionate (H&C) Applications

by Rekha McNutt

A Humanitarian and Compassionate application is often the only option someone has of remaining in Canada. In recent years, IRCC (Immigration, Refugees and Citizenship Canada) has severely restricted the scope of what can be considered in such applications. The threshold of proof had risen dramatically and was virtually impossible to meet. Officers were applying the hardship test ("unusual and undeserved, or disproportionate hardship") as a means to find ways to deny applications. 

In December 2015, the Supreme Court of Canada released a very important decision called Kanthasamy. The Judgement very strongly condemned the use of the hardship test as a means of assessing hardship, and instructed officers to look at all the evidence before them with a humanitarian and compassionate mind. 

Happily, IRCC has updated their Program Delivery Instructions (PDIs) to reflect the jurisprudence from Kanthasamy, and eliminated the hardship test altogether:

Update to guidance on humanitarian and compassionate consideration
Summary
The December 2015 decision of the Supreme Court of Canada (SCC) in Kanthasamy v. Canada (Citizenship and Immigration) affects how humanitarian and compassionate (H&C) requests under subsection 25(1) of the Immigration and Refugee Protection Act are assessed. The SCC found, in particular, that the unusual and undeserved or disproportionate hardship test improperly restricts the discretion of decision makers. As a result of the SCC decision,the hardship test is no longer to be used. The instructions regarding H&C assessments have been updated to reflect the Kanthasamy decision.
Updated instructions

It remains to be seen how Officers will now interpret this decision and these new PDIs in assessing H&C applications. Here's to hoping that compassion returns to H&Cs once again!

H&C Applications and the SCC in Kanthasamy

By Rekha McNutt

In December 2015, the Supreme Court of Canada ("SCC") released a very important decision on how Immigration Officers are supposed to evaluate cases in humanitarian and compassionate (H&C) applications. H&C applications are usually filed by individuals in Canada who do not have any other way of immigrating or remaining in Canada, and often face tremendous hardships of having to return to their home country. An H&C application is the last hope for many individuals and families. 

In recent years, Officers have been routinely refusing applications when applicants face hardships in their country that is universally felt by everyone living in that country. As a result, even if the conditions in a particular country are deplorable, the applicants were being refused because the hardship felt too broadly by others living there.

Officers also limited their analysis to hardship that met the threshold of "unusual and undeserved" or "disproportionate". These terms are not found anywhere in the Immigration and Refugee Protection Act ("IRPA") or Regulations.  

This is why the SCC's decision in Kanthasamy is so important. Canada's highest court has provided very clear jurisprudence on how Immigration Officers are to evaluate H&C applications. Here are some excerpts from the decision that are particularly helpful.

The Court held that it was inappropriate to rely on the words “unusual and undeserved or disproportionate” as creating distinct thresholds for relief:

[33]      The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1).  As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

The SCC held that a segmented approach to assessing humanitarian applications was inappropriate. The Court also held that the terms “unusual and undeserved or disproportionate” appeared nowhere in the legislation, and that it was inappropriate to strictly rely on those terms to discount the overall hardship to an applicant:

[45]      Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy that threshold.  Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion and rendering her decision unreasonable.

The SCC held that it was an error to dismiss evidence of hardship simply because there is no evidence that an applicant is being personally targeted:

[53]      This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633 (CanLII).
[54]      Here, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, 2013 SCC 5 (CanLII), [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38. [emphasis added]

Finally, the SCC held that applicants need only show that they would likely be affected by adverse country conditions:

[56]      As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences.  Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714 (CanLII):
While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return . . . . This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 (CanLII)]

The Court also provided guidance on how the best interests of children (an important factor to be given significant weight in an H&C application) is to be treated:

[35]      The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 (CanLII), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 S.C.R. 27, at para. 20.  It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 (CanLII), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.
[36]      Protecting children through the “best interests of the child” principle is widely understood and accepted in Canada’s legal system: A.B. v. Bragg Communications Inc., 2012 SCC 46 (CanLII), [2012] 2 S.C.R. 567, at para. 17.  It means “[d]eciding what . . .  appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention”: MacGyver v. Richards (1995), 1995 CanLII 8886 (ON CA), 22 O.R. (3d) 481 (C.A.), at p. 489.
[37]      International human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71.  Article 3(1) of the Convention in particular confirms the primacy of the best interests principle:
In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
[38]      Even before it was expressly included in s. 25(1), this Court in Baker identified the “best interests” principle as an “important” part of the evaluation of humanitarian and compassionate grounds.  As this Court said in Baker:
. . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . .
. . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them.  That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian and compassionate] claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [paras. 74-75]
[41]      It is difficult to see how a child can be more “directly affected” than where he or she is the applicant.  In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual or undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), 2010 FC 149 (CanLII), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009.

It remains to be seen how CIC (or now IRCC) will interpret this jurisprudence in assessing H&C applications. I suspect refusals will continue and that we will see further guidance from the Federal Court on judicial review. 

Express Entry Tips

By Peter Wong, QC

Having now seen the process in action for the past 12 months I would like to provide some advice and direction to those persons who are looking to file applications under Express Entry.  This advice is not intended to be exhaustive but hopefully will be helpful to those persons who are looking to improve their chances of being successful in the system.  Overall, it has proven to be a very unforgiving system whereby any errors or omissions at both the profile stage or second stage processing can result in an instant rejection with little recourse for complaint.  The only real alternative after a rejection letter is to resubmit a new profile and hope that a new invitation is issued.  Rejection letters do indicate that profile information is kept for a period of 60 days from the date of the letter, but it is entirely unclear whether that would result in a new invitation unless the profile was amended or somehow repopulated with new information. 

Tip 1

Do not submit your Express Entry profile until you are ready to submit the remaining documentation within 60 days.  This is the most important single piece of advice that I can provide as the problem that most applicants encounter is the 60 day deadline for documentation to be submitted after the Invitation letter has been issued.  Problematic documents include educational assessments, police certificates, and sometimes medical reports, passports, marriage certificates, birth certificates and reference letters.  This last aspect of not having reference letters that support Federal Skilled Worker applications can result in rejections at the second stage of processing.  The lack of police certificates, or having the wrong type of police certificates are fatal to many applications that are otherwise perfect.  The reverse aspect of this tip is to submit your Express Entry profile so that your work permit and the underlying LMIA does not expire before you get a chance to submit all of your relevant documentation within the 60 day period.  In other words, if you qualify at the time of the invitation, but not at the time that they stage 2 documentation is submitted than you have the opposite problem of a material change in the circumstances between the time of the invitation and the time of the application being locked in (after stage 2 documentation has been uploaded).  If you have a time frame issue, then best to get your EE profile and your stage 2 documentation ready to go at the same time, so that if you get the invitation you are then able to turn around and file your necessary documentation immediately. 

Tip 2

The Express Entry system chooses the category that you qualify under; you do not get to choose which category that you qualify under.  Express Entry basically covers 4 economic classes, including Federal Skilled Worker, Federal Skilled Trade, Canadian Experience Class, and certain provincial nominations.  It is important to understand that the system chooses which Class you fall under. So, you might qualify under both Federal Skilled Worker and Canadian Experience Classes, but the Invitation Letter will only be issued under a single category regardless of how many categories you may qualify under.  This is the most important aspect of the Invitation Letter as the category that you are chosen under dictates what you require as far as stage 2 documentation.  For example, for Federal Skilled Worker, reference letters from past employers are crucial to the successful of the application at the second stage as you must be able to prove your work experience under the main duties for relevant skilled work experience.  Also, if points are assessed under the Educational Factors for post secondary education not taken in Canada, then the lack of a WES educational assessment is fatal to the processing at the second stage if it under Federal Skilled Worker.  The key point to understand in this tip is that once you are selected by the Invitation Letter then all of your documentation must be completed with that selection in mind.  It is a common mistake in cases that I have reviewed that one category is set out in the Invitation letter and the documentation is geared towards what the applicant wanted to be categorized under. 

Tip 3

Experience letters do matter, particular for Federal Skilled Worker Class.  If you are selected under the Federal Skilled Worker category, make sure that all supporting relevant work experience letters contain the essential elements that are required for such reference letters.  They must be from the employer, on letterhead, signed and dated.  The dates of employment, job title and salary information are all part of such letters.  The most important aspect that is commonly missed is that the main duties of the position, as described under the National Occupation Classification, are not properly described in many reference letters.  This is a common problem that will end up in refusal if the work experience that is described is not sufficient, or describes another occupation.  Further, it is not a good idea that the descriptions simply just parrot the NOC description as it must be an accurate description of the duties undertaken.  This factor is likely the single biggest reason for failures of applications at stage 2 processing. 

Tip 4

Proving work experience in a skilled position in Canada is essential for the Canadian Experience Class. For CEC applications the main documentation that needs to be provided relate to the hours of employment that have taken place over the course of one year.  The minimum requirement for hours is 1560 over a course of 12 months.  This can be a combination of full and part time, but it cannot be done in less than 52 weeks, nor can any week have less than 30 hours per week in the 52 weeks proven.  Nor can any of those hours be for unskilled or semiskilled work that is not classified under A, B or 0 NOC categories.  Do not apply if you are thinking that you qualify, until you have the requisite minimum number of hours (1560 hours) and the requisite number of weeks (52).  Proof of such hours may be accomplished through a combination of employment reference letters, pay stubs and tax records (T4).  If you are missing some of this documentation you may have difficulty proving that you qualify under this category and could be refused at the second stage, so better to have this documentation ready and available to prove that you qualify. 

Tip 5

Labour Market Impact Assessments ("LMIA") for permanent residence are a viable way to improve chances. Many people are unaware that there are 2 types of LMIA applications.  One is for temporary work status and the other is for supporting permanent residence applications, that would not assist in continuing foreign work employment in Canada, but would provide 600 points for Express Entry.  LMIA applications for permanent residence purposes do not have application fees attached to them such as foreign worker LMIAs ($1,000).  Permanent residence LMIAs are processed in a completely different unit than foreign worker applications and do not require transitional plans which are often a lot of effort for employers.  There are still advertising requirements for permanent residence LMIAs but in general terms this type of LMIA may be easier to get than foreign worker ones depending on the current market conditions of the area in which the foreign worker authorization is being sought.  At the very least, with the lack of an application fee, these may be more attractive for any employer willing to assist in supporting a permanent residence application. 

Tip 6

Expired Police Certificates, or ones that cover a limited time period should not be used. Careful attention needs to be paid to what police certificates are submitted for stage 2 processing.  If you are still resident in the country where the police certificate is obtained from then police certificates expire within 6 months.  If not, they do not expire!  Police certificates must be carefully reviewed to determine their validity and whether they are required for the application.  If they are not available at the time of stage 2 processing, then a letter must be uploaded in their place indicating when they will be available along with proof that they have been applied for.  The best advice is to apply for them in advance of the EE profile being uploaded to avoid the possibility of the Police Certificates not being available.  If they are in foreign languages proper translators certificates need to be available. 

Tip 7

Educational Assessments for foreign degrees and diplomas should be obtained in advance. Not every EE invitation requires that you upload foreign education credential assessment, but where they are required, be aware that they generally take more than 60 days to obtain.  The basic method of obtaining such assessment involves the foreign institution providing transcripts directly to the accredited assessment agency.  If they provide the proper documentation than a letter will be issued by the Educational Assessment Agency that is recognized by Canada Immigration.  The process can vary from several weeks to several months. 

Tip 8

English and French language requirements cannot be mixed and matched between language test marks. You can only use one test that is not older than 2 years.  That 2 year period runs from the date of the testing, not the date of the marks coming out.  If it expires between the time of the invitation and the time of the second stage documentation being submitted then you will be required to retake the test, and submit new results, otherwise the application will be rejected.

Canadian Caregiver Program Overhauled

Written by: Rekha McNutt

Citizenship and Immigration Canada (“CIC”) recently announced major changes to the (former) Live-in Caregiver program. The former program has now been split into 2 distinct streams:

  1. Caring for Children Class
  2. Caring For People With High Medical Needs Class

These 2 new economic immigration classes will allow those who have Canadian work experience in caring for children or for individuals with high medical needs to apply for permanent residence.

Caring for Children Class

The biggest changed this program is the removal of the “live-in” requirement for caregivers. The program allows anyone who worked full-time in the care of children to apply for permanent residence.

The program requirements are as follows:

  • Work experience:
    • within the 4 years before the date of the application, have at least 2 years of full-time work experience in Canada as a home child care provider
    • That the job duties meet the specifications outlined in unit group 4411 of the National Occupation Classification (NOC)
  • Language proficiency:
    • achieve a minimum score of Canadian Language Benchmark (CLB) 5 in either official language. This minimum score is required for each of the four skill areas (reading, writing, listening, speaking)
    • Complete official language test (IELTS or CELPIP for English)
  • Educational credentials:
    • a Canadian educational credential of at least one year of post-secondary studies; or
    • foreign diploma, certificate or credential, along with an equivalency assessment (issued within the last 5 years), which indicates that the foreign diploma, certificate or credential is equivalent to a Canadian educational credential of at least one year of post-secondary studies

Caring For People With High Medical Needs Class:

Previously, those who cared for individuals with high medical needs also applied under the live-in caregiver program. This new Class expands on the types of individuals who can now apply for permanent residence in Canada.

The requirements of this program are:

  • Work experience:
    • in the 4 years preceding the date of the application, have at least 2 years of full-time work experience in one of the following occupations:
      • as a registered nurse or registered psychiatric nurse – NOC 3012
      • a licensed practical nurse – NOC 3233
      • a nurse’s aide, orderly or patient service associate – NOC 3413
      • a home support worker or related occupation, but not a housekeeper – NOC 4412 
    • any licensing requirements of the above occupations must be met
  • Language proficiency:
    • if applying as a registered nurse or registered psychiatrists (NOC 3012), a minimum of CLB 7 is required; and
    • if applying in one of the other 3 listed occupations (NOC 3233, 3413, or 4412), a minimum of CLB 5 is required
  • Educational credentials:
    • a Canadian educational credential of at least one year of post-secondary studies; or
    • foreign diploma, certificate or credential, along with an equivalency assessment (issued within the last 5 years), which indicates that the foreign diploma, certificate or credential is equivalent to a Canadian educational credential of at least one year of post-secondary studies

Although applications under the old live-in caregiver class are still being accepted, they must be accompanied by proof that the original live-in caregiver work permit was issued pursuant to a Labour market impact assessment (LMIA), prior to November 29, 2014. Those were able to demonstrate this may still apply under the old program, which would be processed according to the old criteria.