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.

 

Duration of WP to be issued at POE

Many foreign workers apply for work permits based on positive LMIAs (Labour Market Impact Assessment). The LMIA must be 'used' to apply for a work permit abroad before it expires. an LMIA is typically valid for 6 months. 

The LMIA will also provide details on the 'duration of employment'. A Visa Officer is instructed to issue the work permit (if the application is approved) to encompass the full 'duration of employment' contemplated by the LMIA. If an officer approves a work permit application, a "letter of introduction" is provided, which the applicant presents to a POE (port of entry) officer, who in turn issues the actual work permit.

A couple of questions arise from these principles:

  1. if some time elapses (weeks or months) between the LMIA being approved and the work permit being approved, how long will the work permit be issued for?
  2. if further time passes between the visa office approving the work permit, and the foreign national arriving at the POE to be issued that work permit, how long must the POE officer issue the work permit for?

The answers are provided for by IRCC here: http://www.cic.gc.ca/english/resources/tools/temp/work/opinion/duration.asp

In essence, Visa Officers approve work permits for the full duration approved by the LMIA, starting from the date of approval. 

POE officers are similarly instructed to issue WPs for for full duration authorised by the LMIA, from the date the foreign national arrives at the POE.

The Example provided by IRCC to illustrate this is:

Abroad
The applicant received an LMIA with a Valid to date of December 31, 2015, for a Duration of employment of 24 months. The work permit application must be received on or before December 31, 2015. If the work permit application is received on August 1, 2015, and the visa officer makes the final decision to approve on August 31, 2015, the final duration of the work permit is August 30, 2017 (24 months after the date of approval). Since several months have passed since the approval of the LMIA, the visa officer may enter the remark to issue the work permit for 24 months from the date of entry.
At ports of entry
The applicant arrives at a port of entry on December 30, 2015, and has a passport valid for three years. The border services officer issues the work permit from the date of entry in Canada to December 29, 2017 (the 24 months provided in the Duration field).

IRCC instructions also specify to POE officers that WPs for longer rather than shorter duration should be issued:

Note: Providing the requirements are met, officers should issue work permits for a longer rather than a shorter duration. Where there is no reason to limit duration, officers should issue the work permit for the complete expected duration of the employment. It is in both the Department’s and the applicant’s best interests to minimize the number of extensions to be processed.

New Operational Bulletin for certain students refused their post-grad WPs

On September 27, 2016, Minister John McCallum established a public policy to facilitate the issuance of three-year open work permits, the restoration of Temporary Resident status and waive related fees for a group of former international students who were denied Post-Graduation Work Permits between September 1, 2014 and March 15, 2016 because they completed the majority of their coursework by distance learning in their final program of study.

To be eligible for consideration under the public policy, applications for a fee-exempt three-year open work permit (from inside or outside of Canada) and applications for restoration of status (if applicable) must be made by March 17, 2017.

For full details, OB 631 can be found here: http://www.cic.gc.ca/english/resources/manuals/bulletins/2016/ob631.asp

Temporary Suspension of Removals to Haiti

Message from CBSA

As a result of Hurricane Matthew in Haiti, please be advised that an Administrative Deferral of Removal (ADR) is immediately imposed to that country pursuant to section 230 of the Immigration and Refugee Protection Regulations. All removals to Haiti are temporarily deferred except for the removal of persons who are:

  • inadmissible under subsection 34(1) of the Act on security grounds;
  • inadmissible under subsection 35(1) of the Act on grounds of violating human or international rights;
  • inadmissible under subsection 36(1) of the Act on grounds of serious criminality or under subsection 36(2) of the Act on grounds of criminality;
  • inadmissible under subsection 37(1) of the Act on grounds of organized criminality;
  • referred to in section F of Article 1 of the 1951 United Nations Refugee Convention;
  • consenting to their removal.

Any other exceptional removal cases should be referred to NHQ, Operations Branch, Enforcement and Intelligence Operations Directorate, Removal Operations, for an individual assessment.

Application refused? Can the Federal Court help?

It can be very frustrating, not to mention puzzling, when an immigration application is refused. Whether that application is for a temporary visa (to visit, study or work in Canada), to permanently immigrate, or a hearing gone wrong, the question is what can be done about it. The answer may be a Judicial Review ("JR") application to the Federal Court. 

Rekha McNutt recently "sat down" (ie. Skyped) with a fellow Immigration Lawyer, Mark Holthe, to talk about the JR process and what it all means. 

Take a listen to the Podcast that resulted from Rekha's conversation with Mark. You can also access it on iTunes.

If you have had your application refused, contact us immediately for advice on what to do. 

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!

Bill C-24 on Citizenship

By Rekha McNutt

Immigration Minister John McCallum announced yesterday that portions of Bill C-24 would be repealed in the coming days. One of the most controversial provision in this Bill was the revocation of citizenship for dual citizens convicted of certain very serious criminal offences (eg. Terrorism). It created two classes of Canadian citizens. Other big changes made under Billl C-24 included expanding the ages of applicants who had to take the language and knowledge test, and increasing the number of years required to qualify for Citizenship.

Details of exactly what provisions are being appealed will become clear in the following few days.

Click HERE for CIC's news release.

 

Pre-Removal Risk Assessments (PRRA)

By Rekha McNutt

As the new year begins, the Canada Border Services Agency (CBSA) in Calgary (and we hear elsewhere) has been very busy in issuing PRRA notices. This is a crucial step in the removals process and it is therefore very important to understand your rights and responsibilities in this regard.

A PRRA is the final risk assessment given to an individual before they are deported back to their country. Not everyone is eligible for a PRRA, but if you are, pay close attention to the deadlines provided. If you are eligible for a PRRA, your removal from Canada is "Stayed" (ie. paused) until such time as a negative decision is made on your PRRA.

We are told that approximately 500 PRRA call-in notices have been issued in Calgary alone! A call-in notice simply requires you to attend at a CBSA office to be given a piece of paper which allows you to file your PRRA application. The process is straightforward. Thereafter, you have 15 days to file your PRRA forms.  If you fail to file your forms in time, you no longer benefit from a Stay of your deportation, and can be removed at any time. 

Once forms are sent in, you will have another 15 days to send any submissions on the risks you face in your country. Those submissions can be updated during the PRRA process. 

Ultimately, to succeed on a PRRA, you must demonstrate you face refugee-like risk. As such, general adverse country conditions will not be enough. However, even if you do not believe you will succeed on the PRRA, filing it may still be important, especially if you happen to have other applications (such as a humanitarian and compassionate application) currently in queue for processing. 

So, if you have been served with PRRA, or have an appointment coming up, don't panic! But do get good legal advice on your rights and responsibilities in Canada.

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. 

CIC Processing Times

As of today, CIC has updated its application processing times. Unfortunately, the new system lumps together many different types of applications, which does not provide any accurate information about how much time your application will actually take. For example, all 'outside Canada" sponsorships of spouses is lumped into one time estimate, regardless of which visa office is processing the application. Historically, there has been a great variance in processing times from one visa office to another. The "real-life" impact of this will be to allow the Call Centre to refuse to answer any questions on the status of an application if this minimum has not passed.

Here is the link: http://www.cic.gc.ca/english/information/times/index.asp

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.

1F(b) - Exclusion from Refugee Protection

By: Rekha McNutt

The Supreme Court of Canada (SCC) recently released a decision on the interpretation of Article 1F(b) of the Convention Relating to the Status of Refugees ("Refugee Convention"). The case is Febles v. Canada (Citizenship and Immigration), 2014 SCC 68.

Facts:

This case involved a refugee claimant from Cuba. He had previously been granted refugee status in the United States. While living in the US, the Applicant was convicted and served time in jail for two assaults with a deadly weapon. The US therefore revoked his refugee status and issued a removal warrant.

The Applicant then came to Canada, and made a refugee claim.

Issue:

The only issue in this case was whether Article 1F(b) of the Refugee Convention (adopted into our immigration law under s.98 of the Immigration and Refugee Protection Act - "IRPA") barred the Applicant from refugee protection because of his past crimes.

Decision:

Article 1F(b) of the Refugee Convention reads:

F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;

In the past, courts had at times interpreted this section to be limited in application to those who were fugitives from justice, and not those who had served their sentence. The Applicant in this case attempted to argue that, because he had in fact completed his sentence (and therefore not a fugitive), he should not be excluded from protection under Article 1F(b).

The SCC disagreed. Relevant portions of the Court's decision, as written by McLaughlin C.J. are reproduced here (highlighting mine):

[14]                          Despite its facial clarity, the meaning of the phrase “has committed a serious non-political crime” is the subject of debate by courts and academic writers.  While there are many variations of these debates, the main issue in the present case is whether “has committed a serious . . . crime” is confined to matters relating to the crime committed, or should be read as also referring to matters or events after the commission of the crime, such as whether the claimant is a fugitive from justice or is unmeritorious or dangerous at the time of the application for refugee protection.  If Article 1F(b) is read as including consideration of matters occurring after the commission of the crime, people who have committed a serious crime in the past may nevertheless qualify as refugees because they have served their sentence or because of redeeming conduct subsequent to the crime.
[15]                      ... lead me to conclude that the phrase “has committed a serious . . . crime” refers to the crime at the time it was committed.  Article 1F(b), in excluding from refugee protection people who have committed serious crimes in the past, does not exempt from this exclusion persons who are not fugitives from justice, or because of their rehabilitation, expiation or non-dangerousness at the time they claim refugee protection
... 
[22]                          I agree.  I cannot accept Mr. Febles’ argument that Articles 1F(a) and 1F(c) support the view that the exclusion from refugee protection under Article 1F(b) is confined to fugitives.  There is nothing in the wording of these provisions or in the jurisprudence to support this contention...
... 
[35]                          I cannot accept the arguments of Mr. Febles and the UNHCR on the purposes of Article 1F(b).  I conclude that Article 1F(b) serves one main purpose — to exclude persons who have committed a serious crime.  This exclusion is central to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to start new lives in other countries and protecting the interests of receiving countries.  Article 1F(b) is not directed solely at fugitives and neither is it directed solely at some subset of serious criminals who are undeserving at the time of the refugee application.  Rather, in excluding all claimants who have committed serious non‑political crimes, Article 1F(b) expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.
... 
(6)         Conclusion on the Scope of Article 1F(b)
[60]                          Article 1F(b) excludes anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.  Its application is not limited to fugitives, and neither is the seriousness of the crime to be balanced against factors extraneous to the crime such as present or future danger to the host society or post-crime rehabilitation or expiation.

The SCC then went on to discuss how to assess the seriousness of a crime. Historically, Canada has considered a crime "serious" if the same crime in Canada is possibly (not actually) punishable by a period of imprisonment of at least 10 years. On this issue, the Court stated:

[62]                          The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17150 (FCA), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious.  I agree.  However, this generalization should not be understood as a rigid presumption that is impossible to rebut.  Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded.  Article 1F(b) is designed to exclude only those whose crimes are serious.  The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (G. S. Goodwin-Gill, The Refugee in International Law (3rd ed. 2007), at p. 179).  These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case.  While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner.

Justices Abella and Cromwell dissented, with reasons.