Immigration Terms & Requirements in Canada PDF

Understanding common immigration terms Foreign National (FN) is a person who is not a Canadian Citizen or a Permanent Resident of Canada, and includes a stateless person. (s.2 IRPA) A Temporary Resident (TR) is a foreign national who is authorized to enter and remain in Canada for a...

Understanding common immigration terms Foreign National (FN) is a person who is not a Canadian Citizen or a Permanent Resident of Canada, and includes a stateless person. (s.2 IRPA) A Temporary Resident (TR) is a foreign national who is authorized to enter and remain in Canada for a limited period. (s.22 IRPA) A Temporary Resident Visa (TRV) allows a foreign national to enter Canada (admission to Canada). (s.180 IRPR) An Electronic Travel Authorization (eTA) allows non-Visa required nationals to fly to Canada. (Note that there are exceptions, i.e. US Citizens.) A Visitor Record (VR) is issued if, upon examination, an officer decides to permit a foreign national to remain in Canada. It is issued for a fixed period of time, at the discretion of the officer. A Permanent Resident is a person who has submitted an application for permanent resident status and has officially been granted the status by an Officer. A PR is a person who has legally immigrated to Canada but is not yet a Canadian Citizen. (section 21(1) IRPA and s 46 IRPA) 4.1.1 Temporary Resident Visa (TRV) vs. Visitor Record (VR) Foreign nationals (FN) are allowed into Canada as temporary residents if an officer is satisfied that they: 1) have applied for that status 2) have met the eligibility requirements, and 3) are not inadmissible You have already learned about the difference between a visa and a permit, but… Documents for temporary residence - Bank statement, evidence of employment, invitation What’s the difference between a visitor visa and a visitor record? Visitor record is used to extend your stay (more then 6 months) - You can do this at the border at port of entry - Or after staying if u want to extend it - Border services and immigration refugees and citizenship canada can do this  - Visitor record includes expiry date and is independent paper not in passport - Visit visa has a date of arrival and is put in passport - Fee for ETV is $7 and visitor visa(TRV) is 100$ (per person/single or multiple entry, 500$ max for family) TRV: Can be applied online or paper Has different “country specific” requirements Other than admissibility, an officer must assess whether the applicant will leave Canada at the end of their authorized stay - Strong ties in home - Personal history to show law abiding - Valid passport - Funds sufficient - Length of stay - Purpose of visit Burden of proof rests on the applicant/FN to demonstrate that they will comply with the IRPA Temporary Resident Visa (TRV) allows a person to enter Canada as a Temporary Resident and stay up to six (6) months, unless otherwise indicated by a CBSA Officer Nationality of the Foreign Nationals (FN) It is easy to locate on the IRCC website the entry requirements by country/territory. Please review the Entry requirements by country/territory and notice that citizens of some countries require a visa while others do not. Some persons require an eTA while others do not. Do any of these requirements or exemptions surprise you? Helpful hint on determining entry requirements Ask yourself: is the FN from a visa-required country? (See: s. 190 IRPR) No – then the FN is allowed entry to Canada as a temporary resident by privilege but may need to obtain an eTA. Yes – then the FN needs a TRV in order to enter Canada. Requirements for entry to Canada If a PR of Canada: - Valid passport and valid PR Card; or - Valid passport and valid permanent resident travel document approval from IRCC (if entering by air) or other documentation to demonstrate compliance with A28 if entering Canada by land If a FN seeking entry to Canada: - Valid passport + valid eTA; - or Valid passport + TRV; - or If US Citizen, valid passport 4.1.1 Khatoon v. Canada Electronic Travel Authorization (eTA) Review this IRCC overview about the requirement for an eTA, which covers what an eTA is, who needs it, and how to apply for it. This is for general background information only; there is no need to focus on anything specific. - eTA is only needed if the person would like to fly into Canada. TRV application Go to the IRCC website and locate the TRV application instructions (also sometimes called a "visitor visa"). Notice that a TRV can be applied for online or on paper Notice that there are "country specific" requirements, which means the required documents and application forms can vary depending on the country of the applicant's nationality Based on what you've read, what is the fee for a single-entry TRV application and how would you pay for it? 100$ for an individual - single or multiple entries What will the officer consider when assessing a TRV application? Other than admissibility, an officer must assess whether the applicant will leave Canada at the end of their authorised stay. (See section 179(b) of IRPR) This assessment can include many factors, such as: Does the FN have sufficient ties to their home country to motivate them to return home after visiting Canada? Personal history – pattern of employment, immigration history, previous travel, etc. - does it seem like this applicant is law-abiding and has shown trustworthiness in past travels? Do they seem to have stability in their home country? Does the FN have a valid passport or travel document that allows their readmission to the country that issued it? (S.52 and s.183(2)(c) IRPR) Does the FN have sufficient funds to support their stay in Canada? (s.183(2)(a) IRPR) How long does the FN want to stay in Canada? (s.183(2)(b) IRPR) Why is the FN seeking entry to Canada? (Purpose of visit to Canada – does the purpose for the visit seem logical and bona fide?) NOTE: Burden of proof rests on the applicant/FN to demonstrate that they will comply with the IRPA. Supporting a TRV application A temporary resident visa (TRV) is an official counterfoil document that is issued by a visa office and placed in a person’s passport to show that they have met the requirements for admission to Canada as a temporary resident. Holding a TRV does not guarantee entry to Canada. The admission of foreign nationals into Canada as temporary residents is a privilege, not a right. Consequences of inadmissibility Possible consequences for a PR A s.44(1) Report may be written, after which the person would need to appear before the Immigration Division of the Immigration and Refugee Board (IRB) Depending upon the type of ”inadmissibility,” the person may have the right to appeal the decision to take away their PR status to the Immigration Appeal Division (IAD) of the IRB Possible loss of PR status in Canada  Possible removal from Canada and the requirement of special paperwork for return to Canada Possible consequences for a TR If the person is in Canada, a s.44(1) Report may be written, after which the person would need to appear before the Immigration Division of the Immigration and Refugee Board (IRB) ○ Possible loss of TR status in Canada ○ Possible removal from Canada and the requirement of special paperwork for return to Canada If the person is outside of Canada (or at the border), they would be denied entry to Canada and/or denied the necessary immigration documentation for entry to Canada The person could request a Temporary Resident Permit or Rehabilitation (as applicable) to overcome the “inadmissibility” Once you have determined the client's nationality, entry and admissibility requirements, then ask yourself: what does the FN want to do if they are allowed to enter Canada? Visit - then FN may be required to apply for and be granted a TRV or eTA before they request entry to Canada, unless they are a US citizen seeking to enter as a visitor Study – then the FN must apply for and be granted a Study Permit before they request entry to Canada Work– then the FN must apply for and be granted a Work Permit before they request entry to Canada Studying in Canada What is a Study Permit? A Study Permit (SP) is a formal, written authorization issued to an FN that allows them to engage in studies in Canada at primary or secondary school, or at a designated learning institution. If less then 6 months study then permit not required You can come to Canada to study if you are enrolled at a DLI prove you have enough money to pay for ○ your tuition fees  ○ living expenses for yourself and any family members who come with you to Canada and ○ return transportation for yourself and any family members who come with you to Canada obey the law, have no criminal record and get a police certificate (if required) are in good health and get a medical exam (if required) and prove to an officer that you will leave Canada when your study permit expires What is a designated learning institution (DLI)? A DLI is an academic, trade or vocational school that has been approved by the Provincial and Federal Government to host international students. Which of the following schools are a DLI? Working in Canada A person can work in Canada without a Work Permit (WP) Work Permits fall into two general categories International Mobility Program - Free Trade Agreement work permits, Spousal Work Permits, Post-Graduate Work Permits, Intra-Company Transferee Work Permits, etc. - For IMP work permits, the employer must provide their offer of employment directly to IRCC using the employer portal and pay the employer compliance fee of $230 CAD for each applicant. (s.209.11 IRPR) LMIA required work permit - The employer is required to “test the labour market” and conduct a genuine job search to find a locally qualified candidate. - Employer must submit a formal application to Service Canada for a positive or neutral LMIA. - Application fee is $1,000 CAD per applicant. Business Visitor Business visitors are persons who stay in Canada for a few days or a few weeks to attend meetings or an event, and can stay for up to 6 months. To qualify as a business visitor to Canada, you must show that you plan to stay for less than 6 months you don’t plan to enter the Canadian labour market  your main place of business, and source of income and profits is outside Canada you have documents that support your application you meet Canada’s basic entry requirements, because you ○ have a valid travel document, such as a passport ○ have enough money for your stay and to return home ○ plan to leave Canada at the end of your visit ○ are not a criminal, security or health risk to Canadians If you plan to stay for more than 6 months or plan to work in Canada, you may be considered a temporary worker and have to apply for a work permit. Business permit - When there is no labour market entry International Mobility Program - Work Permit General process Step 1: Determine whether an LMIA is required or if the FN will be applying under the International Mobility Program. Step 2: Consider the nationality of the foreign national. This will determine where the person can apply: eTA required or US national – may apply at the border for the Work Permit, no application forms needed, but supporting documentation to outline that the FN meets the requirements of the category is needed TRV required national – must submit the request online, must complete application forms along with the necessary supporting documentation to ensure it clearly demonstrates that the FN meets the requirements of the work permit category being applied for Step 3: The employer must register the job offer with IRCC via the “employer portal.” Once a file number is generated, this must be in the application form (if Visa-required) or in the border application paperwork. Step 4: The representative compiles the application for submission. The representative should ensure that they outline clearly how the FN meets the requirements of the work permit category. What is a Labour Market Impact Assessment (LMIA)? ESDC requires Canadian employers to test the labour market to see if the Canadian employer can find a locally suitable candidate to fill the job. As such, before the employer can submit an LMIA application to Service Canada, the employer has to advertise the job in a very particular way. Once the genuine search for a local candidate is complete, if a local candidate isn’t found, then the Canadian employer can submit the LMIA application for determination. If a positive or neutral LMIA is issued, then the employer is approved to hire the foreign national. At this point, the FN would commence the work permit process. If a negative LMIA was issued, then the employer is not permitted to hire the FN. Temporary foreign workers in the agricultural industry Introduction to the Agricultural Stream Canada has several streams that allow workers to come to Canada for temporary agriculture jobs. See, for example, the following Government of Canada websites: 1. Hire a temporary foreign worker through the Agricultural Stream - hire temporary foreign workers when Canadians and permanent residents are not available. To qualify for this stream, employers must meet 2 criteria: production must be in specific commodity sectors, and the activity must be related to on-farm 2. Hire a temporary foreign worker through the Seasonal Agricultural Worker Program - hire temporary foreign workers when Canadians and permanent residents aren't available. must meet 3 criteria: the TFWs hired must be citizens from Mexico or participating Caribbean countries production must be in specific commodity sectors the activity must be related to on farm primary agriculture Temporary resident permit Who can get a TRP? Read IRPA section 24(1) and "Temporary resident permits (TRPs): Eligibility and assessment" is a special document issued by the Canadian government that allows a foreign national who is inadmissible to Canada (due to reasons like health, criminality, or other issues) to enter or remain in the country for a temporary period. It is typically used in cases where a person would normally be denied entry but has compelling reasons to visit or stay in Canada.  A TRV is for people who are admissible to Canada but need a visa to enter based on their nationality. A TRP is for people who are inadmissible but have a valid reason to enter or stay temporarily. Who is not eligible for a TRP? Per paragraph A24(4)(a), a failed refugee claimant may not request a TRP if all of the following conditions are met: Less than 12 months has passed since the day their claim for refugee protection with the Refugee Protection Division (RPD) was: ○ rejected ○ determined to be withdrawn, after substantive evidence was heard ○ abandoned No appeal has been made to the Refugee Appeal Division (RAD) No application for leave (and judicial review of that application) has been made to the Federal Court Per paragraph A24(4)(b), where a failed refugee claimant has appealed to the RAD or made an application for leave and judicial review of the decision to the Federal Court, the refugee claimant may not request a TRP unless at least 12 months have passed since the last rejection of the claim by the RPD rejection of the claim by the RAD decision on the application for leave and judicial review from the Federal Court Becoming a permanent resident Upon achieving permanent resident status, certain rights and obligations accrue to the individual. Let’s explore together the statutory framework for how a person achieves permanent resident status. - 3 main classes are: family class, refugee and humanitarian class, economic class IRPA s. 20 (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, (a) to become a permanent resident, that they hold the visa or other document required under the regulations and have come to Canada in order to establish permanent residence;  With respect to the pre-conditions of being granted permanent resident status: IRPA s. 21 (1) A foreign national becomes a permanent resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(a) and subsection 20(2) and is not inadmissible. s.20(1) IRPA states that a person who seeks to enter or remain in Canada as a PR must hold the required visa or document required under the Regulations, and must have come to Canada with the intention of establishing permanent residence Therefore, every prospective PR must have already obtained a PR visa or other required document before requesting to be "landed" as a PR They must also have a genuine intention of actually residing permanently in Canada A sponsor is required for selection purposes prior to obtaining a PR visa, and only where that person has applied for selection under a sponsorship category. s.21 of IRPA states that a person becomes a PR once they comply with s.20 IRPA and are not inadmissible. Settlement funds are a requirement only for some immigrants – mostly those who have been selected under the economic immigration categories. In any event, showing settlement funds factors into demonstrating that they are not inadmissible (namely, not inadmissible under IRPA s.39 which sets out the rules for financial inadmissibility). Permanent resident right of entry to Canada 27 (1) A permanent resident of Canada has the right to enter and remain in Canada, subject to the provisions of this Act. Conditions (2) A permanent resident must comply with any conditions imposed under the regulations or under instructions given under subsection 14.1(1). - s.27 of IRPA gives a permanent resident the right to enter Canada and the right to remain in Canada. - Along with these rights comes an obligation to comply with any conditions imposed elsewhere in the law. Right of entry to Canada for PRs Notice that the right of entry to Canada attaches to Permanent Resident status, not to any document such as the Permanent Resident card  In other words, a permanent resident who has not lost or relinquished their status has a right of entry to Canada, card or no card – they need only establish that they hold PR status which has never been relinquished or removed through formal proceedings (discussed in detail later) PRs do not need a visa to enter Canada but need evidence that they meet s. 28 IRPA, and they are not eligible for a Canadian passport because they are not citizens Keep in mind that an international commercial passenger vehicle such as an airplane, boat, or train will not board a traveler who cannot show evidence that they are authorized to enter Canada PRs who travel abroad, therefore, require some type of status document in order to prove their PR status to return to Canada via a commercial carrier Yvonne is a citizen of The Netherlands and a Canadian Permanent Resident. She became a PR of Canada in 2010. During her most recent entry, the CBSA officer inquired about the amount of time she has physically spent in Canada. The officer discovered that she has only spent 700 days of physical presence in Canada in the past 5 years. What options does the CBSA Officer have in this instance? Permanent resident cards Review s. 31(2) of IRPA. Notice that having or not having a valid PR card creates a “presumption” of having or not having PR status. However: ○ Despite having or not having a valid PR card, an officer can “determine otherwise” when it comes to whether the individual has PR status ○ It is therefore clear that the individual’s PR status is independent of the PR card ○ PR status is permanent unless/until it is relinquished or revoked through formal proceedings, whether or not the person has a valid PR card ○ according to R.55, a PR card can be issued only inside Canada Loss of permanent resident status - s. 46 IRPA on when a PR loses status. Notice the various ways that PR status can be extinguished. Cochran's Interviewing Skills for Legal Professionals Consider how you can take ownership of the space where you conduct a client interview: Do you have any control over the physical layout, or the colour scheme? If you work on a larger space, perhaps you choose different rooms depending on the client, or the interview purpose – perhaps a cosier space for interviewing a trauma survivor but a board room for a corporate client? Pay attention to the seating arrangement – for a client who is going through a lot of hardship, consider if it might be better to meet without a desk in between you Make sure the room and the furniture is accessible for those with disabilities if applicable Try adding a small detail such as a potted plant or flower to add some colour and life to an otherwise sterile room Ensure the temperature is comfortable, and ask the client if they are too hot or too cold Minimise distractions such as switching off the ringer on the phone or putting a Do Not Disturb sign on the door Offer a beverage such as coffee/tea/water  How might you make sure during the interview that the client remains focused? Give a subtle verbal cue such as "Do you have any questions about that?" An example of an internal distractor that can negatively impact a client interview include: Things happening in your personal life (nternal distractors that may impact your focus and attention include personal things going on in your life, biases, lack of sleep, hunger etc.) True or False: To maintain professionalism, interviews should always be conducted in your office. (While it may be the most professional setting, it may not always be possible or ideal to have an interview in your office. Some clients may have difficulties (due to finances or disability) traveling to your office for a meeting) There are additional challenges and preparation required for online interviews, including ensuring that you have the technical requirements and supports to conduct an online interview, have minimized distractions in your background, have a professional appearance, and have the camera set up so that it is at eye level (pp. 69-72). It is not recommended to have your screen cluttered with notes and documents that you read off the screen. First impressions are important, and clients will start forming unconscious judgments about you within a few seconds of meeting you. Is your workspace messy? If so, some clients may think you are disorganised, absent-minded, or a slob Does the space have a lot of clutter or too much furniture for the size of the room? If so, some clients may feel claustrophobic in this space or may feel distracted/confused by it Is there an empty food wrapper or a dirty coffee cup on your desk? Are there smudges on the glass or furniture? Does your bookshelf need dusting? Some clients might find these conditions unsanitary and therefore unsettling Review of inadmissibility (PR) - As you previously learned, PR status is not truly permanent – it can be lost and a removal order can be issued if a PR becomes inadmissible under certain categories of inadmissibility. How PR status can be lost through inadmissibility leading to a removal order Breach of conditions  ○ Failure to meet residency obligation (s. 28 IRPA) results in non-compliance with the Act (s. 41 IRPA) Inadmissibility ○ Serious criminality (s. 36(2) IRPA) ○ Organized criminality/transnational crime (s. 37 IRPA) ○ Inadmissibility on the grounds of: Security (s. 34 IRPA) Human or international rights violations (s. 35 IRPA) ○ Misrepresentation (s. 40 IRPA) ○ Non-compliance with IRPA (s. 41 IRPA) ○ Inadmissible family member (s. 42 IRPA) To whom do the loss of status provisions apply? Except where specified, grounds for loss of status apply equally to permanent residents and foreign nationals. It is much easier for a foreign national to lose status than it is for a permanent resident. For example: Residency obligation in s. 28 IRPA (only applies to PR) Criminality in s. 36 IRPA (different threshold for PRs or foreign nationals) Medical inadmissibility in s. 38 IRPA (only applies to foreign nationals) Residency obligation How do we calculate the five-year period referred to in s. 28? Read s.7.1-7.3 of IRCC policy manual ENF 23 with respect to the calculation of the five-year period. Note that the five-year period is calculated differently for those who have been PRs for less than five years, compared to those who have been PRs for over five years. s. 28 IRPA offers various means of complying with the residency obligation, including but not limited to physical presence. Various terminology is used, and it is important to understand what those terms mean. Review the regulatory definitions in s. 61 IRPR with respect to residency obligation Read s. 7.4-7.6 of IRCC policy manual ENF 23 regarding non-physical presence methods of meeting the residency obligation generally fulfilled by being physically present in Canada for at least 730 days within a five-year period. For those who have been permanent residents for less than five years, the five-year period is calculated from the day they obtained PR status.  For those who have been permanent residents for over five years, it’s a rolling five-year period that is assessed whenever needed. Non-physical presence ways to meet the residency obligation include accompanying a Canadian citizen or PR abroad or working for a Canadian business/public service outside Canada. Case Law on humanitarian & compassionate factors as they apply to residency obligation - Bufete Arce v. Canada (Citizenship and Immigration) Loss of PR Status through a decision made outside Canada A permanent resident outside Canada who does not have a valid PR card to travel home may apply for a permanent resident travel document (s. 31(3) IRPA) A negative decision on such an application is called a “negative residency determination” – which can result in a loss of status if the person fails to appeal (within 60 days), or if the person appeals and loses Loss of PR Status due to breach of residency obligation Notice in s. 46 of IRPA that PR status is not lost until either a final determination of a decision made outside of Canada that they have failed to comply with their residency obligation or until a removal order is made and it comes into force At any point until this happens, status is retained with full rights There is no “final determination” until appeal rights to the Immigration Appeal Division are exhausted Note that a negative residency determination made inside Canada or at the port of entry results in a removal order, while a residency determination made at a visa post outside Canada does not. This is because an individual inherently cannot be ordered “removed” if they are not in Canada to begin with. However both negative determinations can lead to loss of status, subject to appeal rights Issues of inadmissibility are complex and the possible outcomes are often very dependent on the precise facts of the case, especially where humanitarian and compassionate factors are involved As a result, getting all of the relevant facts and information from the client is absolutely a crucial skill for the representative Cochran's Interviewing Skills for Legal Professionals How to demonstrate active listening to client Active listening is both verbal and non-verbal Verbal responses should be non-judgmental, and leading questions should be avoided Non-verbal responses could be things like making eye contact, nodding, leaning forward slightly, and the occasional "mm-hmmm", affective to repeat back what the client has told u Probing questions : open ended that nudges prospects toward revealing more information about their situation Open questions are useful at all stages of an interview. That doesn’t mean there isn’t a place for closed or narrow questions but if you value quality information, give the client a chance to provide you with it rather than trying to show how smart you are by jumping to conclusions, even those that you think are obvious. It is effective to repeat back to the client what they have told you, to let them know you are following what they say. It can also help to make sure you have not missed anything While there are often two obvious or even likely actions, usually there are a multitude of possibilities. Even when there are only two possibilities, by posing an either/or question the interviewer loses the benefit of hearing the description in the client's own words. This can be extremely valuable in alerting the immigration consultant to subtle nuances in the circumstances of the situation and in knowing how the client will manage the litigation process. By asking leading questions, the interviewer influences or directs the respondent to an answer that the interviewer either prefers or, at the very least, anticipates. The interviewer tends to restrict the potential answers when leading and thus corrupts the information being received. A leading question directs the respondent to an answer, thereby injecting the interviewer's perspective into the interview. It is not always possible to obtain all the required information needed in the initial client interview, and often some type of follow up is required Open questions help elicit more information, while narrow or closed questions help flush out specific details. It is also helpful to use more closed questions when your client is nervous or forgetful. In addition, if you have a client who is long-winded, closed questions help keep your client focused on the relevant information  An interview solely using closed questions will be: A) be dominated by the interviewer’s perspective on the situation. B) will not leave any room for the nuances of the client’s personal experience or point of view. Shotgun questions pepper the client with a bunch of distinct questions all at the same time. It can be confusing for the client and equally confusing for the interviewer to sort out what the response means. How to show empathy to client Empathy and sympathy are different concepts – sympathy is simply feeling sorry for a person's circumstances, but empathy involves putting yourself in the client's shoes and attempting to truly identify with their experience Empathy can be reflected in statements such as "That must have been embarrassing for you" or "That seems to have made you angry" Empathy might also be reflected in your body language or facial expressions, such as exhibiting a look of genuine concern, or nodding your head (be aware however that different cultures may have different ways of expressing empathy) How reliable is a person's non-verbal communication Take time this week to observe the non-verbal communication of others and yourself Is there anything about your own non-verbal communication of which you were previously unaware? How might this affect a client's response to you? For example – do you frown when you are concentrating? Do you lean toward a person when they are talking to you (indicating openness) or do you sit back with your arms crossed (indicating being closed)? Non-verbal communication can be a very valuable source of information about a client's unspoken feelings, but it can also be easily misunderstood, especially when dealing cross-culturally. For example, in North American culture, eye contact means honesty. In other cultures, looking someone directly in the eye can be interpreted as disrespect. It is therefore important to reflect your thoughts back to the client by asking questions or prompting discussion in order to confirm that your understanding is correct. For example, "I notice that you are moving around in your chair a lot. I am wondering what you are feeling." Cochran states that active listening communicates interest, understanding and concern  A good listener doesn't ask a lot of questions to fill up space, but is responsive and allows the other person to tell their story without interruption. Funnel sequence - starts with broad, open questions and continues with questions that progressively narrows the focus of the interview. While leading questions are to be avoided, the questions can become progressively more specific to the point where a one-word answer may be called for. The purpose is to provide an opportunity for the client to supply focused information in relation to the particular issue without influencing the content. - funnel sequence begins with broad open questions at first and then moves to more narrow specific questions The process for loss of PR status No overview of PR status would be complete without pointing out that permanent residence is not really "permanent" - If the officer believes that the person is inadmissible for any reason, including non-compliance for violating the residency obligation, they can issue a s.44 Report. - 44(2) If the Minister is of the opinion that the report is well founded, the Minister may refer the report to the Immigration Division for an admissibility hearing, except in the case of a permanent resident who is inadmissible solely on the grounds that they have failed to comply with the residency obligation under section 28 and except, in the circumstances prescribed by the regulations, in the case of a foreign national. In those cases, the Minister may make a removal order. The important take-away from s. 44(2) IRPA: The report is referred to the Minister’s delegate. If the person reviewing the report believes the report is well-founded, she may: ○ Refer the report to the Immigration Division for an admissibility hearing ○ Issue a removal order ○ Decide not to proceed with the matter (often based on H & C considerations) - Both 44(1) and 44(2) use word “may” instead of “must” or “shall” Referral of the Report for removal order or admissibility hearing Under s. 44(2) IRPA, if the Minister’s Delegate finds the report to be well-founded, they will either issue a removal order or refer the matter for a hearing in front of the Immigration Division of the IRB. This is governed by s. 228 IRPR. Read s. 228 IRPR which sets out when a matter goes to the Immigration Division Permanent residents always get a hearing before the Immigration Division unless the report is based only on failure to meet residency obligation, in which case a removal order is directly issued. S. 228(2) of IRPR specifies that this should be a departure order Appeals to the Immigration Appeal Division Appealing the removal order decision - s. 63(3) IRPA - A permanent resident or a protected person may appeal to the Immigration Appeal Division against a decision to make a removal order against them made under subsection 44(2) or made at an admissibility hearing. Appealing negative residency determination decision made outside of canada - s. 63(4) IRPA - A permanent resident may appeal to the Immigration Appeal Division against a decision made outside of Canada on the residency obligation under section 28. Those with no right to appeal The following permanent residents are not eligible to appeal their removal order (s. 64 IRPA): Inadmissible on grounds of security, violating human or international rights, or organized criminality Inadmissible for serious criminality (defined in s. 64(2) IRPA - includes crimes punished in Canada by a prison term of six months or more) Judicial review of loss of status decision Judicial review (Federal Court) A removal order that may not be appealed to the IAD may be judicially reviewed in the Federal Court of Canada The relevant limitation period is 15 days, because it is a decision made inside Canada Only a lawyer has standing to represent a client in Federal Court Coming into force of removal orders Recall that s. 46 IRPA states that loss of PR status occurs when a removal order “comes into force” (becomes effective). Let’s explore what that means. Read s. 49(1) IRPA regarding when a removal order comes into force (becomes effective) A removal order comes into force on the latest of the following dates: ○ (a) the day the removal order is made, if there is no right to appeal; ○ (b) the day the appeal period expires, if there is a right to appeal and no appeal is made; and ○ (c) the day of the final determination of the appeal, if an appeal is made. Loss of PR status Notice that status is not lost until a removal order is made and it comes into force At any point until this happens, PR status is retained along with full rights Remember, a s.44 Report is just an allegation until it is ruled upon, and even then if there is a right of appeal to the IAD, the decision is not final A permanent resident may NOT do which of the following A Canadian Citizen and a Permanent Resident cannot have their status revoked. A Permanent Resident cannot be granted a Canadian passport. A Permanent Resident cannot vote in a Canadian Federal election. Family class Purpose of the Family Class: Objectives of IRPA 3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;  (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; (b.1) to support and assist the development of minority official languages communities in Canada; (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; (f) to support, by means of consistent standards and prompt processing, the attainment of immigration goals established by the Government of Canada in consultation with the provinces; (f.1) to maintain, through the establishment of fair and efficient procedures, the integrity of the Canadian immigration system; (g) to facilitate the entry of visitors, students and temporary workers for purposes such as trade, commerce, tourism, international understanding and cultural, educational and scientific activities; (h) to protect public health and safety and to maintain the security of Canadian society; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society. Highlights of the Family Class The family class category of immigration facilitates family reunification by permitting Canadian citizens and permanent residents to sponsor specified categories of family members. Highlights of the sponsorship program include:  1. a modern definition of "family" that includes common law, conjugal, and same-sex partners; 2. a definition of "dependent child" that recognizes the dependency of children up to 22 years of age 3. a sponsorship stream for parents and grandparents that requires a consecutive three-year pattern of elevated financial stability for the sponsor 4. a provision for adoption, in keeping with the principle of the "best interests of the child," that leads directly to citizenship for the adoptee if one of the adopting parents is a Canadian citizen 5. the length of a sponsorship undertaking, which ranges from three to 20 years, depending on the relationship to the sponsor Who is eligible to be sponsored as a member of the family class? 1. a spouse, common-law partner or conjugal partner 2. a dependent child 3. an adopted child 4. the sponsor's parents 5. the sponsor’s grandparents 6. an orphaned brother/sister, niece/nephew or grandchild, if under 18 7. a person under 18 years of age whom the sponsor intends to adopt in Canada (subject to certain conditions) 8. one other relative, if the sponsor is completely alone in Canada and has no other sponsorable relative Spouse, common-law partner or conjugal partner Spouse Definition A legal marriage partner. The term "spouse" includes both opposite- and same-sex relationships but does not include common-law partnerships. Opposite and same-sex marriages will be recognized for immigration purposes, where the marriage: ○ was legally performed in Canada ○ if performed outside of Canada, the marriage must be legally valid in the country where it took place and in Canada Common Law Partner Definition  According to s.1 IRPR , "Common-law partner means, in relation to a person, an individual who is cohabiting with the person in a conjugal relationship, having so cohabited for a period of at least one year. (conjoint de fait)" The term "common-law partner" refers to both opposite-sex and same-sex couples A common-law partner may be a principal applicant or a family member Cohabitation must take place over a continuous 12-month period Conjugal Partner Definition According to s.2 of IRPR , "Conjugal partner means, in relation to a sponsor, a foreign national residing outside Canada who is in a conjugal relationship with the sponsor and has been in that relationship for a period of at least one year. (partenaire conjugal)" A conjugal partner is someone who could not live with the sponsor as a couple because of reasons beyond their control (e.g., immigration barrier, religious reasons or sexual orientation)(does not need to have sexual relation) The term "conjugal partner" applies to both opposite and same-sex couples You can sponsor a conjugal partner if there is a significant degree of attachment between the two of you, implying not just a physical relationship but a mutually interdependent relationship It is up to counsel to establish a list of documents to demonstrate the conjugal nature of the relationship Which of the following applicants would NOT be eligible to apply under the Spouse or Common-Law Partner in Canada Class? "Lack of status" does not refer to any other inadmissibilities including: ​ Persons who have entered Canada with a fraudulent or improperly obtained passport, travel document or visa and who have used the document for misrepresentation under IRPA In order to be eligible to sponsor a spouse, common-law spouse or conjugal partner, a person must meet the following requirements (select all that apply): Be a Canadian Citizen, permanent resident of Canada or a person registered in Canada as an Indian under the Canadian Indian Act. Not be the subject of a removal order.  Be at least 18 years of age Disjunctive test - Section 4 of the IRPR describes the test that must be met in order for a marriage, common-law partnership, or conjugal partnership to be found to be in bad faith. - 2 parts: Genuineness of the marriage and the primary purpose for entering the relationship - Section 4(1) of the IRPR states: For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner or a conjugal partner of a person if the marriage, common-law partnership or conjugal partnership​ - (a) was entered into primarily for the purpose of acquiring any status or privilege under the Act ; or​ - (b) is not genuine. Leroux v Canada (Citizenship and Immigration), 2007 FC 403: - Recognizes that there may be restrictions that apply because the partners live in different countries that may have different moral standards, which can affect the degree of tolerance for conjugal relationships, especially for same-sex partners Nevertheless, the alleged conjugal relationship must have a sufficient number of features of a marriage to show that it is more than just a means of entering Canada What does the board say about bona fide marriages - All applications for permanent residence have, of course, the goal of acquiring status but that general intent is distinguishable from cases where the evidence shows, on a balance of probabilities, that it was a primary purpose of the relationship to acquire any status or privilege under the Act. - Banh v Canada (Citizenship and Immigration), 2013 CanLII 98046 (CA IRB) Children, parents and grandparents Dependant child: According to s.1 of IRPR: dependant child, in respect of a parent, means a child who  (a) has one of the following relationships with the parent, namely, ○ (i) is the biological child of the parent, if the child has not been adopted by a person other than the spouse or common-law partner of the parent, or ○ (ii) is the adopted child of the parent; and (b) is in one of the following situations of dependency, namely, ○ (i) is less than 22 years of age and is not a spouse or common-law partner, or ○ (ii) is 22 years of age or older and has depended substantially on the financial support of the parent since before attaining the age of 22 years and is unable to be financially self-supporting due to a physical or mental condition. (enfant à charge) Adopted child: According to the IRPR 3(2):..."adoption", for greater certainty, means an adoption that creates a legal parent-child relationship and severs the pre-existing legal parent-child relationship. - The adopted child's age is "locked in" on the date IRCC receives a completed application, so the child will be included in the application. (even if 22) Orphaned Child: According to 117(1) of the IRPR: A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is​ (f) a person whose parents are deceased, who is under 18 years of age, who is not a spouse or common-law partner and who is​ ○ (i) a child of the sponsor’s mother or father,​ ○ (ii) a child of a child of the sponsor’s mother or father, or​ ○ (iii) a child of the sponsor’s child Parents or grandparents According to 117(1) of the IRPR: A foreign national is a member of the family class if, with respect to a sponsor, the foreign national is​ (c) the sponsor’s mother or father;​ (d) the mother or father of the sponsor’s mother or father​ Furthermore  A client can sponsor their own parents and grandparents, related by blood or adoption In case of divorce or separation, the client can sponsor their parents’ and grandparents’ spouses, or conjugal or common-law partners In the application, the client can only include their brothers and sisters, or half brothers and sisters if they qualify as dependent children of the parents. A client may sponsor more than one person or couple if they meet the income requirements for all the people they want to sponsor and their dependents (spouse, partner and children) A client can’t sponsor:​ ○ their spouse’s parents and grandparents (their in-laws)​, but they can be a co-signer on their in-laws’ application. Undertaking: To become a sponsor, the person must promise to financially take care of the persons they are sponsoring for a period of time. This is called an "undertaking". The undertaking is a legally binding contract in which the Sponsor is obligated to repay the Government, should any sponsored family members collect social assistance after their arrival to Canada. The length of an undertaking on a parental application is as follows – select the best answer: The sponsor must ensure that their parents are provided with the basic requirements (i.e. food, shelter, clothing, etc.) for the duration of the 20-year undertaking. Excluded relationships According to IRPR s.117(9): (9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if (a) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner and is under 18 years of age; (b) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner, the sponsor has an existing sponsorship undertaking in respect of a spouse, common-law partner or conjugal partner and the period referred to in subsection 132(1) in respect of that undertaking has not ended; (already has an application for a different partner) (c) the foreign national is the sponsor’s spouse and ○ (i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person, or ○ (ii) the sponsor has lived separate and apart from the foreign national for at least one year and (A) the sponsor is the common-law partner of another person or the sponsor has a conjugal partner, or (B) the foreign national is the common-law partner of another person or the conjugal partner of another sponsor; or (c.1) the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the foreign national was marrying a person who was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law; (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. Four categories of excluded relationships What are the four categories of persons who are excluded notwithstanding that they may otherwise meet the definition of “member of the Family Class”? Underage marriage: IRPR 117(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if​ (a) the foreign national is the sponsor’s spouse, common-law partner or conjugal partner and is under 18 years of age Multiple marriages: IRPR 117(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if​ (c)the foreign national is the sponsor’s spouse and​ (i) the sponsor or the foreign national was, at the time of their marriage, the spouse of another person Proxy Marriage IRPR 117(9) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if​ (c.1) the foreign national is the sponsor’s spouse and if at the time the marriage ceremony was conducted either one or both of the spouses were not physically present unless the foreign national was marrying a person who was not physically present at the ceremony as a result of their service as a member of the Canadian Forces and the marriage is valid both under the laws of the jurisdiction where it took place and under Canadian law the marriage ceremony took place outside of Canada, and was registered in a country where marriage by proxy is legal. Undeclared dependents: IRPR 117(9)(d) A foreign national shall not be considered a member of the family class by virtue of their relationship to a sponsor if​ (d) subject to subsection (10), the sponsor previously made an application for permanent residence and became a permanent resident and, at the time of that application, the foreign national was a non-accompanying family member of the sponsor and was not examined. Temporary policy on undeclared dependents As per 117(9)(d), failing to have a non-accompanying family member examined is a lifetime bar on being able to sponsor that family member​. But concerns have been raised about the consequences of that lifetime bar on children and other vulnerable family members​. In light of such concerns, there is now a two-year pilot project to exempt Convention refugees or a person in similar circumstances, as a protected person or who were sponsored as a spouse, a common-law partner, a conjugal partner, or dependent child​, even if it wasn't declared earlier 5.2.3 Who can be a sponsor in a Family Class application? Sponsor (R 130(1)) 130 (1) Subject to subsections (2) and (3), a sponsor, for the purpose of sponsoring a foreign national who makes an application for a permanent resident visa as a member of the family class or an application to remain in Canada as a member of the spouse or common-law partner in Canada class under subsection 13(1) of the Act, must be a Canadian citizen or permanent resident who (a) is at least 18 years of age; (b) resides in Canada; and (c) has filed a sponsorship application in respect of a member of the family class or the spouse or common-law partner in Canada class in accordance with section 10. - Only certain very specific Criminal Code convictions exclude a sponsor from eligibility, and even then the exclusion is not permanent. Most criminal offences will not exclude a sponsor.​See: Desloges & Sawicki, Chapter 7, s. III B "Bars to Sponsorship." - Convictions that will bar sponsorships include committing or attempting to commit a sexual assault on any person, committing or attempting to commit an indictable offence that involves the use of violence and that had a maximum term of imprisonment of at least 10 years, and committing or attempting to commit an offence that results in bodily harm against a relative or extended family member.See: s. 133(e) of the IRPR for the full list of exclusions. Living in Canada Exception (R 130(2)) Sponsor not residing in Canada​ (2) A sponsor who is a Canadian citizen and does not reside in Canada may sponsor a foreign national who makes an application referred to in subsection (1) and is the sponsor’s spouse, common-law partner, conjugal partner or dependent child who has no dependent children, if the sponsor will reside in Canada when the foreign national becomes a permanent resident. Five-Year Bar for Previously Sponsored Spouses (R 130 (3)) Five-year Requirement A permanent resident or a naturalised Canadian citizen who has previously been sponsored as a spouse or a common law or conjugal partner under s. 13(1) of the IRPA may not sponsor a new spouse or partner for a five-year period after becoming a permanent resident. ​ Note: this regulation was intended to curb abuse of the spouse/partner sponsorship program. 5.2.3 Eligibility Requirements for Sponsorship - s.133 of IRPR When must the sponsor meet the requirements in R133? Pay careful attention to the wording of R133(1), which states:​ "A sponsorship application shall only be approved by an officer if, on the day on which the application was filed and from that day until the day a decision is made with respect to the application, there is evidence that the sponsor" meets all the requirements.​ In other words, the sponsor must meet all requirements from the day of filing right through until the day a decision is made.​ "The day a decision is made" means the date when the sponsored applicant is granted permanent residence after an examination at the port of entry on arrival to Canada. What's an undertaking and how long does it last? Undertakings (R131 -132)​ A promise/contract by the sponsor to the government to financially take care of the applicants for a specific period time​ ○ Parent or grandparent the undertaking is 20 years​ ○ Spouse, common law, or conjugal partner the undertaking is 3 years​ ○ Child (biological or adopted) under 22 the undertaking is 10 years or until they are 25​ The Sponsorship Agreement is an agreement between the sponsor and the sponsored family members to certain responsibilities during undertaking period​ ○ provide for the basic needs of the sponsored family members​ ○ the sponsored family members will make every effort to support themselves and their family members 5.2.3 Minimum Necessary Income - s.134 of IRPR Who needs to meet Minimum Necessary Income (MNI)? MNI applies to most Family Class sponsorships but does not apply to:  a sponsor’s spouse, common law partner or conjugal partner​ the sponsor’s spouse’s dependent children, as long as they have no children of their own​ the sponsor’s dependent child as long as they have no children of their own How to calculate the Minimum Necessary Income (R 134 (1)) MNI level is determined on the basis of the total number of family members. This includes:​ all members of a sponsor’s own family all sponsored persons and their family members, including family members listed as non-accompanying As per 134(1)(a), sponsors must provide their notice of assessment from the Canada Revenue Agency. MNI rules for different categories of sponsorship Spouse, common law partner, or dependent children​ ○ A sponsor is exempt from the MNI test unless the dependent child has a dependent child of her own ​ Sponsoring “other relatives” ​ ○ A sponsor must have a total income that is at least equal to the MNI for the most recent taxation year ​ Sponsoring parents or grandparents​ ○ A sponsor must have a total income that is at least equal to the MNI, plus 30 percent, for each of the three consecutive taxation years immediately preceding the date of the filing of the sponsorship application MNI case study Magda is a Canadian citizen. Her sister Maryam is also Canadian. Magda is married with two children, aged 23 and 20. She now wants to sponsor her mother to immigrate to Canada. Her father does not wish to immigrate at this time. What is the correct number of family members for which Magda needs to meet Minimum Necessary Income?  - Five persons – Magda plus her husband plus one dependent child under the age of 22, plus her mother and her father even though he is non-accompanying. Income required? - $54,630 Can sister cosign if does not meet income threshold - Magda’s sister cannot be a co-signer. Her husband could co-sign. 5.2.5 The Application Process (Family sponsorship) - For most sponsorships, a sponsor must simply submit a "complete" application which includes all of the application forms and mandatory documents required by IRCC. ​ - However, for parents and grandparents, a sponsor must first be "invited to apply" before submitting a sponsorship application Sertovic v. Canada - The Board found that the adoption was legally conducted in the home country and that the adoptive parent had established a genuine parent-child bond. However, the adoption laws in the home country did not legally sever the rights of the natural parents. Gritsan v. MCI - The Board Member sought to define what "residence" in Canada means in the context of a sponsorship. - The Board Member was interpreting s.130(1) of the IRPR. 5.3.1 National Occupational Classification A new five-digit hierarchical class system has replaced the old four-digit structure. Another important change in the new version of the NOC is the reorganization of the skill level structure into a six category system representing the different requirements to enter an occupation: Training, Education, Experience and Responsibilities (TEER). The new TEER system will impact the eligibility of certain occupations under federal and provincial programs for skilled and semi-skilled workers. The vast majority of economic classes require the foreign national to have worked in a job that is listed in the NOC 2021 at TEER 0, 1, 2, or 3.  TEER 0: Typically management jobs. TEER 1, 2, 3: Jobs requiring higher levels of education, training, or responsibilities. TEER 4, 5: Jobs that require less education or specialized training. 5.3.1 Language Requirements - IRCC requires individuals who are applying for permanent resident status to demonstrate their ability in English and/or French. - As such, they must take an “approved language test” and obtain the minimum necessary points for the program the person is applying under (i.e. FSW or CEC). - IRCC has designated what language tests are accepted as evidence of language ability. ​ - Accepts : CELPIP general test, IELTS general, TEF canada french (MUST BE LESS THEN 2 YRS OLD) (Express Entry profile is valid for 12 months. Make sure that your language test results are valid for the same time period.) How to convert language test scores into points for each economic category​ - it is your job to determine the Canada Language Benchmark (CLB) or Niveaux de competence linguistique canadiens (NCLC) level for each of the following: speaking, reading, writing and listening. - Then you need to review the IRCC chart for the specific economic category to determine the amount of points for each skill. This will give you the language score. 5.3.3 Introduction to Express Entry What is Express Entry?​ - Express Entry is an online system that IRCC uses to manage applications for permanent residence in four categories: 1) Canadian Experience Class (CEC) 2) Federal Skilled Worker (FSW) 3) Federal Skilled Trades Program (FSTP) 4) EE provincial nominee program (PNP) - FSTP requires a minimum language proficiency of CLB 5 in speaking and listening and CLB 4 in reading and writing - FSW requires 7 in all 4 categories - CEC: The applicant must have completed a minimum of one year of work in Canada on a valid work permit in a TEER 0, 1, 2, or 3 occupation. Canadian Experience Class (CEC): individuals who have gained skilled work experience in Canada. It is designed for temporary foreign workers and international graduates who have been employed in Canada and wish to transition to permanent residence (but must have worked for 1+ yr). Does not include self employed Federal Skilled Worker (FSW): This program targets skilled workers with foreign work experience who meet specific qualifications, including language proficiency, education, and relevant work experience, and who intend to become permanent residents of Canada. (assesed on point system - NEED 67 POINTS OR MORE) Federal Skilled Trades Program (FSTP): This is aimed at individuals with experience in skilled trades. Applicants must meet specific trade qualifications and have job offers or a certificate of qualification from a Canadian province or territory. (not assessed on point system) (does not exist in quebec) Provincial Nominee Program (PNP) via Express Entry: Under this stream, provinces and territories can nominate candidates from the Express Entry pool who meet their specific labour market needs. (AND THEY MUST HAVE INTEREST IN SETTLING IN THAT PROVINCE/TERRITORY) Being nominated through a PNP can significantly increase a candidate’s chances of receiving an Invitation to Apply (ITA) for permanent residence. (do not necessarily require degree or diploma)(can qualify thru express entry or directly thru pnp) Caregiver class: For caregivers who come to Canada to care for children, the elderly, or people with medical needs. Caregivers can apply for permanent residency after gaining qualifying work experience (usually at least 2 years). Applicants can apply from within Canada after completing the required work experience, or apply directly from abroad if they have a job offer. (not employer specific- can change employer, dont need lmia, can call immediate family on open work/study permit). Includes home child care provider (under 18) and home support worker) Startup business class: For entrepreneurs who want to start a business in Canada. The program is designed to attract innovative business ideas that can create jobs for Canadians. Applicants must: Have a letter of support from a designated organization (venture capital, angel investor, or business incubator). Meet the ownership requirements for the business. Show they have enough money to settle and run the business in Canada. Quebec selected skilled workers: This program is for people who want to live and work in Quebec and have the skills, education, and experience that align with Quebec's economic priorities. Applicants must first apply for a Certificat de sélection du Québec (CSQ) from the Quebec government. After receiving a CSQ, they can then apply to the federal government for permanent residence. The selection process includes factors such as French language ability, education, work experience, and a connection to Quebec. 5.3.3 Provincial Nominee Programs (including EE-PNP) "Intention to reside" - Under the PNP category one of the requirements is that the foreign national “intends to reside in the province or territory that nominated them.” ​ 5.3.3 Other Economic Categories The many categories of the Economic Class  - Federal Skilled Workers (FSW)​ - Canadian Experience Class (CEC)​ - Federal Skilled Trades (FST)​ - Start-up Business Class​Investors (CLOSED) - Entrepreneurs (CLOSED) - Self-employed Persons Class - Quebec Economic Classes and Provincial Nominee Programs (PNP)​ - Immigrant Investor Venture Capital Class (ON HOLD)​ - Atlantic Immigration Program​(AIP) - Caregiver classes​ - Rural and Northern Immigration Pilot Program​ - Agri-Food Pilot (AFP) - Economic Mobility Pathways Pilot As you may have noticed on the website, and in the table above, categories are created, cancelled or put on hold to suit the government's economic policies and priorities. For example, as you read online, notice that the Federal Entrepreneur category no longer exists. However, the Federal Government recognised a need to entice new immigrant entrepreneurs to Canada and created the Start-Up Visa category.​ Specifically, they want individuals with the skills and potential to build businesses in Canada that are innovative, will create jobs for Canadians and can compete on a global scale.​ There are similar immigration processing streams at the Provincial Nominee Program level. As you can see, there are many different economic immigration programs available to applicants, each with a diverse set of requirements. Economic and Social Development Canada ESDC: To verify that the working conditions meets the required legal standards To verify that the Canadian employer has completed a genuine search for a local candidate to fill a labour shortage To verify that the job offer is genuine NOT To verify that the foreign national has the requisite educational background to perform the duties outlined in the job offer Arranged employment In order for arranged employment to qualify towards points in Express Entry, the foreign national must have either (1) an LMIA for ESCE and a formal written job offer, OR (2) be working for a specified employer for at lease 1 year on an LMIA-exempt work permit, AND have a written formal job offer for at least one year. Since, the Post Graduate Work Permit is an open work permit, the job offer that George has will not qualify towards additional points for arranged employment, unless the employer provides a written job offer for at least one year of full-time employment. When do you need police clearance certificate - Country of residence - Where you reside for more than 6 months in a row Refugee protection in global context In a background paper prepared in the 1990s, the following observation was made: - There are many people in the world whose lives, liberty or security are in jeopardy. Some are threatened by political oppression, some by natural disasters, others by economic conditions that make even a subsistence existence difficult or impossible. Still others flee war or civil strife. Such situations force many individuals to leave their homes to seek refuge and security elsewhere, either in other countries or in different parts of their own country. In a general way, all such people may be called "refugees." In international and national legal systems and practice, however, the term carries a much more limited and technical meaning. - Those who fall under the rubric "refugees" in this more technical sense - nearly 30 million people worldwide today - are the subject of this subunit on "Refugee protection in global context", which aims to provide an overview of the legal framework and the global regime that has developed to protect refugees. Refugees: a person who has a well founded risk of being persecuted based on 1/5 factors - All refugee applicants and their dependents must pass a medical examination to ensure they have no medical condition that is likely to be a danger to Canadian public health or safety - Person in urgent need of protection is defined as whose life, liberty, or physical safety is under immediate threat and who is likely to be (a) killed, (b) subjected to violence, torture, sexual assault, or arbitrary  imprisonment, or (c) returned to their country of nationality or former habitual residence. - A refugee with "special needs" is defined as "a person who has greater need of settlement assistance than other applicants for protection abroad owing to personal circumstances", such as a large number of family members, trauma resulting from violence or torture, medical disabilities, or the effects of systemic discrimination - A durable solution is being able to return safely home, having protection in another country where they can reside, and being integrated into their host country - To support the subjective basis for a refugee claim, the claimant may submit documentary evidence such as medical or psychological reports. The claimant's written and verbal statement that provide insight into their state of mind is also acceptable - burden of proof lies with the refugee claimant to substantiate statements with evidence. The evidence can be in oral form (the claimant's testimony under oath) or documentary form. The UNHCR points out that refugee claimants who flee persecution may have little or no personal documentation. If the claimant's statement's statements appear credible, the claimant should be given the benefit of the doubt. - refugees should not be penalised for entering a country illegally (including forged documents) if they have come directly from a place where they were in danger and have made themselves known to the authorities. Canadian courts have upheld this international law principle. - three basic elements of the refugee definition: inclusion, exclusion and cessation Non-refoulement, interdiction and refugee protection - The principle of non-refoulement is commonly regarded as ‘the cornerstone of international refugee law’. Its primary source is Article 33(1) of the Geneva Convention: ‘No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. The right to non-refoulement is intended to ensure that refugees are not forced back to countries where they might face a risk of certain forms of serious harm. In Canada, the right to non-refoulement has been incorporated into s. 115 of the IRPA.  - Non-refoulement is a rule of international law that obliges countries to provide protection to refugees against return to the country where they face a risk of persecution, or where their life or freedom would be threatened unless an exclusion applies. Countries are not obligated to provide protection to everyone who claims it, but they must provide a fair system to adjudicate claims for protection. - In the wake of increasing asylum claims in the 1980s, many governments have launched a series of “interdiction” measures aimed at preventing or deterring would-be asylum seekers from reaching their territories. At times, the measures have skirted, if not entirely undermined, the principle of non-refoulement. - For example, the Inter-American Commission on Human Rights found the US in violation of the principle of non-refoulement and its obligations under the American Declaration on the Rights and Duties of Man as a result of the activities of the US coast guard in intercepting Haitian boat people on the high seas. - While Canada has not pursued a general policy of interception on the high seas, the interception of 192 Sri Lankan Tamils in the territorial waters of Senegal was an exception. As well, Canada routinely implements other forms of interdiction. For example, liaison officers are tasked with preventing persons who lack Canadian authorization or other required documents from boarding planes or boats bound for Canada Safe third country agreement “First country of arrival” or “safe third country agreements” have been adopted in domestic refugee laws to bar access to asylum procedures to claimants who have travelled through a so-called safe third country en route to their destination. The UNHCR has generally endorsed these agreements in the name of responsibility or burden sharing. However, the extent to which such agreements are consistent with the requirements of the Refugee Convention must always be assessed to ensure the first country of arrival offers meaningful protection from non-refoulement. The Canada –US Safe Third Country Agreement was signed in 2002 as part of the US-Canada Smart Border Action Plan and implemented in 2004 with the formal designation of the United States. The Agreement has been subject two legal challenges, one in 2008 and a second in 2019. In 2020 a Federal Court ruling found the designation of the US unconstitutional. The Federal Court of Appeal overturned the decision on procedural grounds in 2021.  The Supreme Court of Canada handed down its decision on June 16, 2023 in Canadian Council for Refugees v Canada (Citizenship & Immigration), 2023 SCC 17. Several individuals whose claims were ineligible to be referred to the Refugee Protection Division challenged the STCA, along with three public interest organizations, arguing that it violated their rights under s. 7 and s. 15 of the Charter. The Supreme Court held that the STCA did not breach s. 7 of the Charter. The court found that some differences in conditions of detention between Canada and the United States can be tolerated, so long as the American system is not fundamentally unfair. The Court found that while returnees face a risk of detention in the United States, there are also mechanisms that create opportunities for release and provide for review by administrative decision makers and courts. The Court found that if there is a real risk of refoulement, then this might exempt a claimant from return to the United States under the STCA. The Court also held that the challenge relating to s. 15 of the Charter be returned to the Federal Court for determination, particularly on the serious matter of whether women fearing gender-based forms of persecution would have their claims fairly adjudicated in the United States. This matter is now pending. On March 24, 2023, Canada and the United States announced that, as of March 25, 2023, the STCA and the Additional Protocol would be expanded across the entire land border, including internal waterways. Refugee claimants who cross the border into Canada and who do not meet one of the exceptions in the STCA will be returned to the United States. Is the international refugee regime failing refugees? Scholars, advocates and refugees themselves have advanced many criticisms of the international refugee regime. There is little question that global protection mechanisms are faltering in the wake of the severe pressures concomitant with the soaring numbers of refugees worldwide. Some scholars have advocated for a radical re-orientation of existing institutions and frameworks, while others call for incremental reform. Others urge the re-opening of the Refugee Convention to more effectively address the needs of climate-induced refugees and/or the internally displaced. These are questions you will have an opportunity to reflect on further in the Refugee Protection course in a subsequent term of your Graduate Diploma studies. Interdiction and refugee protection In the wake of increasing asylum claims in the 1980s, many governments have launched a series of "interdiction" measures aimed at preventing or deterring would-be asylum seekers from reaching their territories. While Canada has not pursued a general policy of interception on the high seas, the interception of 192 Sri Lankan Tamils in the territorial waters of Senegal was an exception. As well, Canada routinely implements other forms of interdiction. For example, liaison officers are tasked with preventing persons who lack Canadian authorization or other required documents from boarding planes or boats bound for Canada The refugee definition and refugee status determination in Canada There are two pathways to receiving protection in Canada: 1. an application for refugee protection, determined by the Refugee Protection Division and the Refugee Appeal Division of the IRB 2. an application for protection determined by an officer of Immigration, Refugees and Citizenship Canada, in some cases together with a delegate of the Minister, as part of a “pre-removal risk assessment” - The Supreme Court of Canada’s decision in Canada (AG) v. Ward is a foundational case on the test for determining a “well founded fear of persecution” in order to make a claim for refugee status. Among other important rulings, the Court held that persecution need not originate from the state, and that mere inability to provide protection is sufficient to establish a claim for persecution. The Court also offered guidance on the meaning of “particular social group” within the refugee definition of the Convention. - The five grounds of persecution are: race, religion, nationality, membership in a particular social group, and political opinion. Claimants may have more than one nexus to a Convention ground– Victims of ordinary crime do not fit the definition of a Convention refugee. - "Seeking Refuge" follows newly-arrived refugee claimants navigating Canada’s refugee determination system. The documentary pre-dates the launch of the Refugee Appeal Division of the IRB in 2012, so the brief reference to the absence of an appeal for refused claims, is no longer accurate. However, aside from that one detail, the video offers a bird’s eye view of Canada’s refugee determination procedures from the perspective of refugees and their advocates. You will see the system working as it should as well as its shortcomings for those who “fall through the cracks”.  As you watch the video, consider all the elements required to represent a claimant in a refugee hearing Convention refugee: - A) A refugee has a well-founded fear of persecution B) A refugee must demonstrate a nexus to a Convention ground C) A refugee fears persecution, which is a serious deprivation of a fundamental human right 1951 Refugee Convention international treaty that defines who qualifies as a refugee, outlines their rights, and establishes the legal obligations of states to protect them. It was adopted in response to the aftermath of World War II to provide protection to people fleeing persecution and conflict. Definition of a Refugee: A refugee is defined as someone who has a well-founded fear of persecution due to their race, religion, nationality, membership in a particular social group, or political opinion, and is unable or unwilling to return to their home country because of this fear. Non-Refoulement: The principle of non-refoulement, which is central to the convention, prohibits states from returning refugees to a country where their life or freedom would be threatened. Rights of Refugees: The convention grants refugees various rights, including access to courts, education, employment, and public assistance. Refugees are also entitled to protection from penalties for illegal entry if they are fleeing persecution. State Obligations: Countries that have signed the convention are obligated to protect refugees and uphold their rights under international law. This includes allowing them to seek asylum and ensuring that they are not returned to unsafe countries. Cessation of Refugee Status - As noted in Desloges and Sawicki (at § III E), refugee protection is not necessarily intended to be permanent. - Refugees may face the loss of their protected person status if they are not yet a Canadian citizen and the IRB decides that they have re-established  themselves in their home country or ‘re-availed” themselves of their home country’s protection. - A Convention refugee returning to their country of origin may be at risk of having cessation invoked against them provided that their actions are voluntary and intentional, and not accidental or occasional. Convention refugees who have obtained refugee protection in another country of residence or have reacquired their nationality, are more likely to be subject to cessation proceedings in Canada, even when they are already Canadian permanent residents - court adopted the three requirements under the Convention as part of its analysis: voluntariness (the refugee acted voluntarily), intention (the refugee intended by his action to re-avail himself of the protection of the country of his nationality, re-availment (the refugee must actually obtain such protection) Refugee sponsorship - Shauna Labman, a Canadian expert in refugee sponsorship and resettlement, has recently suggested that rather than replicating the Canadian sponsorship model, it may be time to reorient the program to ensure that it more sustainably achieves the goals of refugee protection and integration in host societies. Other scholars have called for “adjustments” to Canada’s private sponsorship program and have proposed a series of practical recommendations to improve it. Refugee resettlement - process by which refugees, who cannot safely return to their home country or stay in their first country of asylum, are relocated to a third country that offers them protection and the opportunity to rebuild their lives - According to annual statistics released by the UNHCR in January 2021, an estimated 1.44 million refugees were in urgent need of resettlement globally last year but only tiny fraction of that population can expect to be offered the opportunity of resettlement in a new country. The vast majority of the world’s refugees languish in camps or transit countries in the global South. - Throughout the pandemic Canada was one of just 20 countries that resumed resettlement programs and continued to process and receive refugees. Nevertheless, the lockdowns and travel restrictions meant that Canada fell far short of its 2020 target of nearly 32,000 refugees.  - Canada’s Refugee and Humanitarian Resettlement Program is administered by the Department of Immigration, Refugees and Citizenship. An annual resettlement range is established by the Immigration Minister following consultations with provincial governments. Over the past decade about three in five refugees arriving in Canada have been admitted under the private sponsorship program. - In order for an application for resettlement to be approved, the onus is on the claimant to prove that they satisfy all elements of the Convention refugee definition. - The IRPA significantly broadened the scope of refugee protection beyond the definition of a Convention refugee, and brought the Canadian law more in line with international human rights conventions. Derogable rights may be limited in states of emergency, but not non-derogable rights such as the right to life and the right to be free from torture or cruel and unusual treatment or punishmen - There are two main classes of refugees under the Refugee and Humanitarian Resettlement Program: The Convention refugee abroad class and the humanitarian – protected abroad class. Resettled refugees come to Canada in the following ways: through the federal Government-Assisted Refugee (GAR) Program (which includes the Joint Assistance Sponsorship Program) - This program is run by the Canadian government and helps refugees who need support to settle in Canada. - It includes the Joint Assistance Sponsorship Program, where the government partners with private sponsors to provide additional help to refugees with specific needs, such as those with disabilities. with the assistance of civil society groups through the Private Sponsorship of Refugees (PSR) Program or - civil society groups, like community organisations or churches, sponsor refugees. - These private sponsors help refugees settle in Canada by providing financial and emotional support, such as housing and integration assistance. - Private sponsors enter into an undertaking with the Canadian government, where they agree to be responsible for income support and medical costs for the refugee(s) for one year after the arrival of the refugee(s). Besides their legal obligations under the  undertaking, sponsors also help the families adjust to their new community - Privately sponsored refugees often have relatives already in Canada and are welcomed to Canada by a group of civic-minded sponsors dedicated to helping them succeed, where as government-assisted refugees are left to the mercy of settlement organisations and publicly available programs through the Blended Visa Office–Referred Program, which combines government and private support - combines both government and private support. - Refugees are referred to this program by the government and UNHCR and receive assistance from both the government and private sponsors during their resettlement process. PR AND CITIZENS CAN SPONSOR REFUGEES IN 3 WAYS (privately sponsored resettlement): - Group of 5 (G5 members are usually one-time sponsors who get together to respond to a special situation. There is no requirement for prior experience with refugee sponsorship. (are PR or citizen, live in the host country, not default in other sponsorship undertaking) - Member of community sponsor organisation - Sponsorship agreement holder arrangement (organisation signs agreement with minister of ircc to resettle refugees on ongoing basis) (complex system of annual quotas for SAHs, which dictates how many refugees can be sponsored by each organization, SAHs do not need to submit an applicant's proof of refugee status in order to undertake the sponsorship.) In order to do this Must have… - Financial capacity to support refugee for 12 months - Provide settlement plan (financial and settlement responsibilities) Who is an eligible applicant? - Has a sponsoring group - Meets eligibility criteria (being outside canada, meeting definition of refugees) (conventional refugees - have a well founded fear of persecution, asylum class- outside of country of origin and affected by war or human rights) / unable to integrate and return to home country, and will settle in canada) - Admissibility (positive decision from officer, pass medical/security/criminality screenings) Questioning Techniques & Credibility in the Asylum Context - Refugee determinations often turn on a single question: Is the refugee claimant telling the truth? While there are other factors that refugee adjudicators must consider, determining whether the claimant's story is credible remains central to virtually all refugee hearings Cochran’s Interviewing Skills for Legal Professionals (Chapter 9) Why a trauma-informed approach? Using a trauma-informed approach to interviewing clients is beneficial to both the legal practitioner and the clients for many of the following reasons: Results in better quality and quantity of information obtained Helps clients feel empowered Minimizes the risks of re-traumatization The Four Rs of a trauma-informed approach - Realise, recognize, respond, resist Vicarious trauma: is the emotional residue from hearing trauma stories and witnessing the pain experienced by another person. Vicarious trauma can have long term impacts on individuals including withdrawal, frequently feeling angry or agitated, inability to focus Non linear narratives: - client skips from one topic to another rather quickly. Snapshots from American “Abolitionists” - UCLA historian Kelly Lytle Hernández offers a historical perspective on the end of deportee imprisonment in the US and the corresponding rise of immigrant detention over a hundred years ago. - In 1896, the US Supreme Court found provisions of the Chinese Exclusion Act void. In Wong Wing v. The United States (1896), the Court found that the imposition of mandatory imprisonment and hard labour for unlawful entry or presence was “not consistent with our theory of government”. At the same time, however, the Court sanctioned a separate administrative detention scheme with fewer due process safeguards. Lytle Hernández documents how that decision became a “carceral artifact” – with longstanding implications today. Immigration detention in the Canadian context when a government holds an individual in custody because of their immigration status. This typically happens if a person is believed to be a flight risk, poses a security threat, or needs to be identified The factors are set out in the IRPR (s. 244), in the following four categories: flight risk, danger the public, identity not established, and other factors. There is no statutory limit (or even soft law limit) to the length of immigration detention in Canada (90 days for France; while for EU member states, the upper limit is 18 months). Ebrahim Toure was released in September 2018 after spending 5 ½ years behind bars because CBSA believed he would not show up for removal if it was ever arranged. He spent the first 4 ½ years in a maximum security jail. Immigration detainees wear orange jumpsuits, are regularly strip searched, and are subject to the same restrictive rules as prisoners convicted of criminal offenses Stateless, Kashif Ali spent more than seven years in a maximum security jail because Canada was unable to deport him. He endured beatings from guards, near-daily lock-downs and one stretch of solitary confinement that lasted 103 days. Conditionally released in 2017, his health has deteriorated – he suffers from depression and anxiety. Toronto East Detention Centre: a “remand” facility that is overcrowded, under-staffed, and under-resourced. Approximately 1/3 of immigration detainees are held in prisons. A new and improved “immigration holding centre” is being constructed in BC: a response, in part, to the death of Mexican national Lucia Vega Jimenez in 2014. Jiminez was found hanging  in a shower stall, hours after a contracted security guard falsified room check records Canada is one of just a handful of states that have legislated mandatory/virtually automatic detention for non-citizens: designated foreign nationals and security certificate cases. In criminal law, sentencing incorporates broad ranges, tailored to individual’s circumstances. Even violent crimes and organized criminality frequently attract sentences of less than two years. Human rights norms affirm the primacy of liberty: Magna Carta, 1215 - “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way…” Binding international legal standards (ICCPR; American Declaration) - Everyone has the right to liberty - Everyone has the right to recognition everywhere as a person before the law - All persons are equal before the law and are entitled without any discrimination to the equal protection of the law… Revised Deliberation No. 5 on deprivation of liberty of migrants (UN Working Group on Arbitrary Detention, 7 Feb. 2018) 7. The right to personal liberty is fundamental and extends to all persons at all times and circumstances, including migrants and asylum seekers, irrespective of their citizenship, nationality or migratory status… 8. The prohibition of arbitrary detention is absolute, meaning that it is a non-derogable norm of customary international law, or jus cogens. Arbitrary detention can never be justified, including for any reason related to national emergency, maintaining public security or the large movements of immigrants or asylum seekers. This extends both to the territorial jurisdiction and effective control of a State. 10… Migrants must not be qualified or treated as criminals, or viewed only from the perspective of national or public security and/or health. Canada Border Services Agency: Quarterly detention and alternatives to detention statistics (2023 to 2024), online Persons subject to a detention review: 5,793 Total persons in detention (daily average): 265  Average length of detention (days): 16.5 days Detention in IHCs: 4,683 (81%) Detention in provincial facilities: 1052 (18%) Detention in other facilities: 818 (14%) Length of detention 24 hours or less: 1907 25-48 hours: 594 3-9 days: 955 10-39 days: 1307 40-99 days: 99+ days: 401 91-180 days: 245 181-365 days: 74 365+ days: 16 The most common grounds for immigration detention in 2023 The vast majority of non-citizens are detained on the basis of flight risk There were 11 cases of security inadmissibility detention There were 7 cases of inadmissibility based on human/international rights violations 130 persons were detained on grounds of serious criminality/organized criminalit