Category Archives: BC PNP

Humanitarian & Compassionate Applications – The Establishment Factor

Subsection 25(1) of Canada’s Immigration and Refugee Protection Act provides immigration officers with the flexibility to grant on humanitarian and compassionate (“H&C”) exemptions to overcome the requirement of obtaining a permanent residence visa from abroad and/or to overcome class eligibility requirements and/or inadmissibilities.

H&C applications may be based on a number factors, including:

  • establishment in Canada;
  • ties to Canada;
  • the best interests of any children affected by their application;
  • factors in their country of origin (this includes but is not limited to: Medical  inadequacies, discrimination that does not amount to persecution, harassment or  other hardships that are not related to a fear of return based on refugee determination factors;
  • health considerations;
  • family violence considerations;
  • consequences of the separation of relatives;
  • inability to leave Canada has led to establishment; and/or
  • any other relevant factor they wish to have considered not related to a fear of return based on refugee determination factors.

Establishment in Canada

Citizenship and Immigration Canada’s Inland Processing Manual (the “Manual“) provides that the degree of an applicant’s establihsment may be measured with questions such as the following:

  • Does the applicant have a history of stable employment?
  • Is there a pattern of sound financial management?
  • Has the applicant remained in one community or moved around?
  • Has the applicant integrated into the community through involvement in community organizations, voluntary services or other activities?
  • Has the applicant undertaken any professional, linguistic or other studies that show integration into Canadian society?
  • Do the applicant and their family members have a good civil record in Canada? (e.g. no criminal charges or interventions by law enforcement officers or other authorities for domestic violence or child abuse).

Establishment and Legal Status in Canada

Being in Canada without status does not automatically lead to the non-application of H&C factors.  For example, remaining in Canada pending the outcome of legal procedures, including after a failed refugee claim, would not necessarily be a negative factor.  However, “flouting the law and ignoring lawful orders to leave the country” will likely result in the establishment factor being negative.

As the Federal Court of Appeal stated in Canada (Minister of Citizenship and Immigration) v. Legault, 2002 FCA 125:

In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. (emphasis added)

In Molina v. Canada (Citizenship and Immigration), 2014 FC 530, the Federal Court added that:

When establishment is a function of having deliberately chosen to evade removal, it should not provide an applicant with an advantage over those who have complied with the law.

Circumstances Beyond the Applicant’s Control

The Manual provides guidance to officers in determining whether positive consideration may be warranted where the period of inability to leave Canada were beyond the applicant’s control, and where there is evidence of a significant degree of establishment in Canada such that it would cause the applicant unusual or disproportionate hardship to apply from outside Canada.  It states:

Circumstances beyond the applicant’s control 

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

If general country conditions are considered unsafe due to war, civil unrest, environmental disaster, etc., the Minister of Public Safety may impose a temporary suspension of removals (TSR) on that country.

Circumstances Not Beyond the Applicant’s Control

An applicant, in Canada for a number of years, is unwilling to sign a passport application or provide particulars for a passport application.

An applicant wilfully loses or destroys their travel document(s).

Applicant goes “underground” and remains in Canada illegally.

The Upcoming Litigation Over Immigration, the TFWP, and Privacy

Last month, a British Columbia Provincial Nomination Program (“BC PNP”) officer requested that one of my employer clients provide payroll documents for individuals who were not a part of the BC PNP application.  We politely pointed out that the employer could not do this without the third party employees’ consent, as to provide the documents without their consent would be contrary to BC’s Personal Information Privacy Act.  Alternatively, the BC PNP had to at least provide the statutory authority to compel the production of these third party documents  The British Columbia Office of the Information & Privacy Commissioner confirmed that we were correct.  The BC PNP officer respected our position, and the events left me confident in the Province of British Columbia’s respect for personal privacy.

We were of course not the first to navigate the complicated intersection between the government’s administering its immigration programs the right to privacy, which pursuant to numerous Supreme Court of Canada is a quasi-constitutional right.  For example, as noted in the following “Findings under the Privacy Act,” Citizenship and Immigration Canada (“CIC”) recently agreed with the Office of the Privacy Commissioner of Canada that it was an unreasonable breach of privacy for CIC to request the tax information of potential employers of Live-in Caregivers:

Three individuals who wished to employ live-in caregivers from the Philippines complained to this Office that the Canadian Embassy in Manila was asking them to provide sensitive income tax information before it would issue visas to their prospective caregivers. The individuals were worried about sending tax documents containing their social insurance numbers (SINs) and detailed information about their financial situation to a foreign country, especially with identity fraud having become such a major concern.

Citizenship and Immigration Canada (CIC) explained that the Live-In Caregiver Program (LCP) brings qualified caregivers to Canada in situations where there are no Canadians or permanent residents available to fill certain positions. Canadians wishing to hire a caregiver from abroad are required to have their job offer validated through Human Resources Development Canada (HRDC) and to sign a form declaring that they can financially support the person they will employ.

After the job offer was validated by HRDC, the Visa Section of the Canadian Embassy in Manila asked the prospective employers to send their Notice of Assessment for the last two years, their T-4 slips and a letter from their employer confirming employment.

CIC claimed that the information was necessary to determine the bona fides of an employment offer and to confirm that the employers were financially capable of supporting a caregiver.

When questioned about its authority to collect income tax information for the purpose of issuing visas to third parties, CIC referred to section 203 of theImmigration and Refugee Protection Regulations. A review of that document indicated that the visa officer must determine if the job offer is genuine and if the employment of the foreign national is likely to have a neutral or positive economic effect on the labour market in Canada.

In the previous Annual Report, the former Commissioner stated his position concerning the collection of income tax information without legislative authority. He explained that he found it untenable that an income tax return can be demanded from an individual for a purpose other than that required by law. Canadians should never be required to compromise a fundamental right in order to do business with the Government.

This Office presented those arguments to CIC and, as a result, the Embassy in Manila confirmed that it has ceased asking for income tax information for the purpose of issuing visas to live-in caregivers.

I highlighted the above portion of the report because I think it is an especially salient observation.

The Reforms to the TFWP

On June 20, 2014, the Conservative Government of Canada introduced significant reforms to the Temporary Foreign Worker Program (“TFWP”), and released a 41-page PDF outlining the future of the program.  Buried on page 17 of the PDF is the following statement:

Furthermore, as of Fall 2014, ESDC will be able to compel banks and payroll companies to provide bank records and payroll documents to help inspectors verify that employers are complying with the rules of the TFWP.

Apparently the Government of Canada has a sufficient enough distrust of Canadian businesses that it believes it is necessary to bypass employers and require that banks provide employee payroll information instead.

The reason that reform of the TFWP is being delayed to the fall of 2014 is presumably because the Government of Canada needs to amend the Immigration and Refugee Protection Regulations in order to compel banks and payroll companies to disclose their clients sensitive information.

PIPEDA and R v. Spencer

Section 7(3) of Canada’s Personal Information Protection and Electronic Documents Act, SC 2000, c 5 (“PIPEDA”) provides that an organization may disclose information about an individual without their consent if:

(3) … an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

(a) made to, in the Province of Quebec, an advocate or notary or, in any other province, a barrister or solicitor who is representing the organization;

(b) for the purpose of collecting a debt owed by the individual to the organization;

(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province;

Until recently, many, including apparently the Government of Canada, believed that PIPEDA s. 7(3) provided the legislative authority for the Government of Canada to compel organizations to disclose personal information of third parties without their consent.  However, on June 13, 2014, the Supreme Court of Canada (the “SCC”) held in R v. Spencer, 2014 SCC 43 (“Spencer“) that the right to privacy in Canada is stronger than that.  

In Spencer, the Saskatoon Police Service relied on s. 7(3)(c.1)(ii) of PIPEDA to obtain without a warrant account information about an individual from an Internet Service Provider.  The accused argued that this breached s. 8 of the Canadian Charter of Rights and Freedomswhich provides that:

Everyone has the right to be secure against unreasonable search or seizure.

As noted by the SCC in Spencer:

Under s. 8 of the Charter , “[e]veryone has the right to be secure against unreasonable search or seizure.” This Court has long emphasized the need for a purposive approach to s. 8 that emphasizes the protection of privacy as a prerequisite to individual security, self-fulfilment and autonomy as well as to the maintenance of a thriving democratic society.

In determining that s. 7(3) of PIPEDA did not authorize the police to compel production of third party documents, the Supreme Court of Canada determined that:

“Lawful authority” in s. 7(3) (c.1)(ii) of PIPEDA  must be contrasted with s. 7(3) (c), which provides that personal information may be disclosed without consent where “required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records”. The reference to “lawful authority” in s. 7(3) (c.1)(ii) must mean something other than a “subpoena or [search] warrant”. “Lawful authority” may include several things. It may refer to the common law authority of the police to ask questions relating to matters that are not subject to a reasonable expectation of privacy. It may refer to the authority of police to conduct warrantless searches under exigent circumstances or where authorized by a reasonable law: Collins. As the intervener the Privacy Commissioner of Canada submitted, interpreting “lawful authority” as requiring more than a bare request by law enforcement gives this term a meaningful role to play in the context of s. 7(3)  and should be preferred over alternative meanings that do not do so. In short, I agree with the Ontario Court of Appeal in Ward on this point that neither s. 487.014(1) of the Code, nor PIPEDA  creates any police search and seizure powers: para. 46.

The notion that “Lawful Authority” requires exigent circumstances or that a law be “reasonable” will likely be a significant hurdle for the Government of Canada to overcome should it actually try to compel banks to provide their clients information without consent.

The Erosion of Your Privacy

Of course, this somewhat surprising flippant attitude towards privacy is not only occurring in the immigration context.  In the tax context, the 2014 omnibus Budget Implement Act which will require Canadian banks to provide their customers’ account information to the United States Internal Revenue Agency.  As Professor Arthur Cockfield recently wrote in the Globe and Mail, the threats to the privacy of millions in Canada risks being compromised:

The proposed law applies to a broad class of U.S. expatriates and Canadians who could now be subject to fines, interest penalties, criminal sanctions, and denial of entry into the United States. Under the proposed approach, Canadian banks will have to look to their records on birth places, residences, Social Insurance Numbers and other information to see if any “U.S. person” holds an account. “U.S. person” is a defined term that includes many more people in Canada than almost anyone realizes. It includes U.S. citizens and non-citizens with various personal or economic ties to the United States (for example, former green card holders now residing in Canada).

Canadian snowbirds who travel to the United States for part of each year may also be caught in the tax web if they are deemed to be U.S. persons under facts and circumstances tests. So-called ‘accidental Americans’, including Canadians with U.S. citizen parents who have never stepped foot in the United States, are also swept up in the net. Finally, any Canadians who jointly hold accounts with a U.S. person for family or business purposes will see their sensitive financial information shipped south of the border too.

All Canadian businesses that are partly owned by a “U.S. person” will also have their sensitive financial account information disclosed to the IRS. This includes confidential information that, if improperly revealed to competitor firms, could harm the ability of Canadian businesses to compete against U.S. firms. In light of recent disclosures surrounding U.S. state-sponsored corporate espionage, the Canadian business community should be yelling to the rooftops about this commercial confidentiality concern.

The concerns that I have over the continued erosion of privacy, and the legislative procedural manner in which it is occurring, are perhaps best summarized by Chantal Bernier, Assistant Privacy Commissioner of Canada, who, when speaking before the Senate Standing Committee on Transport and Communications said that:

 

With respect to Parliamentary oversight, one of our consistent concerns about the API/PNR program is the lack of transparency and the degree to which the details of the program are contained in regulations and are negotiated secretly with other countries.  While we understand that international negotiations require a degree of secrecy, transparency requires that secrecy be kept to a minimum so that law abiding citizens have a proper understanding of the system put in place and the level of intrusion that is proposed.

Fundamental questions about the API/PNR Program such as the data elements that are provided to CBSA, how this information can be used, with whom it may be shared and how long it is retained cannot be found in the Customs Act.  To a large degree, these matters have been shaped by negotiations with other jurisdictions, most notably with the European Union.

A new PNR Agreement is currently being negotiated with the European Union.  Based on the Agreement between the EU and US that was approved earlier this year, we are concerned that, under a new Canada-EU Agreement, the amount of information collected by CBSA will increase, it will be used for more purposes, and it will be retained longer.

In doing research for this blog post,I stumbled upon the following report from the Office of the Privacy Commissioner of Canada, which gives rise to additional concerns.

A Canadian woman wanted to hire a Bangladeshi man as a live-in caregiver for her child. The man applied for a work permit at the Canadian High Commission in Dhaka and supplied all the necessary documents.

To strengthen the man’s application, the woman asked her MP to send a letter of support to the High Commission. She also asked the MP to attach to his letter copies of personal documents such as her passport and federal income tax assessment, which included her date of birth, Social Insurance Number and other personal information.

The MP’s office forwarded all this information to officials of Citizenship and Immigration Canada at the Canadian High Commission in Dhaka.

The man’s application for a work permit was refused. Following standard practice, the Immigration official returned to the man the entire contents of his file, which included not only his documents, but also the woman’s personal documents sent by the MP’s office.

According to the woman, the man then shared her personal information with family and friends. She was concerned that this disclosure could result in identity theft or jeopardize her safety if she travelled to Bangladesh. She complained to our Office.

Citizenship and Immigration acknowledged that it did not have the complainant’s consent and that her personal information should not have been disclosed to the man. At our request, officials apologized to the complainant in a letter.

Language Requirements for Immigration (IR-11)

During the time that I have been writing this blog the most frequently asked question that readers have asked me is whether their IELTS band scores are sufficient for certain immigration programs.  Some people have even offered to book initial consultations with me just so that I would review their IELTS scores.  This has always been somewhat surprising to me given that the Citizenship and Immigration Canada (“CIC”) website publishes each of its program’s respective language requirements in a clear and concise manner.

Indeed, it is not just members of the general public that seem to be confused.  As shown in the exchange below, which I obtained through an Access to Information Act request, some immigration lawyers are unclear of the requirements.  (Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.)

Question – May 21, 2013

Dear Sir/ Madam,

I have been referred to your office, by Karen Flynn, of NHQ-Immigration in Ottawa, her phone number is _______.

I practice immigration law in Toronto, and I have the following question, regarding the Federal Skilled Worker Class, in light of the recent changes, in effect, as of May 4, 2013:

  • the IETLS benchmark is CLB 7, i.e. 6 points, for each ability. If the results of a foreign national are, for example, in 1, or 2, or 3 abilities in the CLB 8 or higher, but 1 ability, or 2, or 3, are at CLB 7level, can I give 5 or more points per ability, for the CLB 8, or higher, and 4 points, for the CLB 7 result, or once one of the results is in the CLB 7 area, all abilities can only receive 6 points, i.e. 16 points.

Basically, can I give points for each ability depending on where the ability is in the CLB range, e.g. 2 abilities are 6.0, and 2 abilities are 6.5, is the assessment 18 points or 16 points?

I look forward to your response.

Best regards,

Answer – May 22, 2013

Thank you for your inquiry.

As of May 4, 2013, all applicants under the Federal Skilled Worker Class must demonstrate that they meet the minimum language proficiency threshold of CLB 7 in all four language abilities.

As outlined in section 11.2 of the OP 6C operational manual, officers will award points for first official language proficiency based on the applicant’s demonstrated CLB level per language ability. For example, an applicant who had obtained CLB 7 in two language abilities and CLB 8 in the other two language abilities would be awarded a total of 18 points for first official language proficiency (4 points for each language ability in which their proficiency meets the minimum threshold+ 5 points for each language ability in which their proficiency exceeds the minimum threshold by one benchmark level).

There are three aspects of CIC’s response to the question above that I wish to elaborate on.  The first is where individuals can locate information about a program’s language requirements on the CIC website.  The second is the distinction between the Canadian Language Benchmark (“CLB”) and the IELTS bandscores, and how to calculate equivalence.  Finally, I will also address whether there are language requirements to becoming a temporary foreign worker.

The Languages Manual

The CIC website publishes all of its publicly available program manuals on its website here.  While there are some private manuals that can only be accessed through Access to Information Act requests, they probably only significantly impact to 5 – 10% of people interact with CIC. 

Operational bulletins and manuals - language

As shown in the image above, in order to simply its language requirements, CIC has consolidated its language requirements into a single, online manual on its website.  The languages manual is divided into the following sections:

Except for the language requirements for the Temporary Foreign Worker Program (“TFWP”), which is discussed below, the manuals above comprehensively describe most of the language requirements for CIC’s various programs.

CLB vs. IELTS

It is important that prospective applicants distinguish between their IELTS scores and the CLB.  This can be especially confusing to people considering that the scoring system looks similar.

The CLB is the national standard used in Canada for describing, measuring, and recognizing the English language proficiency of adult immigrants and prospective immigrants for living and working in Canada. It classifies English language ability according to 13 language benchmarks.

The IELTS are one of the language tests that the Respondent has designated as being an acceptable test to asses an applicant’s CLB.  There are nine IELTS band levels, and CIC has produced numerous charts on its website showing equivalencies of the 9 IELTS bands to the 13 CLB levels.

Language test equivalency charts

The distinction is important.  I occasionally meet individuals who did not apply for the Canadian Experience Class (“CEC”) because they were told that they needed a 5.0 in all language abilities.  While this is technically true, the “5.0 requirement” refers to CLB, not IELTS.  As shown above, an IELTS Listening Score of 4.0 is equal to a CLB score of 5.0.  Hence, these individuals erred in assuming that they were not eligible.  As the CEC has application caps, delaying applying to unnecessarily re-write the IELTS can have significant detrimental consequences.

The Temporary Foreign Worker Program

Many people mistakenly assume that the TFWP does not have language requirements.  Work Permit applicants accordingly often question CIC’s authority to request proof of language ability during the Work Permit application process, which is becoming increasingly common.

Section 8.3 of the CIC’s Temporary Foreign Worker Manual states:

 R 200 (3) (a) states that:

“An officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.”

Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job.

Additionally, the officer can consider:

  • the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
  • terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”

An officer should NOT consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance. Such a consideration is beyond the scope of the current legislation.

The same principles respecting official language capability and the applicant’s ability to perform the work sought apply irrespective of the skill level of the intended occupation. There is no separate standard or criteria for applicants at NOC skill levels C or D.

An applicant’s language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMO requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that h/she would be able to perform the work sought.

 

 

Questions & Answers – Student Work Experience and CEC (IR-10)

The Canadian Experience Class (“CEC”) allows individuals with one-year skilled work experience in Canada to acquire permanent residency.  In November 2013, the Government of Canada through Ministerial Instructions introduced significant limitations to the program.  We sent a newsletter to our subscribers outlining the changes to the CEC, and  I have reproduced on my blog a copy of that newsletter article.  As well, in December 2013 The Canadian Immigrant Magazine published an article of mine in which I outlined alternate programs for people who became ineligible to apply to the CEC.

In a previous blog post, I also reproduced an Access to Information Act result in which Citizenship and Immigration Canada confirmed to an immigration representative that work experience for a foreign employer counts towards the CEC’s work experience requirement.

In today’s post I will be reproducing a similar Q&A between an immigration representative and Citizenship and Immigration Canada regarding whether work experience obtained during full-time studies counts towards the CEC’s work experience requirement.  I will also be reproducing part of Citizenship and Immigration Canada’s Overseas Processing Manual 25A – Canadian Experience Class (“OP25A”), which discusses the issue.

Full-Time Study, Summer Breaks, and the Canadian Experience Class

Section 87.1(3)(a) of the Immigration and Refugee Protection Regulations  provides that:

any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience [for the CEC]

It is clear that work experience obtained during full-time study will not count towards the CEC work experience requirement.  It is therefore apparent that work obtained on an off-campus work permit or a co-op work permit would not count towards the CEC.  However, what about work experience gained when a person holds both a Post-Graduate Work Permit and a Study Permit?  Or what about work experience obtained during summer break?  Do either of those count towards the CEC requirement?

(Please note that what I have reproduced below should not be viewed as legal advice.  The reproduction of question and answer has not occurred with the affiliation of the Government of Canada, nor with the endorsement of the Government of Canada.)

Question – May 14, 2013

Dear Sir/Madame,

I have had several inquiries from students who have worked full-time on post-grad work permits (obtained after they obtained their Bachelor degrees) and have at the same time gone back to school to complete their Masters. Can the experience they’ve gained under their post-grad work permits be used for their CEC application if they were completing a full-time Masters program at the same time when they gained the work experience? Please note that the experience was not gained based on an off-campus work permit.

Thank you for your time and assistance in this matter. !look forward to hearing from you soon.

Sincerely,

Answer – May 16, 2013

Pursuant to paragraph 87.1(3)(a) of the Immigration and Refugee Protection Regulations, any period of employment during which the foreign national was engaged in full-time study shall not be included in calculating a period of work experience.

As such, work experience obtained on a post-graduate work permit while the individual is engaged in full-time study will not count as a period of qualifying work experience under the Canadian Experience Class

Follow Up Question- May 21, 2013

Thank you very much for your reply. During the summer period when she was on holidays, the individual was not engaged in full-time study. Would we be able to count this as work experience under the post-graduate work permit?

Follow Up Answer – May 22, 2013

When assessing whether an applicant under the CEC has met the work experience requirement, officers will generally assume that applicants have two weeks of leave within a given 52-week period in which they were engaged in qualifying full-time (or the equivalent in part-time) work. Work experience obtained during a summer holiday break while engaged in full-time study during the normal academic year would not be counted as a period of qualifying work experience under the CEC.

January 30 Changes to CEC Manual

On January 30, 2014, Citizenship and Immigration Canada attempted to publicly clarify the issue by updating OP25A.  Section 10.11 of the OP25A now states:

Applicants must have 12 months of full-time, Canadian skilled work experience (or the equivalent in part-time experience) in one or more NOC 0, A, or B occupations within the 36 months preceding the date on which their application is received [R 87.1(2)(a)].  Work experience need not be continuous under the CEC.

In addition, during that period of employment, the applicant must have:

  • performed the actions as set out in the lead statement for the occupation(s), as set out in the occupational description of the NOC [R 87.1(2)(b)]; and
  • performed a substantial number of the main duties, including all of the essential duties, of the occupation(s) as set out in the occupational description of the NOC [R 87.1(2)(c)]

Note: The “Employment Requirements” listed in the NOC occupational description are not applicable.

Any period of employment during which the applicant was engaged in full-time study will not be included in calculating the period of qualifying work experience (e.g. work experience gained through co-op work permits, off-campus work permits while a full-time student, and on-campus work permits). [R87.1(3)(a) Officers should verify the work permit information in GCMS.

Any period of self-employment or unauthorized work experience will not be included in calculating the period of work experience [R87.1(3)(b) ] A person who has worked in Canada without authorization has failed to comply with A30(1), and on that basis may be found to be inadmissible under A41.

Note: Work experience acquired while under implied status will be considered as eligible work experience under the CEC, provided that the applicant continued to work in Canada under the same conditions as their original work permit until a decision was made on their application for a work permit extension.

An allowance for a reasonable period of vacation time will generally be made in calculating the period of qualifying work experience (e.g., a two-week period of paid vacation leave within a 52-week period in which the applicant was engaged in qualifying work experience). An allowance for normal vacation time cannot be used as a substitute or proxy for meeting the in-Canada element of the work experience requirement (i.e., work experience obtained outside Canada will not be considered as though an applicant had been on a period of vacation in order to count as part of the period of in-Canada work experience).  While officers will account for a reasonable period of vacation time in calculating the period of qualifying work experience in Canada, each application is considered on its own merits with a final decision based on a review of all the information available to the officer at the time of the decision.

The applicant does not have to be employed at the time of the application, but they must have held temporary resident status during the period of qualifying work experience acquired in Canada [R87.1(3)(c)]

Note:  An applicant under the CEC does not need to hold a work permit.  Applicants who are authorized to work in Canada under R186 are eligible to apply under the CEC, but must provide documentation with their application establishing that they had legal temporary resident status in Canada (e.g., a visitor record).

Although it is beyond the topic of today’s post, it should be noted that in a new section 10.12 of OP25A Citizenship and Immigration Canada has finally clarified what self-employment means for the purpose of s. 87.1(e)(b) of the Immigration and Refugee Protection Regulations.

Post June 1, 2014

As recently noted on this blog, Citizenship and Immigration Canada is overhauling the study permit regime. The Department will be doing away with off-campus, co-op, and integral work permits.  Instead, study permits will automatically authorize the holder to work off-campus for up to 20 hours per week during the academic session and full-time during scheduled breaks without the need to apply for a separate work permit.  As well, international graduates will be authorized to work full-time after their studies are completed until a decision is made on their application for a Post-Graduation Work Permit.

As the above Q&A and reproduction from OP25A should explain, notwithstanding the change in work permit documentation, it is only after international students graduate that their work experience can count towards the CEC.

 

 

Government of Canada To Terminate Federal Investor Queue

Ever since the Federal Court dismissed a class-action lawsuit over the Government of Canada’s decision to terminate the Federal Skilled Worker Program backlog, many immigration practitioners have wondered if the government would do the same thing to the Federal Immigrant Investor Program (“FIIP”) backlog.  On February 11, 2014, the governing Conservative Party of Canada stated that it would.  The 2014 federal budget, called Economic Action Plan 2014, states that the Government of Canada intends to return and refund “certain” FIIP applicants who applied before February 11, 2014.

The FIIP

Under the FIIP, Canada offers permanent residence in exchange for a guaranteed $800,000 loan (before 2010, the amount was $400,000). The FIIP has long faced criticism.  In 2010, Ryan Rosenberg, a Partner at our firm, wrote  in The Canadian Immigrant that:

Many savvy investors, like my client, look at a $400,000 investment without interest as a lost opportunity and, instead of investing the full amount, seek out financing from one of a number of government-authorized financial intermediaries (“banks”).

For years now, the banks themselves, consultants and lawyers have promoted a financing option at $120,000. For $120,000, a bank will lend an investor funds required for investment under the program and facilitate the investment itself. The investor is also required to sign an assignment of the $400,000 refund from the government to the bank at the end of the five-year term.

The $120,000 covers all interest charges and bank fees associated with the investment and at the end of the five-year term the investor receives no money in return. So where does all that money go?

Based on today’s interest rates (which we know are going up sometime soon), the cost to finance a $400,000 loan for five years is about $1,000 a month in interest alone. So, over 60 months, the cost should run about $60,000. If any of the $120,000 payment is used to bring down the total amount borrowed (think of it like a down payment on your house), the monthly interest payment would also drop. So, if $60,000 of the $120,000 goes to the bank for interest that does seem quite reasonable. Banks are in the business of lending money, after all.

So now we are left with $60,000 — where does that money go?

Commission omission

And it isn’t only $60,000 left in the pool. It’s more like $88,000. Theoretically, it is the provinces who benefit from the $400,000 investments made under this program; in return for raising money, the provinces pay out a commission of $28,000 to the banks and that commission trickles down to the consultant and lawyers (a large number of whom aren’t even Canadian taxpayers) who refer clients to the banks.

Most banks top up that commission and my research shows a range in commissions payable to consultants and lawyers of $23,000 to $58,000. Assuming $58,000 goes to the referring party, $30,000 of the $88,000 remains for the bank in addition to the $60,000 earned in interest, for a total of a $90,000 profit. Although most were forthcoming, when I called one of our banks to ask about their terms under the program, the representative refused to tell me what commission they were willing to pay.

When I explained to her that I wanted to know because I wanted to tell my client where his money was going, she was shocked and appalled that I would be so honest with him. Most people, she explained, don’t tell their clients about the commission. I’ve come to learn that the $120,000 financing option is so popular and is marketed so well that most immigration practitioners rely on it without any consideration to other options or where the money goes.

I’ve also come to learn that the practice of not disclosing commissions to clients is also widespread in the consulting community and quite possibly in the legal community albeit to a lesser extent based on the people I’ve talked to.

In addition to questionable practices surrounding commissions, the Government of Canada began to question whether the FIIP was attracting the type of immigrants that the Government of Canada wanted.  According to CIC, over a 20-year career, an immigrant investor pays about $200,000 less in income taxes than a federal skilled worker and almost $100,000 less in taxes than one live-in caregiver.  A CIC backgrounder further stated that:

A recent survey concluded that immigrant investors have the lowest official language ability of any immigrant category, including refugees. Official language ability is a key factor in the successful integration of immigrants. Data also indicate that immigrant investors are less likely than other immigrants to stay in Canada over the medium to long term.

The existing IIP is of limited economic benefit to Canada. There is very little “new” money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments.

The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested.

Step by Step to Termination

The first change that the Conservative Party of Canada made to the FIIP was to increase the required investment amount from $400,000 to $800,000, and “pause” the intake of applications.  At the same time, Citizenship and Immigration Canada’s Ministerial Instructions II stated that FIIP applications submitted after June 26, 2010, would be processed concurrently (rather than after) applications submitted before.  MII stated:

Federal Immigrant Investor applications received on or after the coming into force of the proposed regulatory amendments to the definitions of “Investor” and “Investment” applicable to Business Immigrants in Division 2 of Part 6 of the Immigration and Refugee Protection Regulations shall, as a category, be processed concurrently with those federal applications received prior to the administrative pause in a ratio consistent with operational requirements.

Operational Bulletin 252 provided even further instructions, stating that for every two $400,000 investor applications visa offices had to process one $800,000.  OB 252 stated:

In addition, effective December 1, 2010, visa offices are to put new applications under the federal IIP – those received on or after December 1, 2010, – into process immediately. New and old (i.e. applications under the federal IIP received before June 26, 2010) applications will be processed concurrently. As a general rule, visa offices should process applications under the federal IIP in a 2:1 case processing ratio of old inventory applications to new applications received on or after December 1, 2010. The concurrent case processing ratio of 2:1 is provided as a guideline only; this ratio may change over time in accordance with operational requirements and may not apply equally to all visa offices depending on the volume of investor class applications processed by a given visa office.

The decision not to process applications in the order that they were received was but one of many examples of Citizenship and Immigration Canada abandoning first-come-first-served processing.

The Backlog

Not surprisingly, the FIIP backlog grew. As of February 11, 2014, it stood at 65,000 individuals.

In January, the Federal Court dismissed an application by several investors who sought that the court order Citizenship and Immigration Canada to expedite the processing of their application.  An affidavit filed in support of Citizenship and Immigration Canada, which we have obtained, provides useful insight into how bogged down visa posts were with applications, and how long it would likely take for many applications to even be opened.

Budget 2014

Perhaps not surprisingly then, Budget 2014 states that:

The Government of Canada is committed to immigration that contributes to job creation and economic growth. In recent years, significant progress has been made to better align the immigration system with Canada’s economic needs.

The current Immigrant Investor Program stands out as an exception to this success. For decades, it has significantly undervalued Canadian permanent residence, providing a pathway to Canadian citizenship in exchange for a guaranteed loan that is significantly less than our peer countries require. There is also little evidence that immigrant investors as a class are maintaining ties to Canada or making a positive economic contribution to the country. Overall, immigrant investors report employment and investment income below Canadian averages and pay significantly lower taxes over a lifetime than other categories of economic immigrants. For these reasons, the Immigrant Investor Program has been paused since July 2012 and the Entrepreneur Program since July 2011.

Economic Action Plan 2014 proposes to end these underperforming programs.

To eliminate the existing backlog, which is diverting resources away from better performing economic immigration streams, the Government intends to return applications and refund associated fees paid by certain federal Immigrant Investor Program and Entrepreneur Program applicants who applied on or before Budget Day.

In place of the current Immigrant Investor Program, the Government will introduce a new Immigrant Investor Venture Capital Fund pilot project, which will require immigrants to make a real and significant investment in the Canadian economy. The Government will also undertake consultations on a potential Business Skills pilot program. Together, these pilots will test new and innovative approaches to business immigration that will better fuel the continued growth of the Canadian economy.

To Follow

As noted above, we were not surprised by the Government of Canada’s decision to both end the FIIP and to terminate the backlog.  It remains to be seen which FIIP applications will be terminated and which ones will not be.  I would be surprised if the Government of Canada terminated applications where investors committed to loaning the Government of Canada $800,000, and expect that it will only be the $400,000 applications which are terminated.  That is just speculation.

It will also be interesting to see what, if anything, Quebec does.  Quebec has its own investor program which is almost identical to the FIIP.  The processing times for it are massive.  What Quebec chooses to do, and/or anything the federal government tries to do on this issue, will be extremely interesting to watch over the next several months.

 

Yes, CIC Can Deny PNP Nominees

Three years ago, I wrote a piece about PNP nominees being denied entry at Ports of Entry.  It proved to be very informative to many people who did not realize that Citizenship and Immigration Canada could refuse immigration applications from provincial nominees.  While it is certainly the case that a provincial nomination certificate will generally lead to Citizenship and Immigration Canada approving a permanent residence application, this is not always the case.

The Immigration and Refugee Protection Regulations provide that an immigration officer may issue a negative substituted evaluation and refuse an application where the officer is not satisfied that a provincial nomination certificate is an appropriate indicator of whether an applicant will be able to successfully establish themselves economically in Canada.  Subsections 87(3) and (4) of the Regulations state that:

Substitution of evaluation

(3) If the fact that the foreign national is named in a [provincial nomination certificate] is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada.

Concurrence

(4) An evaluation made under subsection (3) requires the concurrence of a second officer.

I have reproduced below an excerpt from the recently decided Federal Court decision Kousar v. Canada (2014 FC 12), which illustrates this point.  Because Kousar was a Federal Court case, Citizenship and Immigration Canada’s refusal reasons become part of the public record.  Accordingly, while I was not the lawyer involved with either the initial application or the court case, I am able to obtain and publish the refusal decision.

Kousar involved a refusal based on an officer’s determination that the applicant’s overall IELTS band-score of 3.5 indicated that the applicant was unlikely to establish herself economically in Canada.  The applicant was unable to overcome the officer’s concerns.  The officer’s refusal states:

imm-2181-13_Page_5

It is still the case that most provincial nomination applications will go through.  This case, however, is a useful reminder that applicants should be cautioned about the possibility of Citizenship and Immigration Canada overturning a provincial nomination certificate.

Biometric Travel Headaches

On December 1, 2013, I noted that Canada has introduced a biometric requirement for nationals of certain countries.  I wrote:

Biometrics is the measurement of unique physical characteristics, such as fingerprints and facial features, for the purpose of verifying identity. Citizenship and Immigration Canada’s (CIC’s) goal in requiring that certain foreign nationals provide biometrics is to make it more difficult for individuals to use another person’s identity, and to prevent criminals, deportees and previous failed refugee claimants from (re-)entering Canada using false identification.

By Dec. 11, citizens of the following countries will be required to give their biometrics (fingerprints and digital photograph) when they apply for a visitor visa, study permit or work permit: Afghanistan, Albania, Algeria, Bangladesh, Burma (Myanmar), Cambodia, Colombia, Democratic Republic of Congo, Egypt, Eritrea, Haiti, Iran, Iraq, Jamaica, Jordan, Laos, Libya, Nigeria, Pakistan, Palestinian Authority, Saudi Arabia, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tunisia, Vietnam and Yemen.

Applicants from the above-listed countries will be required to go to a Visa Application Centre (VAC) or a visa office (if a VAC is not available) to give their fingerprints and have their photographs taken. Digital copies will be sent to the Royal Canadian Mountain Police and to CIC, who will then check the fingerprints against criminal, refugee and visa application records. When successful applicants arrive at Canadian ports of entry, the Canada Border Services Agency will use the photograph and/or fingerprint to verify the identity of individuals.

Because of the biometrics requirement, it will no longer be possible for people from the above-mentioned countries to submit paper applications directly to a Canadian embassy or consulate. Instead, these individuals will have to apply in person at VACs. Online applicants will also receive instructions to appear at a VAC to provide their fingerprints.

The biometrics fee will be $85 per person. This fee is in addition to the visa/permit application fee. Individuals will need to give their biometrics, and pay the fee, each time they apply for a visa or permit, making the value of multiple-entry visas that much greater.

CIC’s goal is that by 2014 there will be more than 133 VACs in 96 countries with biometric capabilities. Unfortunately, until this goal is realized, people in countries including Afghanistan, Egypt, Iraq, Iran and Vietnam will actually have to leave their country in order to provide their biometrics at a VAC or Canadian Consulate which has biometric capabilities.

Applicants under the age of 14, over the age of 80, diplomats and people who are already in Canada are exempt from the requirement.

Difficulty Obtaining Biometrics

As stated above, many of the countries whose citizens are required to provide biometrics to visit Canada do not actually have CIC-approved biometric collection facilities.  CIC is requiring that such individuals travel abroad to provide their fingerprints at acceptable facilities.  The CIC website has a useful Google Map which shows individuals where the nearest biometric collection facility is.

As shown below, the citizens of some countries will have some serious travelling to do if they want to apply for a visa to visit Canada.  Ironically, they will likely have to apply for visas to visit countries to give fingerprints to apply for a visa to visit Canada.

Country

Biometric Collection Point?

Nearest Biometric Collection Point

Afghanistan

No

Pakistan

Albania

Yes

 

Algeria

Yes

Bangladesh

Yes

Burma (Myanmar)

No

Cambodia

Cambodia

Yes

Colombia

Yes

Democratic Republic of Congo

No

Kenya

Egypt

Yes

Eritrea

No

Saudi Arabia

Haiti

Yes

Iran

No

United Arab Emirates

Iraq

No

Bahrain

Jamaica

Yes

Jordan

Yes

Laos

No

Vietnam

Lebanon

Yes

Libya

Yes

Nigeria

Yes

Pakistan

Yes

Palestinian Authority

No

Israel, Jordan

Saudi Arabia

Yes

Somalia

No

Kenya

South Sudan

No

Kenya

Sri Lanka

Yes

Sudan

No

Egypt

Syria

No

Israel, Turkey

Tunisia

Yes

Vietnam

Yes

Yemen

No

Saudi Arabia

 

Given this, it is difficult to see how many people from Afghanistan is going to be able to travel to Canada for the foreseeable future.  Is Turkey or Israel really going to admit Syrian nationals for the purpose of fingerprint submission? Will Iranians be able to travel to Abu Dhabi?

As well, citizens of the above countries who are currently abroad may find it difficult to submit their biometrics.  For example, I am representing a Pakistani national currently working in Oman.  He will have to travel to the United Arab Emirates to submit his fingerprints to then apply for a visa to visit Canada.  The table below shows how far apart the biometric collection facilities currently are.

Country

Biometric Collection Point?

Nearest Office

Argentina

No

Ecuador

Brazil

No

Guyana

Chile

No

Ecuador

Japan

No

Mongolia

Russia

No

Georgia, Mongolia

Some individuals have quipped that the decision to implement a biometric requirement prior to ensuring that biometric collection facilities were in place is the Government of Canada’s way of indirectly limiting the number of people from these countries who visit Canada.  Others have even written that there may be racial intonations behind the biometric requirement.  While I do not believe that this was the government’s motivation, it is difficult to see how the current situation will result in anything but the door to Canada being closed completely shut on the citizens of certain countries. 

Change to Age of Dependency Pushed Back

Citizenship and Immigration Canada is informing immigration representatives that the proposed reduction in the age of dependency from 22 to 18 is being pushed back.  (The same is rumoured to true for proposed changes to the study permit system.)

The e-mail that CIC is sending out reads:

Dear Sir/Madam:

Thank-you for your query.

Please be advised that a proposal to reduce the age of dependents from under 22 to under 19 was pre-published in the Canada Gazette Part I on May 18, 2013, along with the proposed regulatory changes to the PGP program.  The proposal to change the age of dependent children will not be coming into force at the time the PGP program re-opens on January 2, 2014.

Trusting this addresses your concerns.

As noted previously in this blog, currently, the children of immigrants may immigrate to Canada with their parents if they are under the age of 22.  As well, young adults over the age of 22 who have been continuous full-time students since turning 22 may also accompany their parents.

Under the proposed change, the maximum age of dependants will be reduced to 18 years of age for all immigration programs.  There will be no exception for full-time post-secondary students.  The only exception will be for those who are financially dependent on their parents due to a mental or physical disability.