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DISCLAIMER:
The following has been prepared by Colin R. Singer, Attorney At Law, for the intended reference by interested individuals and is not intended to create an attorney-client communication. This writing may be reproduced for the personal non commercial use of interested individuals on the express or implied condition that the contents herein are neither edited, modified nor altered in whole or in part, directly or indirectly without the express written consent of the author herein.
(Canadian Immigration and Employment Law)
The right to legislate in the field of immigration in Canada is shared equally between the Federal government and the provinces. Since the Quebec government acquired exclusive rights to establish its own policies and programs in 1981, all of the provinces have since implemented their own immigration programs to select immigrants. In 2007, Ontario was the last province to conclude an immigration agreement with the federal government for the selection of newcomers intending to settle in that province.
But what is the implication when a province issues an approval for a newcomer to relocate to its province and what are the obligations of an applicant to actually settle in that province?
Increasing numbers of applicants are applying for admission to Canada under a provincial program as the current federal skilled worker program has very limited scope for the vast majority of individuals seeking entry to Canada.
A starting point for discussion is section 6 of the Canadian Charter of Rights and Freedoms. Commonly known as the Canadian Charter or the Constitution Act, 1982, it is a series of legislative enactments dating back to the birth of Canada in 1867 that provides Canadians with basic rights in relations with government at all levels and binds all provincial legislative assemblies in Canada including the federal legislature, the Parliament of Canada. Section 6 provides permanent residents and Canadian citizens with the right to live and work in any province in Canada.
Section 6 reads:
- Every citizen of Canada has the right to enter, remain in and leave Canada.
- Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
- to move to and take up residence in any province; and
- to pursue the gaining of a livelihood in any province.
In immigration matters, the implications of section 6 and mobility rights under the Charter is so significant that when a province selects an individual, the relationship becomes one that can be compared at best, to a “contract” with very limited scope and with ample legal rights in favour of the applicant.
Once the province in question selects the applicant, the federal department of Citizenship and Immigration will oversee admissibility issues, including health, security and (the truthfulness of an applicant’s statements).
But after receiving a permanent residence visa and appearing at a port of entry for admission to Canada, once admitted, there is nothing that can come in between an applicant’s mobility rights to live and work anywhere in Canada. The provinces who seek to attract newcomers under their provincial immigration programs are left to create their own enhancements that will attract and more importantly, retain immigrants.
This has been an ongoing challenge for the provinces as they are often used by prospective applicants as back door entry options to Canada, when they do not otherwise qualify for admission under the Federal Skilled Worker program.
Indeed, this has been a serious challenge facing Quebec since 1981, when it created its own comprehensive immigration programs highlighted by a skilled worker program, where employer sponsorship is not required. This year, Quebec will select 55,000 newcomers under all categories representing approximately 22% of the total admissions to Canada. This is by far the most of any province. Historically, the province of Quebec only retains a fraction of the applicants it actually approves. Applicants often decide to forego their contractual relationship to settle in Quebec and elect to settle elsewhere. This is especially the case under Quebec’s immigrant investor program which dominates the Canadian market of intending immigrants. Other provinces like Manitoba that promote its own skilled worker programs where employer sponsorship is not required, retention of immigrants is an ongoing challenge for policy makers.
And under the latest modifications to the Federal Skilled Worker program (November 2008) where an offer of employment by a sponsorship employer is a prerequisite for all except 38 primary occupations even before an applicant is assessed under the federal selection grid, the Provinces of Quebec and Manitoba are receiving increasing interest from prospective applicants who do not meet the strict federal selection rules.
Applicants must be mindful of the requirement to be truthful in their applications. The intention to settle in a province under a provincial immigration program must not be perceived to be untruthful as giving false statements is an offence under the Immigration Act.
But given that Canada’s residence rules are among the world’s most flexible, (applicant’s can theoretically leave Canada soon after becoming permanent residents for a period of up to 3 years while retaining their permanent residence status during this period of long absence),
applicants who are afforded the protection of section 6 under the Canadian Charter, have large latitude to change their minds about where they want to live and work in Canada. There are no obstacles for Canadians to change their province of residence once permanent residence has been firmly established. Government officials in the federal and provincial immigration departments are well aware of this dilemma.
Given the current restrictive application of the federal skilled worker program, the provinces of Quebec and Manitoba will increasingly become attractive entry points to Canada. These provinces will face increasing challenges to retain their immigrants.
Applicants who are contemplating an immigration project to Canada and who cannot qualify under the federal skilled worker program are therefore encouraged to explore their options under provincial nomination programs within the context of the legal rights afforded by section 6 of the Canadian Charter.
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