According to applicants, changes to a federal program to help Canadians hire foreign workers as nannies means families are now dealing with unexplained delays and confusion.
Last year, Citizenship and Immigration Canada implemented changes designed to encourage more Canadian applicants for the job, while onetime Immigration Minister Jason Kenney argued the old program had “mutated” into a family-reunification scheme.
To hire a worker under the program, a family must first show there is a need to hire a foreign worker to fill the job, and that no Canadian applicants were available, by applying for a Labour Market Impact Assessment (LMIA). If the family receives a positive LMIA, it can start applying for a work permit and eventually hire a foreign national for the job.
One family currently pursuing a hiring under the program said before the family applied for a LMIA, it spent four weeks searching for a Canadian nanny. After receiving zero response to their ads the couple then applied for the LMIA. That’s where the process stalled.
Family members didn’t hear back for weeks and phone calls didn’t yield any information. In February, they discovered their application, and those of 23 other families, were missing. The couple had to go through the process again and resubmit the application.
Aside from delays, the changes have brought other frustrations. When asked about the delays, Employment and Social Development Canada responded in an email that in February, 80 per cent of the LMIA applications for foreign workers were processed within 30 days. However, the agency does not separately track LMIA processing times specifically for the caregiver program.
It appears the caregiver program was a victim of politics and the changes were made as part of a “knee-jerk reaction” to wider problems with the Temporary Foreign Worker Program. There are unconfirmed reports that the government through its inside Canada offices is delaying the processing of care-giver applications.
The parties concerned would be using an electronic system called the Express Entry System, made available by the Department of Citizenship and Immigration for the:
- Foreign national to serve the purpose specified in subsection 10.1 (3) of the Immigration and Refugee Protection Act (IRPA) and,
- The Minister to serve the purpose specified in subsection 10.2 (3) of the Immigration and Refugee Protection Act (IRPA)
This electronic system will be useful for the authorities to:
- Whether they should issue an invitation to the foreign national based on the information provided in the expression of interest that the individuals submitted to the Minister
- The rank of the foreign national relative to that of other eligible foreign nationals and,
- Whether the foreign national occupies the rank required for the authorities to issue an invitation AND,
- Automatically transfer the information provided by the foreign national in their expression of interest to the electronic Application for Permanent Residence (e-APR) made by the foreign national under section 12.01 of the Immigration and Refugee Protection Regulations (IRPR)
- This is especially so if the authorities issue an invitation to the foreign national.
Source: Citizenship and Immigration
After spending much of last week hearing expert witnesses expound on the pros and cons of the government’s proposed new anti-terror laws, the House public safety committee began clause-by-clause review of the bill on Thursday.
The government has already signalled that it intends to have Conservative MPs propose three changes, the most significant of which is removing the word ‘lawful’ from the section exempting protests from the new measures. The New Democrats and Green Party have prepared their own motions, and Green Party Elizabeth May plans to bring forward 60 potential tweaks.
Meanwhile, Privacy Commissioner Daniel Therrien will discuss “terrorist financing in Canada and abroad” with Finance committee members, who will also hear from various lawyers, academics and, by video conference from Maryland, Anti-Money Laundering Association senior fellow Amit Kumar.
Elsewhere on the committee front:
- Citizenship and Immigration Minister Chris Alexander takes questions on his bid to crack down on early and forced marriage, as well as polygamy amongst citizenship applicants, permanent residents and refugee claimants.
- Veterans members get briefed on “upcoming commemoration initiatives.”
- The Procedure and House Affairs committee goes behind closed doors to discuss their ongoing review of the MPs’ conflict of interest code.
Source: CBC News
2015-02-04 | 2015 FC 141 | IMM-4550-13
Song v Canada (Citizenship and Immigration)
- An applicant for Canadian Experience class permanent residency cannot be rejected merely because his employment experience does not match the exact wording of the required employment duties listed in the National Occupation Classification [NOC].
- Such an application also cannot be rejected merely because the applicant’s previous employment experience failed to include one of the duties listed under the NOC.
Song applied for judicial review of the decision of a visa officer to reject his application for permanent residency as a member of the Canadian Experience Class. He had applied under the National Occupation Classification of Retail and Wholesale Trade Manager.
The officer rejected Song’s application because he did not meet the skilled work experience requirement. Song had provided a letter outlining his duties as storefront manager at a Toronto pharmacy but the visa officer argued that the duties listed in the letter did not specifically match the duties required under the NOC. Furthermore, the officer argued that Song’s letter had failed to mention that Song had studied competitors’ sales operations, which is one of the requirements duties listed under the NOC.
The Federal Court found the officer’s decision to have been unreasonable for two reasons. Firstly, the Court opined that an applicant’s written employment experience does not have to match the exact wording of the duties listed under the NOC in order to meet the experience requirement. Secondly, the Court opined that if an applicant’s written employment experience does not include one of the required duties, his application should not automatically be disqualified.
Song’s work experience was deemed by the Court to have satisfied all relevant requirements under the NOC except for the requirement concerning competitor’s sales operations.
The court thus quashed the officer’s rejection of Song’s application and returned the application for reconsideration by another officer.
2015-02-18 | 2015 FC 206 | IMM-446-14
Asoyan v Canada (Citizenship and Immigration)
Once an applicant indicates that she is having trouble receiving e-mails from CIC, it is CIC’s duty to ensure that the applicant receives all subsequent e-mails.
Asoyan applied for judicial review of CIC’s decision to reject her application for permanent residency.
During her application, Asoyan provided CIC with an e-mail address to be used for all communications regarding her application.
In February 2013, CIC sent Asoyan an e-mail requiring that she provide information concerning a gap in her personal history as stated in her application. Asoyan contended that she did not receive this e-mail. CIC never followed up to ensure that Asoyan received the information request. CIC was already aware of Asoyan’s difficulty receiving e-mails, as Asoyan had previously brought it to CIC’s attention that she never received an Acknowledgement of Receipt e-mail concerning her initial application.
Assoyan’s application was eventually rejected due to her failure to provide the information requested in the February e-mail.
The Federal Court opined that once the Asoyan had made it clear that she was not receiving CIC’s e-mails, it was CIC’s responsibility to ensure that she received all information relevant to her application. Thus, in not making any effort to ensure that Asoyan received the information request in February 2013, CIC had breached its duty of procedural fairness. The application for judicial review was allowed.
2015-01-16 | 2015 FC 67 | IMM-4516-13
Ijaz v. Canada (Citizenship and Immigration)
In the context of education received in a foreign country, there is ambiguity in the IRP regulations concerning whether educational qualification points should be awarded based on equivalent years of education or equivalent completed degrees.
Ijaz applied for judicial review of a CIC officer’s rejection of her application for permanent residency as a Federal Skilled Worker.
Ijaz argued that she was erroneously awarded 5 educational qualification points when she was actually entitled to 19 points. If Ijaz had been awarded 19 points, her application would have succeeded.
Ijaz submitted evidence that she had completed secondary school, a two-year science degree and a two-year accounting degree in Pakistan. Upon evaluation, it was determined that Ijaz’s educational experience constituted the equivalent of a Canadian high school diploma, two years of Canadian undergraduate schooling and two years of Canadian professional schooling.
Ijaz argued that she should have been awarded points for her four years of post-secondary schooling while CIC argued that educational qualification points are only provided for foreign educational experience that constitutes the equivalent of a completed degree in Canada. Thus, given that Ijaz had not been assessed as having completed the equivalent of a Canadian bachelor or professional degree, she only received points for her equivalent high school diploma.
The Federal Court applied the standard of reasonableness to the case as the matter involved a CIC officer interpreting a statute with which he had substantial experience. The Court then opined that both Ijaz and the CIC’s arguments were reasonable interpretations of the IRP Regulations. The Court thus deferred to the CIC’s rejection of the application and submitted a certified question on the legislative ambiguity.
The application for judicial review was dismissed. The certified question has not yet been answered.
2015-01-29 | 2015 CF 116 | T-346-14
El-Husseini c Canada (Citoyenneté et Immigration)
Procedural fairness requires a citizenship judge to take sufficient measures to inform a citizenship applicant of any evidence-related problems with his application before a final decision is rendered.
El-Husseini sought judicial review of a citizenship judge’s decision to reject his citizenship application.
After an interview with a citizenship judge, El-Husseini’s application was rejected because he was unable to prove that he had resided in Canada prior to January 2008. El-Husseini contended that he had brought evidence to the interview proving his presence in Canada prior to January 2008, but had never been asked to furnish it. The citizenship judge contended, on the other hand, that El-Husseini had been unable to provide the evidence when asked.
In light of conflicting affidavits, the Federal Court opined that there was a miscommunication between El-Husseini and the citizenship judge concerning the evidence. In light of this miscommunication, the Court confirmed that it is a citizenship judge’s responsibility to clearly inform a citizenship applicant of any evidence-related concerns regarding his application before a final decision is rendered. Given the citizenship judge’s failure to clear up the misunderstanding regarding the evidence El-Husseini was supposed to provide, the Court found the rejection of El-Huseeini’s application to have been a breach of procedural fairness.
The application for judicial review was allowed and El-Husseini’s application was sent for re-evaluation by a new citizenship judge.
A drastic decrease in the proportion of immigrants seeking Canadian citizenship, from 79% in 2000 to 26% in 2008, is raising fears that new rules and fees are discouraging immigrants from becoming Canadian citizens.
Analysis of citizenship data has led to former Citizenship Director-General, Andrew Griffith, to warn about the implications of immigrants becoming disenchanted with citizenship rules applicable in Canada. The former Director-General has opined that the drastic fall in citizenship data is a result of the reforms introduced by the Conservative government, including the introduction of a new version of the citizenship test.
The expert is of the opinion that recent changes have made it tougher for immigrants to acquire citizenship, leading to a piquant situation where a large number of immigrants are unable to enjoy the political benefits of Canadian citizenship.
Analyzing data released by the government, Griffith has expressed concern over the significant decline in the ratio of permanent residents seeking Canadian citizenship. As compared to 79% amongst immigrants who arrived in 2000 and 44% amongst immigrants settling in Canada in 2007, only 26% of those who obtained Permanent Residence in 2008 chose to become citizens of the country.
Considering that the process of acquisition of citizenship takes around six years, the 2008 data is, according to Griffith, a clear indicator of the negative impact of the recent reforms introduced in Canada. While acknowledging the link between conversion rate and the duration of stay as permanent resident, Griffith pointed out that an 18% reduction in demand for Canadian citizenship between 2008 and 2007 was an alarming development.
Responding to the criticism, spokesperson of Citizenship and Immigration Canada said non-fulfillment of all the requirements to initiate the citizenship process may be the primary cause behind the variation in data. The spokesperson pointed out that Canada has always enjoyed a high rate of naturalization, at around 86%, as compared to other countries.
The biggest distinction between permanent residents and Canadian citizens is that the former cannot vote or hold a Canadian passport. Further, permanent residents face the risk of revocation of permit, which may result in their removal from the country. Further, citizens are protected by the Charter of Rights and Freedoms.
Griffith has been vocal in his criticism despite being associated with the government during the development and implementation of the reforms. Acknowledging the rationale behind the changes, Griffith emphasized on the importance of an inclusive instead of exclusion-oriented approach. While stating that citizenship should be restricted only to those who were serious about it, Griffith warned against creation of inadvertent barriers that may affect the relationship of some communities with Canadian society.
Over the past four years, Canada has introduced numerous reforms, including administering of a new citizenship test and an increase in passing scores from 60% to 75%. Applicants are now required to correctly answer 15 out of the 20 multiple choice questions in order to qualify for citizenship. The test is designed to assess immigrants’ knowledge about the history, culture, and values of Canadian society.
Commenting on the impact of the new test on immigrants of different communities, Griffith pointed out that immigrants from the Caribbean region have witnessed a 20% decline in their passing percentage. Immigrants from other communities from South Asia, South Africa, and East Africa witnessed a decline of more than 15%.
Responding to this criticism, the CIC spokesperson pointed out that applicants from all communities undergo the same test. Further, the spokesperson pointed out that an overall pass percentage of 85% is a clear indication that the test is neither too easy not to difficult for immigrants applying for citizenship.
Another obstacle, according to Griffith, is the significant hike in citizenship application fees. In the past, the decision to opt for citizenship was based on the education and income levels of the immigrants. Griffith pointed out that high fees have created an additional hurdle for immigrants on an unsound financial footing.
In 2013, the fee for processing citizenship applications was increased from $100 to 530 over two separate hikes in February and December. Further, immigrants who qualify are required to pay an additional $100 towards the Right of Citizenship fee.
Warning the government of further issues in engaging with immigrants and creating an attachment to the identity of Canada, Griffith pointed out that demand for citizenship has come down despite the fact that the most controversial changes to citizenship rules are yet to come into force.
New residence rules require applicants to be present in Canada for four out of six years as opposed to the earlier requirement of three out of four years. Further, age limit for exemption from language and citizenship tests has been raised from 55 years to 65 years. Both these changes will come into force from June 2015.
The former head sought a fair balance between maintaining a vigorous process for identifying future citizens without making the entire process seem like an unfair and unreasonable farce.
On April 1, 2015, the Canadian government will launch a new industry. Citizenship and Immigration Canada will begin manufacturing “illegal immigrants.”
Four years ago, on April 1, 2011, the Conservative cabinet passed a regulation known as the “4-in, 4-out” rule, requiring all temporary foreign workers who have been in the country for four years or longer to leave, and remain outside Canada for at least four years. As of April 1, then, those still here will be classified as illegal.
In theory, a temporary foreign worker can apply to transition to permanent resident status within those four years in Canada, but in practice, those designated as “low wage” will generally not qualify for this. A few provinces including Manitoba and Alberta have used their limited scope of authority to nominate “low-wage” workers for permanent resident status, but the number of cases in which this has occurred are small.
So by April 1, 2015, all temporary foreign workers who arrived on or before April 1, 2011 are expected to leave the country. Some, however, are expected to remain living and working in Canada without legal status. We know this because that is what has happened from the mid-1940s to the present, in every country in the world that has run a mass guest-worker regime.
This is what any competent Citizenship and Immigration bureaucrat knew and probably told the Minister of Citizenship and Immigration in 2006, when the government decided to dramatically expand and under-regulate the temporary foreign worker program, and again in 2011 when the government instituted the “4-in, 4-out” rule.
Temporary foreign workers overstay their visas and go underground for various reasons. Their families abroad may depend on their remittances to subsist. They may have been exploited by rapacious “recruiters” and/or unscrupulous employers. Returning home empty-handed and possibly indebted is not only stigmatizing, it can be dangerous.
Some workers may even have felt at home in Canada, gradually becoming potential members of the society where they live, work and pay taxes. Some Canadians may consider the government’s guest-worker regime to be misguided and believe it should not continue. But terminating it will not resolve the dilemma of those temporary foreign workers who are already here and who are the targets of the “4-in, 4-out” rule.
It is common knowledge that some sectors of the U.S. economy have become dependent on undocumented workers, of which there are an estimated 11 million. Some employers find them a desirable work force precisely because their deportability ensures that they will “work hard and work scared.” These employers are also known to wield their political influence accordingly.
Migrants without legal status are also easy targets for vilification. The slide from “illegal immigrant” to “criminal” in popular discourse is easy. A government that is looking to supplement the bogus refugee, the marriage fraudster and the foreign terrorist with a new category of bad immigrant and a new excuse to get tough on non-citizens might find it convenient to add “illegal immigrants” to the roster. The government’s role in illegalizing these migrants may escape notice.
On March 31, temporary foreign workers will go to bed as lawfully employed, hard-working, tax-paying residents of Canada, and wake up the next day as illegal immigrants.
Source: National Post
Attorney Colin Singer Commentary:
Illegal immigrants who are currently employed in Canada could be given temporary work permits by the Canadian government. Those who remain in good standing could apply for permanent residence after a period of 12 to 24 months.
Almost a quarter of Canada’s illegal immigrants could make use of such a scheme and bring in significant tax revenue. This could represent some $150 million in direct annual taxes and ER contributions in the first year alone. Plus, these individuals would eventually be able to sponsor their immediate family members and this would further increase income taxes, ER payroll taxes and HST consumption tax expenditures far beyond the income tax revenues.
Prime Minister Stephen Harper vows to appeal the federal court decision allowing women to take the oaths of citizenship while wearing veils; says it is “offensive” that people should hide their identity “at the very moment where they are committing to join the Canadian family.” Read More
Source: The Star