Protecting Foreign Nationals from the Risk of Abuse and Exploitation

Operational Bulletin 567 – February 14, 2014

Summary

This Operational Bulletin (OB) instructs officials of Citizenship and Immigration Canada (CIC) and Canada Border Services Agency (CBSA) about the regulations introduced on December 31, 2013. These regulations aimed at prohibiting certain businesses from employing foreign nationals in any capacity. The list of such businesses include those that regularly offer services like:

• Stripteases
• Erotic dances
• Escort services or,
• Erotic massages

Background

In July 2012, the Minister of CIC instructed officers not to process work permit applications from foreign nationals intending to work in certain businesses. These instructions aimed at protecting foreign nationals from the risk of:

• Abuse
• Exploitation and,
• Trafficking

Therefore, officers could avoid processing work permit applications for foreign nationals if the individuals intended to work in businesses that featured the risk of sexual exploitation like:

• Strip clubs
• Erotic dances and,
• Massage parlours

Officers needed to have reasonable grounds of suspicion to avoid processing such applications.

The Ministers of CIC and Employment and Social Development Canada also announced that the Government would take other measures as well. These measures included making regulatory changes. Such changes would come within the purview of Canada’s National Action Plan to Combat Human Trafficking.

The Government finalised the regulatory changes. These changes came into effect on December 31, 2013. Under these regulations, the Government prohibits all foreign nationals from working for these businesses. This is regardless of the work authorisations these individuals currently hold including whether they:

• Work off campus
• Work without a permit or
• Have an open work permit

The scope of foreign nationals covers workers, students and visitors.

The New Regulations

The new regulations imposed additional conditions on all foreign nations entering Canada by operation of law. Therefore, Section 183 of the Immigration and Refugee Protection Regulations (IRPR) declares that:

183. (1) Subject to Section 185, the following conditions are imposed on all temporary residents:

(b.1) if authorised to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;

Subsection 200(3) instructs officers about situations where they must not issue work permits.

200. (3) An officer shall not issue a work permit to a foreign national if […]

(g.1) the foreign national intends to work for an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages; […]

Processing Instructions

• Officers will have the right to refuse work permits to any foreign nations applying to work in Canada in any occupation for businesses that provide, on a regular basis, services including:
• Stripteases
• Erotic dances
• Escort services or
• Erotic massages
• These instructions apply to all foreign nationals regardless of whether they are:
• Entering Canada (via work permit exempt or on open work permits) or,
• Already in Canada
• Foreign nationals cannot take up employment of any capacity with these businesses including occupations like a:
• Cook
• Janitor or,
• Dancer

Note:

• The term “Employment Agreement” denotes an arrangement that creates:
• An employment relationship or,
• A contract for individual services,
• Where the contractor renders direct service to a Canadian business by means of a:
• Performing artist contract or,
• Direct hire contract
• The “Employee Agreement” covers any situation where the Canadian business has the right to direct and control the:
• Type of work carried out by the employee
• Manner in which the employee discharges responsibilities and,
•  Timings during which the employee works
• This includes situations where the business determines the scheduling for when, where and how the contractor provides services
• Officers could determine whether businesses meet the description prescribed by the regulations i.e. “Business offering striptease, erotic dance, escort services or erotic massage on a regular basis” by considering the following questions:
• Are the activities (i.e. striptease, erotic dance, escort services or erotic massage) the ‘normal’ form of entertainment or services provided by the business – Yes or No?
• If the answer is ‘Yes’: Officers should refuse to issue work permits (according to R200(3)(q.1))
• If the answer is ‘No’: Officers should consider the following questions:
• Is the business offering these services or is the business merely hosting the event in situations like:
• A strip club featuring an entertainer
• A bar presenting an entertainer or,
• A hotel renting out a conference room
• What is the frequency with which the business offers these services regularly? Does it offer these services:
• Once or more a week or month or
• Periodically i.e. once in a year
• If the answers to these two questions is a ‘Yes’, officers can refuse to issue work permits (according to R200(3)(q.1))
• In case the venue is not the host, then the officers would deem the entity signing the contract exchanging employment or services with the foreign national as the employer

 

Source: Citizenship and Immigration Canada (CIC)