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Canada Immigration Blogs by Attorney David Cohen

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Citizenship Takes a Back Seat

November 27th, 2013

Canada, like most developed countries competes for talented would-be immigrants. Part of what makes Canada desirable is the clear path it offers to citizenship and a Canadian passport. The law stipulates that after residing in Canada for three years, the holder of a permanent resident visa may apply for Canadian citizenship. That much is clear, at least for now.

Less apparent is the length of time required for Citizenship and Immigration Canada (CIC) to process a citizenship application. Currently, routine cases move through the system in 25 months and more complicated cases take about 35 months to process. The reason for the lengthy delay is easy to explain. In the last five years the intake of citizenship applications has exceeded the output of applications by a healthy margin. In 2012 alone, input exceeded output by more than 150,000 and at the end of that year there existed a total inventory of 367,375 pending applications.

This state of affairs is nothing new for CIC. A few years back CIC was faced with a significant backlog of permanent resident applications under the Skilled Worker category. The Minister of Immigration solved that problem by terminating the applications of 280,000 individuals. Fortunately for permanent residents, the law and political considerations protect them from a similar fate.

Rumor has it that the government intends to reduce the inventory of citizenship applications and the accompanying lengthy processing delays by adding one more year to qualify for citizenship. By extending the residency requirement to four years from the current three years, CIC will acquire one year to output applications without any intake of fresh applications. In theory, this would work but politically it could be costly, especially in the immigrant rich suburbs of southern Ontario, which are perceived to be an important battleground in the next Federal election.

There is another solution. The government could leave the three year residency requirement in place and fund an adequate workforce to process the backlog and intake of new applications in a timely manner. In my opinion, that’s what should be done.

The Numbers Don’t Add Up

October 30th, 2013

As noted on CIC News, the Minister of Citizenship and Immigration this week tabled the Annual Report to Parliament on Immigration 2013. Not only does the report paint a picture of the current state of affairs in the sphere of Canadian immigration, it also provides a peek as to what’s in store for 2014.

Overall, Canada intends to take in between 240,000 and 265,000 new permanent residents next year. Of these, about 164,500 will be economic immigrants and about 68,000 will be sponsored family members. The remaining 28,400 will consist of humanitarian cases, mostly asylum seekers.

Certain aspects of the report stick out. Firstly, the much touted Expression of Interest (EOI) application management model that was going to be implemented in 2014 now has a target date of early 2015. Consultations between the federal government and the provinces and employers are still ongoing according to the report, and so one has to wonder if even the latest anticipated start date is optimistic.

Secondly, the Federal Skilled Worker (FSW) backlog of applications has essentially been worked through. From a peak of 640,000 people in 2008, the FSW backlog stood at 65,000 persons at the end of July, 2013. Taking into account the applicants in the backlog who will be refused and the applications processed between August and the end of 2013, there won’t be much FSW grist for the Canadian immigration mill as we head into 2014.

That the backlog was reduced, in good part, on the backs of close to 300,000 persons, whose applications were terminated by the government, is a whole other story that I have commented on in the past. Suffice to say that the decision to close files without a decision was controversial and arguments against it will be heard by the Federal Court of Appeal.

Thirdly, the numbers in the report don’t add up, at least with respect to the new economic immigrants projected for 2014. Something is missing. The figures provided (46,000 provincial nominees, 31,000 destined to Quebec, 15,000 Canadian Experience Class, etc…) fall well short of the 164,500 total number of economic immigrants mentioned in the report. Even allowing for some residual backlog and the meagre 2013 FSW Ministerial Instructions, it is hard to imagine reaching 164,500 unless a new set of Ministerial Instructions in 2014 opens the door to more FSW applicants.

Something To Think About

September 25th, 2013

Last Saturday’s terrorist attack on innocent men, women and children in a Nairobi shopping mall claimed at least 67 lives, at last report. Tragic as that is, many many more will spend the rest of their lives trying to cope with the images of the carnage they survived.

Among the fatal victims were at least two Canadians, one of whom was Annemarie Desloges, 29 years old and an employee of Citizenship and Immigration Canada. I extend my condolences to her family members, dear friends and colleagues.

I, like most Canadians, take so much for granted and in particular the peaceful nation in which we live. It took this awful tragedy for me to really comprehend just how dangerous it can be to take part in the foreign service of Canadians. To all of you who do, I express my sincere gratitude.

Let the Court Decide (Que la Cour statue)

August 29th, 2013

(LA VERSION FRANÇAISE SUIVRA)

I thank my colleague and good friend Mario Bellissimo for bringing the following quotes to my attention.

“…That is a principle of Canadian law that is sacrosanct…you can’t revise things retroactively.”

You may be surprised to learn that the above words were uttered by Chris Alexander, then a backbench Member of Parliament and now the newly appointed Minister of Citizenship and Immigration.

Unfortunately, Mr. Alexander wasn’t referring to the 280,000 would-be Canadian immigrants whose applications, dating back to 2004, were recently terminated without processing by the government he represents. Rather, he was defending the actions of two fellow Conservatives, who had allegedly violated the spending provisions of the Elections Act during the last federal election. What troubled Mr. Alexander was that Elections Canada supposedly retroactively revised certain requirements after having accepted the candidates’ returns.

Once Parliament resumes in October, Mr. Alexander will have the opportunity to demonstrate that he is a person of principle and do right by the people whose applications were jettisoned. However, more likely than not, what’s good for the goose will do nothing for the gander. The fate of these applicants remains in the hands of the Federal Court of Appeal.

The foregoing serves as a lead-in to what this blog is really about. Last month, I commented on the Province of Quebec’s attempt to compete with the federal government in the odious retroactivity game. On the one hand, Quebec will not terminate older applications. On the other hand, they will impose new selection criteria to applications that were submitted prior to the adoption of the new criteria. In some instances, individuals, who submitted their applications years ago, will be negatively affected.

In a bid to outdo the feds, at this point in time Quebec is only offering to refund government processing fees to relatively few of the affected applicants . It’s hard to determine which government’s actions are deserving of the title “most repugnant”.

Like the Minister of Immigration, I too value the principles of Canadian law. Among them is the right to challenge injustice in the courts of law. For that reason, I have co-counselled with lawyer Mathieu Bouchard of the law firm Irving Mitchell Kalichman and we are filing a Motion To Institute Proceedings For A Declaratory Judgement and For A Safeguard Order in the Quebec Superior Court on behalf of one of my clients, whose application will likely be refused if the new regulations are retroactively applied to her case. We are asking the Honourable Court to declare Quebec’s retroactive regulations null.

Hopefully, justice will prevail.

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Que la Cour statue

Je remercie mon collègue et bon ami Mario Bellissimo pour porter la citation suivante à mon attention :

“…That is a principle of Canadian law that is sacrosanct…you can’t revise things retroactively.”

Vous serez peut-être surpris d’apprendre que les mots ci-dessus ont été prononcés par Chris Alexander, à l’époque un simple député et maintenant nouveau Ministre de la Citoyenneté et de l’Immigration.

Malheureusement, M. Alexander ne faisait pas référence aux dossiers, remontant à 2004, des 280.000 candidats à l’immigration au Canada auxquels il a récemment été mis fin sans traitement par le gouvernement qu’il représente. Au contraire, il défendait les actions de deux collègues conservateurs, qui auraient violé les dispositions en matière de dépenses de la Loi Électorale lors de la dernière élection fédérale. Ce qui troublait M. Alexander, c’était qu’Élections Canada aurait supposément révisé rétroactivement certaines exigences après avoir accepté les rapports des candidats.

Lorsque le Parlement reprendra ses travaux en Octobre, M. Alexander aura l’occasion de démontrer qu’il est une personne de principes et qu’il rendra justice aux personnes dont les demandes ont été larguées. Cependant, il est plus probable que ce qui est bon pour pitou ne profitera pas à minou. Le sort de ces candidats reste entre les mains de la Cour d’Appel fédérale.

Ce qui précède constitue une introduction à ce sur quoi ce blog porte vraiment. Le mois dernier, j’ai parlé de la tentative de la Province de Québec de rivaliser avec le gouvernement fédéral dans le jeu odieux de la rétroactivité. D’une part, le Québec ne mettra pas fin à d’anciens dossier, mais d’autre part, ils vont imposer de nouveaux critères de sélection pour les dossiers qui ont été présentés avant l’adoption de ces nouveaux critères. Dans certains cas, des personnes qui ont soumis leurs dossiers il y a quelques années déjà seront affectées négativement.

Dans une tentative de surpasser le gouvernement fédéral, le Québec offre pour le moment seulement de rembourser les frais de traitement du gouvernement à relativement peu de demandeurs concernés. Il est difficile de déterminer laquelle des actions du gouvernement est digne du titre du « plus répugnant ».

Comme le ministre de l’Immigration, moi aussi j’apprécie les principes de la loi canadienne. Parmi eux, il y a le droit de contester l’injustice dans les tribunaux. Pour cette raison, l’avocat Mathieu Bouchard, du cabinet Irving Mitchell Kalichman, et moi-même nous nous sommes constitués co-conseils et nous déposons une Requête Introductive d’Instance pour un Jugement Déclaratoire et une Ordonnance de Sauvegarde à la Cour supérieure du Québec au nom d’une de mes clientes dont la demande d’immigration sera probablement refusée si les nouveaux règlements sont appliqués de manière rétroactive à son cas. Nous demandons à l’Honorable Cour de déclarer nulle la réglementation rétroactive du Québec.

Espérons que la justice prévaudra.

Monkey See, Monkey Do (Singe qui voit, singe qui fait)

July 30th, 2013

(LA VERSION FRANÇAISE SUIVRA)

Taking a page from the Federal government’s book on unethical behaviour, the provincial lawmakers in Quebec City recently made it clear that they too can play fast and loose with the lives of would-be immigrants.

A few weeks back, the Quebec government officially announced important changes to the selection criteria of the Quebec Skilled Worker program, a category of immigration that ultimately leads to a Canadian permanent resident visa. These changes are scheduled to become effective on August 1st, 2013. One would have thought that anyone who applies on or after August 1st will be subject to the changes, but that the new selection criteria will not apply to anyone who is already in the queue or to anyone who manages to submit an application prior to August 1st. If you think that way, you would be wrong.

The immigration authorities in Quebec intend to apply the new selection criteria to all applications, for which preliminary processing has not begun by July 31st. In other words, the changes will be applied retroactively to candidates who applied, in good faith, months ago.

As noted above, the Quebec government has taken its cue from its Federal counterpart. Not so long ago, in a move that can legitimately be described as mean-spirited, our Federal government passed a law that effectively terminated the application of close to 300,000 individuals who had applied for a permanent resident visa under the Federal Skilled Worker category of immigration prior to February 27th, 2008. These applicants did nothing wrong. They followed all the rules and waited patiently in line for years, all for naught. Their files were never even assessed.

So far, the feds have gotten away with it. The Federal Court, while giving lip-service to the plight of the affected applicants, nonetheless ruled that the Federal government had acted within its power. The case is now before the Federal Court of Appeal.

I suppose the powers that be in Quebec are of the opinion that their form of retroactivity is less offensive than the Federal government’s version in that they will, at least, assess the applications submitted prior to the changes coming into force. While this may be true, in other ways Quebec’s proposed actions are even more unjust.

Applying new selection criteria to previously submitted applications is akin to moving the goal posts after the match has begun. That’s bad enough. What’s worse, is that there has been no indication that Quebec intends to refund applicants their government processing fees. Applicants were charged good money by the government to have their qualifications assessed according to a certain set of criteria. The government changes the criteria and now some applicants no longer qualify. The government keeps their money. This is a classic case of bait and switch, and flies in the face of Quebec’s strong consumer protection legislation.

It won’t surprise me to see a court action mounted against the Quebec government by a disgruntled applicant or group of applicants. While the application of selection criteria retroactively is repugnant, it is nonetheless legal, except as it applies to criminal law. However, the fact that it is legal does not absolve the government from the necessity of implementing the changes in a fair and non-arbitrary manner. By holding on to processing fees, the government may be helping the applicants’ case before the courts.

Stay tuned and we will keep you advised as developments occur.

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Singe qui voit, singe qui fait

En s’inspirant des gestes récents du gouvernement fédéral qui traduisaient des comportements contraires à l’éthique, les législateurs provinciaux québécois ont récemment fait de même en prenant des libertés avec la vie des candidats à l’immigration.

Il ya quelques semaines, le gouvernement du Québec a annoncé officiellement des changements importants aux critères de sélection du programme des Travailleurs Qualifiés du Québec, une catégorie d’immigration qui conduit à un visa de résident permanent au Canada. Ces changements devraient entrer en vigueur le 1er août 2013.

On comprend facilement que toute personne qui soumet une application le 1er août ou après sera sujet aux changements. Mais plus que cela, le gouvernement a indiqué que les nouveaux critères seront applicables à certaines personnes qui ont déjà soumis une demande, de même qu’à ceux qui parviennent à présenter une demande avant le 1er août. Si vous aviez pensé que les dossiers soumis avant l’entrée en vigueur des changements ne seront pas affectés par les nouveaux critères, vous avez eu tort.

Les autorités de l’immigration au Québec ont l’intention d’appliquer les nouveaux critères de sélection pour toute demande dont le traitement préliminaire n’a pas débuté avant le 31 Juillet 2013. En d’autres termes, les changements seront potentiellement appliqués rétroactivement aux candidats qui ont soumis leur dossiers, de bonne foi, il y’a déjà plusieurs mois.

Comme mentionné ci-dessus, en agissant de cette manière, le gouvernement du Québec imite son homologue fédéral. Il n’y a pas si longtemps, dans un mouvement qui peut légitimement être décrit comme mesquin, que notre gouvernement fédéral a adopté une loi qui a mis fin efficacement aux dossiers de presque 300,000 personnes qui avaient soumis une demande de visa de résident permanent en vertu de la catégorie des travailleurs qualifiés fédéral avant le 28 Février 2008. Ces candidats n’ont rien fait de mal. Ils ont suivi toutes les règles et attendaient patiemment dans la file d’attente pour des années, et ceci pour rien. Leurs dossiers n’ont jamais été évalués; ils ont simplement été éliminés de façon rétroactive.

Jusqu’à présent, la tentative du gouvernement fédéral de mettre fin à ces dossiers a réussi. La Cour fédérale, tout en faisant preuve de sympathie pour les demandeurs concernés, a néanmoins statué que le gouvernement fédéral avait agi dans le cadre de son pouvoir. L’affaire est maintenant devant la Cour d’appel fédérale.

Je présume que les autorités québécoises sont d’avis que leurs changements rétroactifs sont moins offensifs que ceux du gouvernement fédéral, étant donné qu’ils vont au moins évaluer les demandes qui ont été présentées avant que les changements entrent en vigueur. Alors que cela est peut-être vrai, les actions proposées par le gouvernement du Québec sont encore plus injustes en d’autres égards.

En appliquant les nouveaux critères de sélection aux demandes déjà soumises, le gouvernement du Québec s’apparente à déplacer les poteaux de but alors que le match a déjà commencé. Juste ceci est déjà assez grave; mais pire que cela, il n’y a eu aucune indication que le Québec a l’intention de rembourser aux candidats leurs frais de traitement si leurs demandes sont affectés de façon négative par les changements. Les demandeurs ont soumis leur argent au gouvernement pour qu’ils puissent avoir leurs qualifications évaluées selon les critères en vigueur lors de leur soumission. En modifiant les critères après la soumission, certains candidats ne seront plus admissibles, mais le gouvernement gardera leur argent. C’est un cas de leurre, ce qui va à l’encontre de la forte législation en vigueur au Québec traitant de la protection du consommateur.

Cela ne me surprendrait pas de voir une action en justice menée contre le gouvernement du Québec par un candidat mécontent ou un par un groupe de candidats. Bien que l’application rétroactive de critères soit répugnante, c’est néanmoins légal en droit de l’immigration, ainsi que dans tout autre domaine juridique mis à part le droit pénal. Cependant, le fait que ces gestes sont légaux n’absout aucunement le gouvernement de la nécessité de mettre en œuvre ces changements d’une manière juste et non arbitraire. En gardant les frais de traitement, le gouvernement pourrait en effet aider la cause des demandeurs devant les tribunaux.

Restez à l’écoute et nous vous tiendrons au courant des développements.

When Objectives Compete

June 26th, 2013

Until quite recently, Canadian immigration law and Canadian immigration policy were in sync, when it came to keeping families together.

The law, as it is laid out in the Immigration and Refugee Protection Act (IRPA) states that one of its objectives is “to see that families are reunited in Canada.” Likewise, government policy, as noted in manuals published by Citizenship and Immigration Canada (CIC) instructs visa officers to avoid splitting or separating families at the time of selection.

With the above in mind, it came as a surprise that CIC announced, last month, it intended to narrow the definition of “dependent child”, beginning in January 2014.

Principal applicants in all categories of Canadian immigration can include dependent children in their applications. Right now, an applicant’s child would be considered dependent if he or she is under 22 years of age and not a spouse or common-law partner. A child who is 22 years of age or older may also be considered a dependent child if that person has depended on the financial support of the parent(s) and has been a full-time student continuously since before the age of 22.

Starting in 2014, regulatory amendments will restrict the definition of dependent child by reducing the age limit to under 19 and removing the exception for full-time students. In a Regulatory Impact Analysis Statement, the government indicated that the current definition of a dependent child for immigration purposes is out of step with its objective of selecting migrants who contribute best to Canada’s economic growth and sustainability. According to CIC’s logic, older children don’t settle in Canada as easily as younger children.

This reasoning may or may not be accurate. What is certain, however, is that some very worthy applicants will have to decide between immigrating to Canada and leaving a child or children behind. It appears to me that this decision runs counter to CIC’s stated objective of keeping families together.

Hurry Up and Wait

May 29th, 2013

Most readers are far too young to identify with the expression “hurry up and wait”. This expression dates back to the 1940’s and was used to describe the non-combat daily lives of infantrymen during World War II. Nowadays, the same expression applies to preparing for the Canadian immigration process.

In the past, candidates for permanent residency, under most Canadian immigration categories, would submit their applications to a Canadian Visa Office and then wait for a decision, positive or negative, on their file. The law required that every application be assessed and that, in itself, became a big problem for everyone concerned. Processing delays got longer and longer while the backlog of unprocessed applications in all categories grew to almost one million. The end result was that an applicant in the Federal Skilled Worker category, for example, could wait the better part of ten years for a decision on an application.

A few years back, the Canadian government finally decided to deal with this untenable situation, once and for all. Citizenship and Immigration Canada (CIC) significantly reduced the intake of fresh applications and mercilessly terminated the applications of almost 300,000 individuals, who had been waiting patiently for their files to be assessed. The desired result of backlog reduction has been achieved and by the end of this year it is expected there will no longer be an inventory of Federal Skilled Worker applications to process.

CIC is determined to never again face a significant backlog of unprocessed applications. To ensure this, CIC now places strict limits/caps on the number of applications that can be received for assessment in most categories of Canadian immigration. Current examples of this relatively new restrictive policy include:

Federal Skilled Workers

  • On May 4th, 2013, CIC began accepting applications under the Federal Skilled Worker category. A total of 5,000 applications will be accepted for assessment. Candidates must score 67 points on a selection grid and have at least one year of experience in at least one of 24 eligible occupations. No more than 300 applications will be accepted for assessment in each eligible occupation.

Parent and Grandparent Sponsorship

  • On January 2nd, 2014, CIC will again begin accepting sponsorship applications from Canadian citizens and permanent residents on behalf of their parents and/or grandparents. Only 5,000 applications will be accepted for assessment. There are likely about one million Canadian families that would qualify for the opportunity.

Quebec Investor Category

  • On August 1, 2013 the Quebec Immigrant Investor Category is rumoured to begin accepting applications again. The number of applications that will be accepted for assessment will likely be less than 2000. The last time that a Canadian immigration program for investors was available, it filled within one day.

So, with caps and limits now permanent fixtures of the Canadian immigration landscape, what is the best strategy to follow for an individual who wants a Canadian Permanent Resident visa? Waiting for a particular program to officially open before beginning the preparation of an application may not be the best course of action. For one thing, there are more than 60 Canadian immigration programs to keep track of.

Perhaps more importantly, when an immigration program opens, it will likely be for a relatively short time and there will be many applicants scrambling to put their documents together and attempting to squeeze through the same narrow doorway. The best advice is to have as much of the application prepared in advance in anticipation of the door opening.

Applicants who choose to prepare in advance do run the risk of being ineligible when a particular program opens. However, for many the risk is well worth the potential reward. So we have the phenomenon of applicants working hard to prepare an application, and then having to wait weeks or months until it can even be submitted.

And this brings us back to the military expression, “hurry up and wait”.

For the Price of a Cup of Coffee

April 30th, 2013

Ponder the following questions:

Why haven’t we seen a drop in unemployment rates for certain groups of job-seekers – recent graduates, new immigrants, aboriginals, the unemployed?

Why aren’t wages increasing, even in high demand occupations?

Why don’t people move from one part of the country to another for a job?

The answer to all of these questions, at least in part, can be found in Canada’s increased reliance on temporary foreign workers. This is especially the case when it comes to workers in lower-wage jobs.

Over 330,000 foreign workers were admitted to Canada in 2011 and this is more than double the number that were admitted just six years ago. The majority of these foreign workers filled low-wage positions.

Consider that more than 20% of net new jobs created in Canada since 2007 have gone to temporary foreign workers, while during the same period the jobless rate for low-skilled workers went from 8.3% to 10.5%. What’s more, it’s hard to argue with the program’s many critics who claim that foreign workers depress wages.

So why does the government persist with bringing in ever-larger numbers of workers from abroad? The knee-jerk response is that the Conservatives lie down with big business and the latter prefers its workforce to be vulnerable and compliant. Maybe that’s the case, but I suspect there is more at play here.

The vast majority of voters are unhappy, to say the least, with the idea of foreign workers competing with locals for Canadian jobs. The decision-makers in Ottawa are anything but dumb and are acutely aware of voters’ feelings. Turning off the tap on foreign workers is simple enough, but then what? Do we let workers’ wages rise to the point where the people in Canada agree to be hired?

What happens, for example, to the price of a cup of coffee at Tim Horton’s when we replace the low salaries of foreign worker counter attendants with the higher salaries demanded by Canadian workers? Voters having to pay more in their everyday lives are voters who look for a change. This is not lost on the powers-that-be.

Justice Delayed is Justice Denied

March 27th, 2013

Citizenship and Immigration Canada is patting itself on the back these days for having reduced the backlog of permanent resident applications by forty percent since its high water mark in 2008.

When it comes to the processing of citizenship applications, however, the same government department is far less effusive with self-praise. And with good reason. Not that long ago, a routine citizenship application would move through the system in about one year. Today, the average processing time on a run-of-the-mill application is 23 months – even longer in some parts of the country. Keep in mind, the option to apply only arrives after three years of permanent residency status.

Worse still is the plight of anyone whose case is not routine. About twenty percent of applicants fall into this category and they are required to complete a ‘residence questionnaire’ to demonstrate that they have actually been residing in Canada. Supporting documents such as pay stubs, tax returns and airline tickets must be submitted as evidence of time spent in Canada. Fair enough, I suppose, if there is a suspicion of misrepresentation. After all, people have been known to scam the system and pretend to have resided in Canada when in fact they have not.

The problem is not in vetting citizenship applications, but rather in the time it is taking to complete the verification. The processing time for these more complicated applications is approximately five years from the date of initial submission, which makes it about nine years from the time the individual first landed in Canada.

No surprise that these would-be Canadians are angry and frustrated. Who wouldn’t be if they had worked, paid taxes and did all the things that Canadian citizens are expected to do but yet are not afforded the full rights and benefits of Canadian citizenship? If the government is truly committed to creating a ‘faster, more flexible’ immigration system, this undertaking should not cease once newcomers settle in Canada.

What’s in a Name?

February 27th, 2013

When it comes to Canadian immigration, actually quite a bit is in a name, especially if the name is “Murphy” or “Sharma”.

Canada has become a magnet for young unemployed and underemployed workers from Ireland. The Murphys of the world and their countrymen have seen a dramatic rise in their fortunes when it comes to Canadian immigration. They are among the beneficiaries of Canada’s International Experience Class (IEC) of immigration. Under the program, Irish citizens below the age of 36, can come and work in Canada for up to two years, without a prearranged job. After one year of skilled work in Canada, they can apply for a Canadian permanent resident visa.

What was once the domain of backpackers looking for a working holiday has become an easy pathway to Canadian citizenship for down-on-their-luck Irish engineers, lawyers, and tradespersons. There is no doubting the popularity of the IEC visa program. This year’s allotment of 6350 free passes was scooped up in a couple of days. But despair not Irish readers, next year our Immigration Minister plans to raise the quota to 10,000, which will mark a 100% increase from 2011.

Contrast the foregoing with the likely Canadian immigration experience of someone named “Sharma”. For one thing, there is no program that allows citizens of India to come work in Canada without an arranged job offer from a Canadian employer. Even with a genuine offer of employment, it is hit or miss as to whether Canadian visa officers will issue a work permit. As likely as not, the work permit application will be refused because it is felt that the applicant will not leave Canada when the visa expires, on the grounds of “insufficient ties to the home country” and “poor prospects for employment in the home country”.

In essence, it is much easier to come work and then immigrate to Canada, without a job offer, from Ireland than it is to come work and then immigrate to Canada, with a job offer, from India. It does seem to smack of unequal treatment. Why would our officials think that an unemployed Irish national without an arranged job offer in Canada is more likely to leave Canada when his/her visa expires than the employed citizen of India with a job waiting in Canada?

On a related matter, it strikes me as quite unfair to put out the welcome mat for thousands of Europe’s “poor and huddled masses” while at the same time terminating the permanent resident applications of almost 300,000 individuals from Asia and Africa, who followed the rules and waited patiently, year after year, for a chance to come to Canada.

Pre-February 28th, 2008 Applicants Have Had Their Day in Court

January 30th, 2013

Earlier this month, the Federal Court heard arguments in a number of joined cases against the Minister of Citizenship and Immigration in relation to the government’s plan to terminate almost 98,000 Skilled Worker permanent resident applications. Including dependents, some 280,000 people will be affected by the court’s decision.

The lawyers who appeared before Justice Rennie on behalf of the applicants were my co-counsel Mario Bellissimo as well as Lorne Waldman, Rocco Galati, Matthew Jeffery and Lawrence Wong. I commend all of them for their demeanor and persuasive presentations.

Each lawyer attacked the government’s position on separate grounds but with the common goal of striking down the legislation that permits the Immigration Minister to toss out the applications before assessing them. Bear in mind that some applicants have been waiting in line for more than seven years.

Mr. Bellissimo’s main argument, put forth on behalf of our clients, is that the enabling legislation, subsection 87.4 (I) of the Immigration and Refugee Protection Act (IRPA) violates subsection 15 (I) of the Canadian Charter of Rights and Freedoms (the Charter).

It is submitted that the manner in which Citizenship and Immigration Canada (CIC) processes applications for permanent residence leads to discrimination on the basis of an applicant’s national origin, an enumerated ground under subsection 15 (I) of the Charter. This is so because applicants may only submit their application to specified visa offices for processing, depending upon either their country of legal residence or their country of citizenship.

Processing times at different visa offices vary greatly and as a result an individual’s national origin will determine the rate at which his or her application is processed. CIC prioritizes certain visa offices – and thus certain nationalities – over others and therefore termination of applications at this stage will disproportionately affect those applicants who submitted to visa offices not prioritized by CIC. Consequently, it is argued that subsection 87.4 (I) is contrary to the Charter and should be struck down as having no force or effect.

To support his position, Mr. Bellissimo relied upon statistics which indicate that visa offices in the Americas and Europe managed to process approximately 90% of their backlogged applications while visa offices in Africa, the Middle East, and Asia only processed about 40% of their backlogged inventory.

To be fair, it should be noted that the Immigration Minister, through counsel, has responded to all of the arguments raised by the applicants and has asserted the right of Parliament to pass legislation it deems proper in the circumstances.

Now we await Justice Rennie’s decision. Even that may not bring this saga to an end, as the losing side will have the opportunity to appeal.

The Measure of Canada’s Compassion?

January 3rd, 2013

It is a trite, but true, saying that the measure of a society lies in its treatment of its weakest and most helpless citizens. By this standard Canada comes up quite small, particularly when you consider the treatment accorded to one young and extremely vulnerable Canadian citizen.

Sabreena Shabdeen is in a precarious position through no fault of her own. She is a 17 year-old with significant autism and resides with her parents in Paterson, New Jersey. Her parents have an appointment with US immigration authorities in the coming days and face the prospect of being deported to Sri Lanka, their country of nationality. They have decided that, given the circumstances, Sabreena would be better off if she were to return to Canada, the country of her birth.

Canadian authorities are aware of all the relevant facts and, while they don’t deny Sabreena’s right to live in Canada, have done precious little to assist her.

Ontario Youth Services advised that there was nothing they could do until Sabreena makes her way into the province. How she gets there is not their problem.

The Department of Foreign Affairs, tasked with assisting Canadians in distress abroad, was just as dismissive. They suggested Sabreena apply for a Sri Lankan passport.

Citizenship and Immigration Canada (CIC) refused to allow Sabreena’s parents permission to enter Canada temporarily for the purpose of participating in Sabreena’s psychological assessment and the establishment of a Life Plan by an accredited Ontario health service provider. They did this even though the health service provider advised that it was essential that the parents participate in the process because Sabreena, for the most part, does not communicate in a meaningful way.

CIC’s decision to refuse entry to Sabreena’s parents is based, in part, on the belief that they will not leave Canada at the end of their temporary stay. In the past, they had made an unsuccessful asylum claim in Canada. CIC’s decision is, in my opinion, a red herring because there are enforcement provisions in the law that would allow CIC to remove Sabreena’s parents, if they fall out of status.

The decision to refuse entry is now being challenged in the Federal Court, but is not likely to be heard and decided for a number of months.

Sabreena’s case underlines the challenges faced by Canadians with disabilities. As if life itself isn’t tough enough.

You can read more about this story in a recent Globe and Mail article.