2021 Canadian Law Blog Awards Winner

British Columbia Will No Longer Hold Migrants In Provincial Jails: Will Other Provinces Do The Same?

by Ronalee Carey Law

July 2022

I formerly assisted a refugee claimant who arrived from an African country through a human smuggler. He made his refugee claim at the airport upon arrival in Canada, immediately admitting that the passport he carried was not his and that the photo of the passport holder had been replaced with his own. My client had no identity document in his own name; the smuggler told him only to carry the false documents he had been provided. He was fleeing for his life and had done what he was told.

My client spent the next ten days in the Ottawa-Carleton Detention Centre, a provincial jail notorious for its poor conditions. He was finally released after his cousin couriered his photo identification.

Arrivals to Canada can be detained, like my client, where they cannot establish their identity. Those to be deported may be detained if there are concerns that they are a flight risk. Individuals can also be detained if they are deemed a risk to public safety.

Canada has only three immigration detention centres. They are located in Toronto, Ontario, Laval, Quebec, and Surrey, British Colombia. Immigration detention centres are similar to minimum security prisons, and children are allowed to stay with their parents. In cities with no immigration detention centre, individuals are placed in provincial jails alongside the general inmate population.

Imagine fleeing for your life, arriving in Canada, being handcuffed, put in a prison jumpsuit and placed in jail even though you’d never committed a crime.

Sixteen people have lost their lives while detained since 2000. The horrible conditions for migrants in prisons have long had advocacy groups fighting for change.

Finally, one province is standing up for migrants. Citing human rights concerns, British Columbia has ended an arrangement with the Canada Border Service Agency to house detained migrants in its provincial jails.

We will now wait to see if other provinces will follow suit.

Super Visas Get Even More Super

by Ronalee Carey Law

June 2022

IRCC has announced changes to the super visa program. As of July 4th, super visa holders will be allowed to stay in Canada for up to five years and will be able to request an additional extension of a further two years. In addition, medical insurance may become cheaper as IRCC will designate non-Canadian companies from which insurance can be purchased.

The announcement does not specify the duration of medical insurance that will be required. Currently, proof of insurance need only be provided for a year, despite the super visa being valid for a two-year stay in Canada. Individuals who fail to renew their policy may leave Canadian hospitals with unrecoverable bills, should the individual or their child/grandchild be unable to pay the bill.

Processing times are a significant impediment to the program, though they vary widely depending on the country of citizenship. Here are a few of the processing times listed on the IRCC website:

            USA - 449 days

            India - 146 days

            Haiti - 66 days

I’ve always seen the super visa program as a ‘bait and switch’. IRCC will never be able to offer enough spots in its Parent and Grandparent Program to meet demand, and the super visa program is billed as an alternative. Increasing the time parents and grandparents can spend in Canada only creates a longer forestalling of the inevitable; eventually, the parent/grandparent will have to leave Canada. The super visa program only requires the child/grandchild to earn the low-income cut-off. To sponsor a parent or grandparent, you must earn 30% above the low-income cut-off. As a result, many children/grandchildren will never qualify to sponsor their parents/grandparents. Those eligible must be selected in the ‘lottery’ to be able to sponsor. Only a precious few can apply for permanent residency.

By the end of a seven-year ‘visit’ to Canada, many parents/grandparents will no longer have a residence in their country of origin, will have few close friendships, and generally will have established themselves in Canada. Therefore, I foresee many more applications for permanent residence based on humanitarian and compassionate considerations.

Early Adopters of IRCC’s New Permanent Residence Portal Ignored by IRCC as Applications go Unacknowledged

by Ronalee Carey Law

May 2022

When IRCC came out with their new Permanent Residence Portal, I jumped on the chance to submit applications electronically through a portal that allowed me to log in on the first try without having to resort to a different browser, refresh, log in with incognito mode, hit the backspace key a dozen times, or offer my first-born as a living sacrifice. Submitting applications online meant no lost documents, no courier fees, and saving trees. Given a chance to submit online, almost all my clients opted for the electronic option.

I now regret having advised family sponsorship applicants to go this route. My clients, and those who were interviewed for a recent Toronto Star article, have been waiting months for an acknowledgement of receipt. Yet, paper applications submitted months later have already received application numbers, medical and biometric instructions, work permits, and in some cases, even approvals of their applications. 

I acknowledge that IRCC is under tremendous strain. There is a massive backlog of applications. IRCC is searching for case processing agents in multiple cities across Canada. However, a backlog doesn’t justify inequitable treatment.

Delays most impact spouses who are abroad. Recently, a colleague acquired IRCC statistics showing that while 91% of spousal sponsorship applications are approved, only 47% of visitor visa applications are accepted for people with spousal sponsorship applications in processing. Imagine being forced to live apart from your spouse for almost two years after marriage without being able to visit. I wonder, how many relationships are buckling under this strain?

Without an application number, there is no way to check the status of an application. IRCC’s new status tracker for sponsorship applications is virtually useless until the initial completeness check is done. And even then, it is of little utility, as it is often not updated.

IRCC is working on moving more applications online. Until I am assured that processing procedures for new online applications are established, I won’t be an early adopter.   

Reprieve for International Students Whose PGWPs are Expiring: 18 Month Extensions will be Granted

by Ronalee Carey Law

 April 2022

Today, IRCC announced that it plans to grant 18-month extensions for post-graduation work permits that expire in 2022. This announcement will be welcome news for international graduates who have been anxiously awaiting news of a program to help them stay in Canada while waiting to apply for permanent residence.

Extension applications can be submitted as of ‘summer 2022.’  According to the announcement, the temporary policy will be available to those ‘in Canada.’  It is not clear if those students whose PGWP permits have already expired and who have left Canada will be able to apply. 

Until clarification is provided, we must presume anyone whose PGWP has or will expire before they can submit a PGWP extension application should apply to remain in Canada as a visitor. A restoration application will be needed for anyone whose PGWP is expired when they submit their application for a Visitor Record. Restoration applications are available for 90 days after the PGWP expires. Anyone who is past the 90-days must leave Canada and re-enter as a visitor, applying first for an eTA or visitor visa if required.

Those with visitor status in Canada will not benefit from maintained status and will only be able to start working once they have their new PGWP. Those who will apply for their new PGWP before their current PGWP expires will have maintained status and will be able to continue working so long as they remain in the country until they receive their new PGWP.

The announcement also states that Express Entry draws will resume in ‘early July.’  The announcement refers only to ‘invitations’; presumably, they will be for all programs, including the Federal Skilled Worker Program and the Federal Skilled Trades program. From December 2020 to September 2021, there were draws for the Canadian Experience Class but not for the FSWP or the FSTP. 

If ‘no program specified’ draws are held, international graduates will be looking at stiff competition, as there are currently over 200,000 applicants in the Express Entry pool. Of these, almost 50,000 have points over 450. If CEC-specific draws are held, this will reduce the minimum score required for an invitation to apply for permanent residence, as the pool of applicants will be lower.

For every action, there is an equal and opposite reaction. Allowing PGWP extensions will negatively affect current international students. Upon graduation and acquiring a year of Canadian work experience, current students will be competing against individuals who have had the opportunity to acquire four years of work experience in Canada. One year of work experience gains 35/40 comprehensive ranking system points (depending on whether the applicant is single or has a spouse or common-law partner). Those with four years of Canadian work experience get 63/72 points. 

The announcement also contained welcome news for TR to PR applicants. They may obtain work permits valid until the end of 2024. Their spouse or common-law partner will be able to apply for an open work permit. Applicants who prefer to leave Canada until their application is complete may do so. These policy changes will also take effect ‘this summer’.