Yes, You Really Do Need a Lawyer to Help You

February 2020

On its website, Immigration, Refugees and Citizenship Canada (IRCC) has the following statement written:

newsletter

The department’s twitter account has posted a similar statement, which I blogged about last March. 

A recent Federal Court decision has once again caused me to become riled up about IRCC’s position that representatives are unneeded.

The Federal Court application was to review the denial of an application for permanent residence based on humanitarian and compassionate grounds. The court upheld the denial of the application, noting that ‘…the Applicants’ H&C submissions consisted of a mere seven pages’. Further, the court stated that ‘there are no references to the country documentation in the actual submissions.’ The court noted the absence of ‘submissions on the BIOC as relating to education’.

How would an unrepresented applicant even know what BIOC is?

I recently submitted an application for permanent residence based on humanitarian and compassionate ground.   The application was primarily based on the best interests of the client’s children who are Canadian citizens (best interests of the children = BIOC). I included nineteen documents in support of the client’s application, in addition to his Statutory Declaration. I provided eight academic articles to support the ramifications to the children should they be separated from their father. My legal submissions referenced two Supreme Court of Canada decisions along with numerous lower court decisions. I debated whether to include the tripartite test set out in Williams, as subsequent jurisprudence questioned its use. In the end, I omitted it.   Hours were spent researching, reviewing documentation, and then writing what ended up being a twenty-page document setting out why my client should be permitted to remain in Canada. How could someone without legal assistance possibly be able to put together a similar application? And yet, the Federal Court requires a level of legal analysis well beyond the capacity of the average applicant.

But don’t worry, the Canadian government will treat your application equally, whether you use a representative or not.

Or maybe not.

More Angst about the Parent and Grandparent Sponsorship Program - Is It Time to Expand the Concept of 'Family'?

January 2020

Well, January 1st came and went without the re-opening of the parent and grandparent sponsorship program. First, on December 16th, the government announced that details of the 2020 program would be ‘available soon’. Then, on December 30th, the government sent out a second announcement that opening of the program would be ‘postponed’. Further information will be available by April 1, 2020.

I was not surprised that the program’s reopening was delayed. In May 2019, the Canadian government quietly settled a lawsuit over the 2019 version of the program, and allowed 70 sponsorship applications to proceed despite the sponsors not having been able to submit the online application form. To avoid litigation again this year, the government must do the hard job of coming up with a program that is fair to all applicants, in a situation where there are many more applicants than allotted spaces.

As much as I enjoyed the opportunity to be interviewed about the issue for CBC, the delay is causing much stress for families affected.

It could also cost us skilled workers. Last October, a leading child psychiatrist threatened to leave the UK to go to Australia if his mother was not permitted to remain in Britain. He was her only child, and she was widowed with no one to care for her in India. Similar concerns were expressed regarding the immigration program in New Zealand, where an increase in financial requirements meant many immigrants would no longer be able to get visas for their parents.

In the Canadian immigration system, skilled immigrants can only include their spouses or common-law partners and dependent children under the age of 22 in their applications for permanent residency. For the purposes of skilled worker immigration, their ‘families’ do not include their parents, grandparents, or siblings, even though we normally consider these individuals as immediate family members. For example, the Canada Labour Code provides bereavement leave for the following ‘immediate family’ members: The employee's spouse or common-law partner; the employee's father and mother and the spouse or common-law partner of the father or mother; the employee's child(ren) and the child(ren) of the employee's spouse or common-law partner; the employee's grandchild(ren); the employee's brothers and sisters; the grandfather and grandmother of the employee; the father and mother of the spouse or common-law partner of the employee and the spouse or common-law partner of the father or mother; and any relative of the employee who resides permanently with the employee or with whom the employee permanently resides.

Maybe it’s time that we expanded our definition of ‘family’ for immigration purposes. The amount of settlement funds required is based on family size. If applicants want to include their parents, then they would be required to meet the settlement funds needed for a family size that includes those parents. Also, all members of the family must pass an immigration medical examination. If any family member cannot pass the examination, then the entire family is excluded. This should allay concerns about undue strain on our heath care system. When designing the program, the government can also restrict who can be included as a family member as it sees fit. Perhaps only siblings under a certain age, or who unmarried, could be included (similar to the definition of a dependent child). Perhaps parents could only be included when the applicant has a child who will need care in Canada. This would reduce the strain on our childcare system, especially as we’ve yet to develop a national childcare system in Canada.

100,000 people tried to apply for 20,000 spots in this program last year. Allowing people to immigrate with their families would reduce the stress on this program and allow Canada to attract skilled workers. It will also prevent ‘reverse migration’, which happens when skilled workers leave Canada to return to their countries of origin in order to care for their parents.

Biometrics can now be done in Canada

December 2019

The much-anticipated launch of in-Canada biometrics collection started on December 3rd.

First, an explanation as to what ‘biometrics’ are, and what they are used for.   ‘Biometrics’ refer to photographs and fingerprints. They are collected from applicants wishing to come to Canada as temporary or permanent residents. They are used to confirm identity, to check for criminality, to look for a record of previous entries to Canada, and to see if the individual has previously made a refugee claim or has adverse immigration history in a country Canada shares information with. We previously wrote about biometrics; you can read more here.

In order to give your biometrics, you must first have a biometrics collection letter. If you wish to have your biometrics taken in Canada, you can make an appointment at a Service Canada location. Check this link for locations where you can give your biometrics, both in and outside of Canada.

Now that biometrics can be given in Canada, those previously exempt must now give them. This will affect many individuals looking to extend their work or study permits. US citizens continue to be exempt for temporary resident applications but must give biometrics for applications for permanent residency. Visitors who do not require a visa to come to Canada do not need to give biometrics but will if they wish to study or work in Canada. Check this link to see if biometrics are required

Biometrics can be given in Canada even if the application is being processed at a visa office outside of Canada. This is great news for those applying for permanent residency who are in Canada with temporary status. Previously these individuals had to leave Canada to have their biometrics done. Similarly, those whose applications are being processed within Canada can give their biometrics outside of Canada. This provides more flexibility for frequent travellers.

How long can I stay in Canada as a visitor?

August 2019

How long visitors to Canada can stay is an issue that frequently comes up with my clients.  The general policy is that visitors to Canada may stay for up to six months, unless the border services officer at the airport or land entry limits or extends the six-month time period.  If the time period is to be something other than six months, then either the passport will be stamped, with a date underneath indicating when the person must depart Canada, or a Visitor Record will be provided with an expiry date for the length of the stay.  If a visitor wishes to extend their stay after entering Canada, they may apply to do so.   If granted, they will be provided a Visitor Record indicating the new date they must leave Canada by.

Why setting up your own business after graduation is a really, really bad idea for international students in Canada

June 2019

We recently had a client come to us for a consultation appointment. Her post-graduation work permit is expiring in November of this year.  Since graduating with her master’s degree in 2016, she had been working at building her own business.  The client started her own business as this was the norm for those in her profession.  She had registered the business and was doing well.  She had many clients and was paying Canadian income taxes.