Direction Legal

Immigrating to Canada? The Complications, Solutions and Benefits

as published in lawyer-monthly.com in September, 2020

Canada is often seen as a safe, welcoming new home for immigrants and refugees. With the country having a different approach to its neighbour, we decided to ask Andrew how the immigration system often welcomes potential immigrants and how this impacts Canada and its economy. Touching on the complications that arise, Andrew also discusses why litigation in this area occurs and what should be done to avoid such cases arising.

Reports state that immigration is helping to shield Canada from global slowdown^[1]; how has the immigration system changed over the past decade to enable this?

It was reported that Canada has largely avoided the worst impact of an economic slowdown suffered by other advanced economies in recent years through a proactive immigration program.

Over the last ten years, the economic part of the Canadian immigration selection system has evolved to a more targeted approach to select the best and brightest immigrants to boost the Canadian economy. Canada is one of only a few countries in the world that has a program that is dedicated to bringing in new immigrants. It has a multifaceted approach that favours those immigrants who have come to Canada as students or temporary foreign workers over those who have no Canadian related study or work experience. The program is called express entry for skilled workers and is modelled on the immigration programs in Australia and New Zealand. A pool of potential immigrants is created and those who have the highest number of points are sent invitations to apply taking into account their age, education, language ability in English and/or French, work history including Canadian work history and adaptability.

Those potential immigrants who apply must meet a certain pass mark to be granted immigrant visas. Canada’s previous immigration system was based on potential immigrants meeting a certain point threshold. Very few points were awarded for Canadian related work or education experience. As a result, there was a huge backlog of potential immigrants that took several years to process. The new system invites only those immigrants with the highest scores. The number selected matches the government’s ability to process their applications within six months. A greater emphasis under the new immigration system is also placed on potential immigrants selected by the Provinces to meet their local employment needs. This was a change from the way the previous immigration system worked where immigration selection was left to the Federal Government. Business immigrants are now largely left to the Provinces with the Federal Government abandoning the passive investor program. Only one Province, namely Quebec, has its own passive investor program that gives preference to those potential immigrants who speak French and are planning to settle in Quebec.

Nonetheless, what complications remain to prevail for those wanting to immigrate and work in Canada?

In answer to the continued difficulty for some potential immigrants to come to Canada, it must be recognised that the whole selection system is based on Canadian related work experience or education. It is also very difficult to be selected from the immigration pool without arranged employment which is easier to obtain if the potential immigrant is already here in Canada as a student or temporary foreign worker. Older potential immigrants also find it difficult to obtain an invitation to apply because the point system is weighed in favour of younger immigrants. Lack of language skills in English and or French is also a deterrent for potential skilled workers or business immigrants who lack these language skills.

Immigrant classes exist in Canada’s immigration system, and the Canadian immigration program has allocated spaces in an effort to reunify close family members in Canada such as spouses, common law partners, children and parents with their sponsors in Canada. There are spaces allocated with Canada’s immigration level for successful refugees who have established their claims from within Canada or as refugees outside of Canada who are selected by visa offices abroad. There is in place a program for caregivers who are needed to look after children or elderly persons requiring assistance. This program also is a pathway to permanent residence in Canada. Finally, there is the ability of potential immigrants to apply on humanitarian and compassionate grounds.

Whilst other jurisdictions are trying to slow down immigration, Canada is aiming to increase the movement – how so?

As to whether there is a demand by potential immigrants wishing to settle in Canada, the answer is yes. We have seen large numbers of students, temporary foreign workers or immigrants or as refugee claimants all wishing to settle in Canada. This demand is no doubt in part a reaction to the negative immigration policies pursued by the Trump Administration in the United States. Another factor is the positive way that Canada has handled the coronavirus pandemic. It must be emphasized that historically there has always been a demand for potential immigrants who wish to settle in Canada because it has always been perceived abroad as a country that welcomes new immigrants. Finally, Canada suffers from a low birth rate, so immigration is an important component of the expansion of Canada’s economy.

Has the coronavirus pandemic had an effect on immigrant services?

The arrival of the coronavirus pandemic has caused a cutback in services both in Canada and abroad that has further increased processing times. Some programs, such as the sponsorship of parents, have been largely put on hold as a result of the coronavirus pandemic. The processing of refugee claims has also been impacted by an increased backlog. Finally, visits to Canada for discretionary purposes such as tourism, recreation and entertainment have been curtailed. Travel must be for an essential purpose such as the reunification of families, people who have obtained approval for work permits or permanent residence status or to provide essential services to the Canadian economy.

Has there been an increase in immigration related litigation?

As you can imagine, the decisions of immigration officers adjudicating an application for temporary residence or permanent residence whether in Canada or abroad or by the Tribunals adjudicating refugee claims, are very important to the lives of potential immigrants to Canada. As a result, there is considerable litigation involved where a potential student, temporary foreign worker, member of the family class or refugee claimant is turned down by the responsible official or Tribunal member.

Another cause of the increased litigation is the mistakes made by some immigration consultants in Canada and abroad who lack the skills necessary to properly represent clients. Those who practice in Canada or abroad are supposed to be regulated. However, the system of regulation of immigration consultants in Canada has largely been a failure due to the ineffectiveness of the regulatory bodies created by the Federal Government to regulate immigration consultants. There are also ghost consultants who practice outside of Canada who are not licensed and there is no effective mechanism in place to regulate them in the interest of protecting the public.

Decisions of the various Divisions of the Immigration and Refugee Board can also be reviewed by the Federal Court. Any review by the Federal court requires the litigant to establish a fairly arguable case otherwise Leave to proceed is not granted. Any appeal of a Federal Court decision requires a certified question that transcends the facts of a particular case and raises important legal issues that need to be resolved by the Federal Court of Appeal.

Litigation generated on the selection side of immigration is not the only litigation that occurs. There is considerable litigation on the enforcement side where an immigrant runs afoul of Canadian immigration law due to criminal or related offences, misrepresentation or failing to meet Canadian residency requirements. The latter case is where an immigrant spends too much time abroad thus jeopardizing their immigration status in Canada. There is also considerable litigation involving refugee claims. There is in place a generous appeal mechanism available to failed refugee claimants. About 50% of the caseload of the Federal Court is related to immigration or refugee related issues.

According to Minister of Immigration, Refugees and Citizenship Ahmed Hussen^[2], Canada’s new multi-year immigration levels plan “sets out the highest levels of permanent residents that Canada will welcome in recent history”. What changes do you see on the horizon? How will this impact your clients?

As far as the future goes, whatever government is in power, I do not see immigration levels changing much although there may be reallocation in terms of which class of immigrant is favoured by the Government in power. I anticipate that refugee claimants who seek to enter Canada irregularly especially from the United States will be targeted in the future. As the economy seeks to recover from the pandemic, a greater emphasis will be placed on economic immigration, temporary foreign workers who possess needed skills and business immigrants who have the knowledge and resources to help revive the Canadian economy. While family class reunification will still be an important component of Canada’s immigration plan for spouses, common law partners and children, less priority will be given to parents who are usually not significant contributors to Canada’s economy but rather are users of our medical health care system. Refugee claimants who come to Canada from the United States will be shown less favour unless they have a family connection to Canada.

As our clients tend to come from either the economic class or family class we anticipate that clients who wish to come to Canada will occupy a significant part of our practice not only for immigration related services but also other services such as purchase of property, business related issues, family related issues, wills and estates and other related services. It must be emphasized that Direction Legal LLP is a full-service firm and we are able to provide services in many law related areas and in different languages.

Andrew Wlodyka is an immigration lawyer with Direction Legal LLP. He can be reached at Andrew@directionlegal.com.

^[1] https://www.wsj.com/articles/immigration-is-helping-shield-canada-from-global-slowdown-11583074801