2018: Feeling Good

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There is a lot to love about Canadian immigration these days. Our immigration minister is the right person for the job: a refugee, a lawyer and former immigration lawyer. There is a general perception that our programs are fair yet firm (just stay off the Canada subreddit). Express Entry is ticking along nicely. You can get through to a human at IRCC and sometimes a human will respond, even use an exclamation mark here and there (massive shout-out to “Lucy” at IRCC). Whoever is running the @IRCC Twitter account has a sense of humor, previously unseen (is that you, Lucy?). Here in Nova Scotia, we have new programs and a provincial immigration office that is fast, responsive and competent. We’ve also almost finished a balmy winter worthy of Weather Smugness at least when we talk to people in Alberta and Ontario. Everything is relative here in Canada.

On the surface, it’s sunshine and roses. But of course it’s not really. There are serious, prevailing, systemic problems. And I’m not only talking about the increasing inland refugee backlog, which is due to a lack of resources and decision-makers. There are other problems, all I think at least partly related to a collective myopic-optimism that has lulled us into thinking that everything is going just fine, thank you very much.

Parent/Grandparent sponsorship: in 2017, IRCC changed this process to a lottery. But the details were never sorted out, so ineligible people could throw their names into the lottery, and throw off everyone else’s chances of getting selected. A year later, IRCC promised to tighten up the process. But when the program reopened in January 2018, it became apparent that almost nothing had changed – one optional question was added to remind people they should be eligible. Sad, sad trombones.

Caregiver program closes: On February 5, 2018, IRCC announced that the 2014 caregiver “pathway to permanent residence” pilot expires in November 2019. Over the years, it has become harder for caregivers in Canada on work permits to qualify for PR and now there is no assurance that after November 2019 there will be an option to get PR. My humble suggestion is that the NOC for caregivers get listed under the Federal Skilled Trades class to facilitate permanent residence through Express Entry, and recognize that (a) caregiving is a skilled occupation; and (b) people who take care of children and the elderly in Canada should be valued the same as anyone else, and deserve a means to obtain permanent residence, the same as butchers and bakers and candlestick makers.

No more self-employed farmers: For as long as I have been practicing law (15 years), Canada has had a self-employed permanent residence program for artists, athletes and farmers. It’s not a particularly well-used program, but is helpful especially since many immigration programs don’t easily recognize self-employment as qualifying work experience (I’m looking at you, CEC and Atlantic Immigration Pilot). As of March 10, 2018, no more farmers can go through that program. Wait, what? Wait, why?

The new and improved family class: It’s amazing to me that in December 2016 when IRCC streamlined the family class, it increased the document checklist from 3 pages to 10 pages and required that applications be submitted on paper and then later linked online, which has proven to be a vexing problem. We joke about it around the office, but for people who are doing the applications themselves, it’s incredibly confusing. Love prevails, but it can be messy.

Refugee Resettlement is too slow and numbers are too low: We were on such a roll in 2015 but since then, the numbers have dwindled. Processing times are increasing, and spots for government assisted refugees are static. IRCC recently announced 1000 more female refugees would be resettled, which is great, but a lot more should be done to bump up the quotas, streamline the process and get rid of the backlog. The 2015 situation was not a blip, it’s the new normal. Canada needs to have ongoing infrastructure and contingency plans.

Today, someone asked if I thought they would be welcome in Canada. They qualify for permanent residence and are exactly the kind of newcomer Canada is trying to attract. But they were feeling insecure about immigrating, and that everything they had read seemed so impossibly positive, there must be a catch.   I told them I thought they would be welcome here, but starting a new life anywhere is tough, even when you plan properly and things go smoothly.

It is the first time I have ever been asked that question.

So, yes, despite everything, feeling pretty good.

 

The Parent (Sponsorship) Trap

Yesterday, December 30, 2017, IRCC published the Ministerial Instructions for the 2018 Parent Sponsorship Program, set to open on January 2, 2018.[1]

Cynical people may call it a last minute effort to feign preparation and forethought before the opening of an immigration program that will impact ~100,000 Canadians and their ~100,000 overseas parents, but in IRCC-land, it’s a generous display of transparency and clarity. With 2 days to spare!

This is the way immigration works nowadays: programs open and close on a dime, forms change without notice and announcements that will impact hundreds of thousands of futures in Canada are made during a 3-day holiday, with the program opening on day 4.[2]

How the average person is supposed to stay on top of these rules and make sense of the constant flux is anyone’s guess.

The 2017 lottery was a decent enough idea set loose on a spectacularly poor system: anyone could throw their name in, but when it came time to applying, it turned out that few of the lottery winners were even eligible to sponsor their parents. Approximately 100,000 people put their names into the lottery, with only 10,000 available spots. When the first 10,000 were drawn in May, something in the realm of 4,000 actually applied (and of those, many were ineligible). By September, another draw had to be made to make up for the shortfall. We don’t know how many of September’s lottery winners were eligible, but they were drawn from the same pool of (mostly ineligible) 100,000 wannabe sponsors. And as usual, the big questions and critical information is either obfuscated or avoided altogether.

Take for example, this gem of an announcement IRCC made in September after the second draw of the PGP 2017. Spun as great news! there was no information about the actual details, such as:

  • How many people who won the first draw actually submitted applications?
  • Of those submitted, how many were eligible?
  • How many people were selected in the second draw?
  • What changes will be made to the 2018 program to avoid this kind of system failure?

On December 22, 2017, IRCC announced the 2018 program would open again on January 2, again in lottery form, including this note:

To help ensure the efficiency of the system and to allow as many eligible sponsors as possible to bring their parents and grandparents to Canada, it is important that only those who meet the sponsorship eligibility requirements submit an “Interest to Sponsor” form. Additional questions have been added to the 2018 version of the “Interest to Sponsor” form to help potential sponsors self-assess whether they are eligible to sponsor.

I am curious to see the new version of the Interest to Sponsor form, and in particular what self-assessment of sponsorship eligibility looks like, since last years’ version also had what (IRCC believes, anyway) were clear guidance on eligibility and a self-assessment tool. Similar to how my 7-year-old assessed herself eligible to watch UFC 219 (Cyborg v. Holm) last night. Maybe next year, darlin’.

Let’s hope that’s not the theme song for the 2018 Parent Sponsorship Program.

 

[1] For those unfamiliar with this stream, this is one category of the “family reunification” immigration programs and represents approximately 5% of Canada’s annual immigration numbers, and allows Canadians to sponsor their parents’ or grandparents’ applications for permanent residency. In the past, the program was open to anyone who qualified (the usual sponsor income, medical admissibility, security clearances, etc. always apply) without any caps or quotas.  But a massive backlog built up, so in 2011, IRCC put the program on hold to clear some of the backlog. Since 2014, on the first business day of January of each year, IRCC has opened up the program and there is a cap on the number of applications that will be processed each year. In 2017, IRCC introduced the first “lottery” system, where, rather than everyone’s applications arriving at the IRCC processing centre on January 2 of each year, the lottery opens up on January 2 so anyone who wants to sponsor their parents can throw their name in, and a month later, the lottery closes, and the draw of 10,000 is made thereafter.

 

[2] But hey, who needs an immigration lawyer, right?!

 

EDITED: Coffee? Check. New Citizenship Forms? Check.

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[EDITED VERSION IN THE HARSH REALITY OF OCT 12]

Oct 11, 2017. Today is the day the new citizenship law comes into force. Sometime in the dead of last night, the IRCC elves uploaded the new forms and checklists to the website. [EDIT: It turned out that the IRCC elves were half asleep (or just messing with us) when they uploaded the forms online in the wee hours of Oct 11. So once typed, the forms could not be printed. This wasn’t corrected until about 3pm Atlantic time.]

Under the new rules, you must live in Canada for 3 out of 5 years as a permanent resident to qualify for Canadian citizenship. If you have also lived in Canada temporarily during those 5 years, each temporary day counts for half of a full day, up to a maximum of 1 year. So for example, if you were here as a student for 2 years, then became a PR, you can apply for citizenship after just 2 years living here as a PR within that 5-year window.

If you are between 18-54, you have to show proof of English or French language ability, you have to provide proof of filing CRA income tax returns and police clearances for any country you have lived in outside of Canada during the 5-year window. There is now an option on the forms to change sex designation.

The biggest surprise to me is the application fee is still $630 for adults and $530 for minors*. It used to be $200. I was hoping that with the new rules, there would be a renewed benevolence on the fee issue, to ensure citizenship is not cost-prohibitive. Sadly, that didn’t happen. [EDIT: it’s actually $100 for minors applying with an adult. The $530 is for minors who are applying for citizenship alone.]

We have a pile of applications waiting to be assembled and a courier heading to Cape Breton this afternoon to deliver them to the IRCC Case Processing Centre in Sydney. [EDIT: IRCC’s external (and apparently also internal) computer system crashed badly yesterday. Nevertheless, we still made the courier deadline and sent our first package of applications to Sydney at 4:30. I had a quick word with the applications before they left the building. Godspeed guys, and good luck in Sydney.]

First giant coffee of the day is finished.

Here’s to being good-busy.

[EDIT: But next time, let’s try not to have a heart attack.]

North Star Immigration Law is moving!

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After 10 years in the wonderful St. Paul’s Building, we are moving our office to 5475 Spring Garden Road on Friday, August 4, 2017. Our new location is spacious and bright and reflects who we are as a law firm.

Stay tuned for pictures of the new space, including all the reclaimed and historic elements we have incorporated, and our new awesome painting by Kent Senecal.

Moving to a new office: yay!

(Packing right now: boo!)

Spring 2017 – Immigration Round-Up

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So much has been going on here at North Star Immigration Law that my head is spinning. We are expanding to a bigger space in a few months, have hired a new articling clerk and are in the process of a website revamp. To all the people whose calls I haven’t returned in the past few weeks – my apologies, I am getting to you!  But all of this pales in comparison to the changes afoot in immigration law and policy.

The new permanent residence process for spouses of Canadians is in full swing, and the reason I know this is that the lawyers in our office who deal with these applications are often seen pounding their heads on their desks trying to “link up” the application to the online system, as required. What was supposed to make things simpler has turned out to be a massive pain with more steps, more minefields and more opportunities for mistakes. But who ever said love was easy?

Speaking of love, I am feeling very sad for the 85,000 disappointed candidates who did not get selected in the parent sponsorship lottery. The lottery was hastily put together in mid-December. It was ill-thought out and it is going to create headaches for IRCC for months – if not years – to come. None of our clients (who qualified to sponsor their parent(s)) were selected. Worse, most the people who were selected and have consulted us for help with the forms do not actually qualify, so won’t make it through the program. So it will be interesting to find out how many of the total 10,000 drawn are actually qualified to sponsor? Psst…IRCC – how about next year making the questions more specific to ensure no one puts their name in the hat without actually meeting the requirements? Just a thought.

In other news, the age of dependents will go up to 22 on October 24, 2017, with some transitional provisions. This is great news for a lot of people.

The citizenship rules will also change in terms of requirements to qualify for a grant of citizenship and, as of the Federal Court’s decision yesterday, revocation proceedings. To put it politely, citizenship rules are still in flux, and will be for the foreseeable future.

Meanwhile, as the Parliamentary Standing Committee on Citizenship and Immigration for the Study on Immigration Consultants is underway, the new Atlantic Immigration Pilot Program (AIPP) has completely cut representatives out of this new program, which is being hailed as the be all and end all solution of Atlantic Canada’s immigration problem. Which is weird because there’s a rule that representatives must be authorized and disclosed (i.e. see s. 91 or IRPA or  “Concealed Representatives”). Under the AIPP, if clients or employers want to hire us to assist them, we are relegated to ghosting on the files only  – the NS Office of Immigration only communicates with the employers and applicants – there is no where we can even disclose ourselves as legal reps.

So that’s the round-up.

Yeehaw?

Hey, @CitImmCanada, where’s my mother?

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Many people have been waiting for news on the Canadian parent sponsor program, which was changed to a lottery system in late 2016. The program opened January 3, 2017 with a deadline of February 2, 2017 in which people could submit an online expression of interest for entry into the program.  The online form was so simplistic it frightened many of us – there were no eligibility questions, just a few personal details and contact information needed and voilà you’re in the lottery!

IRCC promised that sometime after February 2, 2017, 10,000 people would be selected at random to submit an application. Those 10,000 people would have 90 days to provide their documents to start the application process.  But when would this draw happen? And how? If some of those 10,000 didn’t actually qualify, what would happen to their spots?

IRCC has responded to some of these questions as follows:

…we can’t provide a firm timeline as to when potential sponsors will be contacted but we expect the letters will be sent in the next few weeks.

…the 10,000 who are randomly selected will then receive an email inviting them to apply to sponsor their parents or grandparents. They will have 90 days to send us their complete application. We will also email all those who were not chosen to let them know.

…As per Ministerial Instructions relating to the parent and grandparent program, a maximum of 10 000 sponsorship applications will be accepted for processing each year. 10,000 sponsors will be contacted and will have 90 days to submit a complete application.  

…If the Department does not receive 10,000 complete applications within the prescribed time frame, we will invite additional interested sponsors to submit an application. We expect this process to occur before the end of 2017

It doesn’t inspire a lot of hope that IRCC has taken over 2 months to do a computerized selection of the entries they have received.

In case you are stressed about this, look on the bright side: marijuana will be legal in Canada soon.

#20tweets in blog form about the growing “refugee problem” at Canada’s border

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Here are my 20 (ok, 21) tweets in blog form:

The people crossing into Canada via the US are not exploiting a legal loophole. It’s not illegal to ask for asylum in Canada.  The UDHR makes it mandatory to allow people to seek asylum  An inland or port-of-entry refugee claimant does not displace a regular immigrant. There is no queue when it comes to refugees. So there is no “queue jumping”.

Geographic and geopolitical luck means that Canada has smaller refugee #s than countries in Europe, but our system handles over 10,000 inland claims per year. Overseas refugee resettlement to Canada is a different category and a completely different process.

The asylum seekers we see on TV being “greeted” by the RCMP are detained, photo’d and fingerprinted. Their passports are confiscated. They are given conditional deportation orders. They are allowed out of detention only if their ID is confirmed, they are not a danger or flight risk and they are not inadmissible for security reasons.

Within a few days, medical and security checks happen and if they are eligible to make a refugee claim, a hearing will be held in 60 days. If you lose your refugee hearing, after limited appeal rights, CBSA will enforce the cond. deport. order you got when you first arrived. Unless you are from a country Canada is not removing people to, such as Syria, Iraq, Yemen, for example.  If that is the case, you are on an “unenforceable removal order” and can remain in Canada and get an open work permit for ~1 yr at a time. But you still have to report to CBSA and if they have any sense that you are a flight risk, they will detain you. Sometimes for years.

About our system: during @jkenney ’s tenure as Immigration Minister, the refugee determination process was overhauled. It used to take 3 years for a refugee hearing, now it takes around 60 days. If you are from a country that is considered safe the timeline is sped up to 30-45 days. There are obvious problems with such a short turnaround, such as gathering documents and preparing witnesses and translations, etc. But now people don’t have to wait here for years for their hearings, they are cycled through the system quickly. So they don’t have time to get very established in Canada before their refugee hearing.

It also means that after 2012, there have been fewer refugee claims and higher success rates.  The CCR has good stats on this.

The Safe Third Country Agreement may have seemed necessary back in 2012 when @jkenney was overhauling the system, but it’s not anymore. It forces people to sneak into Canada to make a refugee claim.  The most vulnerable often can’t sneak, so can’t come. The CCR has a great recent post on this.

The new Atlantic Immigration Pilot Program – a silver lining in a week of bleak

On January 27, 2017, the new Atlantic Immigration Pilot Program (AIPP for short) was announced then soundly eclipsed by the fallout from an ice storm, an immigration mess in the US and then a terrorist attack at a Quebec mosque.

So much for fanfare.

But the new program warrants a close look.  I am enthusiastic about it because of the implications for international companies looking to establish new operations in Atlantic Canada.

Until now, we didn’t have any provincial temporary programs to attract workers who could also become permanent residents in the long term. The only way company could transfer workers to Nova Scotia was through the federal intra-company transferee rules or waiting until it was established here for 2 years then using the NS Nominee Program, which is mostly a permanent residence solution.

Now, the AIPP will enable a company (existing or new), to become “a designated employer” and provided it meets the criteria (for legitimacy such as not undercutting Canadian workers, hiring locally, bringing in people with skills, ensuring people have proper settlement supports when they get here), it can start bringing in workers quickly.

Like in a month or 2.

Those workers will be able to work temporarily while they await processing of their permanent residence.

So the details are still being worked out and the program doesn’t officially open until March, but so far it looks like a real win for Atlantic Canada. And despite the events of the past week, the timing really couldn’t have been better for companies looking to set up in Canada.

Here’s to changing the immigration landscape in Atlantic Canada. Quietly.

#MuslimBan: Like it or not, Canada is in this rodeo.

Last week, in a small but symbolic gesture, Canada seemed to align with the US on the reopening of the NAFTA. I was disappointed that we didn’t stand with Mexico and criticize the rhetoric coming from the US on an agreement that no one seemed to be seriously questioning before the US election cycle. But I assumed our foreign affairs department had its reasons to keep quiet. What do I know about trade, anyway? I thought.

Then with an Executive Order, the US resurrected the Keystone and Dakota Access Pipeline plans. And this was spun as good news in Canada. Ok, I thought, maybe there is justification for Keystone, what do I know about pipelines anyway? But DAPL? It was just 6 weeks ago that we saw the protest and standoff tip in favour of the resisters. What was that for if the US was just going to override it with one felt-tipped, angry-handed signature?

And then came yesterday. Massive and seemingly spontaneous airport protests, stranded and detained passengers, confusion as to who the travel-ban applied to. And then a succinct injunction granted at 9:46pm that confirmed my suspicions that law can be witchcraft and a court application is like a spell. If you cast it right, you can change the course of history. Late into the night, videos circulated of arrival doors sliding open and grandmas and grandpas tumbling through. Like it was Platform 9¾.

It was a sad and sobering thing to witness. Distressing, really. The only lightness came from wondering what Trump’s Twitter reaction was going to be. If he can’t handle inauguration reports that conflict with his narrative, how is he going to handle a real defeat?

It’s very strange times when you agree with both David Frum and Michael Moore on the same issues. Even Jason Kenney tweeted constructively, saying Canada should allow anyone stranded by the EO in temporarily on humanitarian and compassionate grounds. Although he still hasn’t answered my question.

Given these events in light of the other promises made by Trump during and since the election campaign, it is imperative that going forward, Canada is principled and firm in our protection of refugees and upholding international human rights obligations.

First, we should suspend the Safe Third Country Agreement. It recognizes the US as being on par with Canada in terms of human rights protections and a fair asylum process. Which clearly isn’t the case now that Trump has been unequivocal that from now on it is America first, human rights be damned. Practically speaking, the Safe Third Country Agreement means that anyone who has been in the US cannot make a refugee claim at a Canadian port of entry, so people have to sneak into Canada in order to avoid the application of the Agreement and make an inland refugee claim. This is underscored by the fact that the 7 countries banned by the US are all (except Iran) on Canada’s list of non-deportation countries, meaning Canada recognizes there are humanitarian crises of such significance happening right now that no one should be sent back to any of those places.

Second, Canada should implement temporary measures to ensure that anyone stranded by the effect of the EO will be safe, in order of the most vulnerable. So, for example, travel-ready refugees who are overseas awaiting resettlement in the US should be diverted to Canada immediately. The reports of refugees being diverted back yesterday was gut-wrenching. Our refugee resettlement process has ground to a near halt in recent months, we need to get our mojo back.

Third, Canada should create a temporary-to-permanent immigration program aimed at skilled and semi-skilled workers for companies that have a global workforce and want more stable headquarters. We should make some of the various pilot programs (currently or formerly in place for the IT, financial services, health care and digital media sectors) country-wide. The Atlantic provinces just announced a new pilot program but it is not apparent whether this will apply to only to companies already here or reputable international companies looking to establish here. It should.

Fourth, let’s call this what it is. Islamophobia. By naming it, we can try to avoid falling into its trap. I saw Dr. Barakat give this TED talk in San Francisco ten days before the US election, and it is even more jarring now that there seems to be a tacit license to be openly bigoted, if you’re so inclined.   The idea that preventing Muslims from entering the United States is somehow fighting the persecution of Christians overseas is false. There is no reason to barter away human rights over a fake threat.

And it’s only been a week.

Dispatches from the Love Department – the new “simplified” family class

Here at North Star Immigration Law, we have a Department of Love. This is the group of lawyers (and one fabulous paralegal) who work on all the family class files. You know: the long distance relationships that turn into love and marriage and baby (and sometimes – no kidding – puppy) carriages.

In December, IRCC announced it was going to simplify the spousal sponsorship process, so I asked the Love Department for some thoughts about the new process.

The new process requires two additional steps that will be initiated by IRCC:

  1. Schedule A Background Application Form (you cannot submit the form until requested – you cannot even access it now) and police certificates will be requested;
  2. The immigration medical will be requested (you cannot request an upfront medical now)

In the former process, the above documentation could have been provided upfront and it made it more efficient. For example, it was helpful to complete an upfront medical if you qualify for an expedited work permit, so you can work in healthcare or childcare, or in any type of job at a hospital or school.  We are not sure how that can be done now, unless the medical instruction arrives at least a month before the open work permit.

The document checklist is lengthier and will still be confusing for most applicants. For example, the sponsorship and relationship evaluation is much lengthier and more detailed than the two forms it replaced in the inland process.

The documents required to prove cohabitation (required for spouses and common law partners) are very specific and may not apply in all cohabitation circumstances. Now you must provide specific documents from several different lists: e.g. two of the following three types of documents:

  • shared lease/mortgage
  • shared utilities
  • proof of shared address with government-issued ID, insurance policies and other important government documentation

On a positive note, the new checklist intends to provide more guidance on exactly what category you wish to apply in (Spouse in Canada, or Family Class outside Canada), and which documents to provide (e.g. for dependent children who require proof of citizenship, or for previous relationships)

However, it is not intuitive that making additional requests for information will actually result in faster processing. It should be an option to submit everything at the outset if you have it.

From looking at the checklist it seems like in an effort to clarify what exactly IRCC is looking for in different situations, they are making the requirements more rigid and forcing relationships to fit into defined boxes This is probably just illustrative of the inherent challenges in trying to find objective criteria to assess something as subjective as a relationship.

So this an interesting change in terms of effort if not execution. As they say, love isn’t always perfect.

To end on a musical note which seems apropos of the new immigration rules and the new world order in general:

This thing could go two ways

Won’t be another exit for days

So pack a small suitcase

Anything else can be easily replaced *

*The New Pornographers, High Ticket Attraction