THERE’S A NEW REGULATOR OF IMMIGRATION AND CITIZENSHIP CONSULTANTS

THERE’S A NEW REGULATOR OF IMMIGRATION AND CITIZENSHIP CONSULTANTS

November 24, 2021—The College of Immigration and Citizenship Consultants (CICC) is now the official regulator of immigration and citizenship consultants across Canada. This means that whoever is paying or planning to pay for services by an immigration or citizenship consultant, must make sure that they are licensed under the College.

The College regulates immigration and citizenship consultants under the College of Immigration and Citizenship Consultants Act. It has new powers and tools to investigate professional misconduct and to discipline consultants. Unlike the former ICCRC (Immigration Consultants of Canada Regulatory Council) that was merely a non-profit corporation with powers limited to its members, the new College can also protect the public from unlicensed consultants by

  • entering a consultant’s premises to gather information for an investigation
  • compelling witnesses to appear and testify before its Discipline Committee
  • requesting court injunctions to address unlicensed actors providing immigration or citizenship advice without authorization

New, higher standards for consultants have also been introduced. Going forward, completing the new competency-based graduate diploma program will be the only way for aspiring consultants, who must already hold a bachelor’s degree, to enter the profession1. College licensees must also complete annual continuing professional development requirements and an annual practice assessment.

The new College is a key part of the government’s efforts to fight fraud in Canada’s immigration system. It builds on significant action over the past few years, including an investment of $50 million to fight fraud and new educational tools to help applicants identify fraudulent activity. It also fulfills a mandate commitment to strengthen oversight, uphold the integrity of Canada’s immigration system and protect all those who wish to come here.

What do immigration and citizenship applicants need to know?

The Immigration and Refugee Protection Act and the Citizenship Act require that individuals who provide paid immigration or citizenship advice or representation be authorized to do so. These Acts make it an offence for anyone to represent or advise for a fee at any stage of an application or proceeding if they are not a member in good standing of one of the following:

  • a law society of a province or territory (for lawyers or, in Ontario, paralegals)
  • the Chambre des notaires du Québec
  • the College of Immigration and Citizenship Consultants

If you are using or planning to use an immigration or citizenship consultant, you should confirm they are licensed to practise by the College. You can do this by visiting the College’s website and confirming that your consultant is listed as a licensee in good standing of the College. You should also confirm that the contact information they have given you matches what is on the College’s website.

If you have a question or complaint about a licensed consultant, you should contact the College of Immigration and Citizenship Consultants.

1It deserves to be noted that unlike the bar associations that operate at the provincial level, CICC is a federal arm’s-length organization from the Government of Canada. While lawyers study the whole spectrum of the Canadian legislation and judicial practices, CICC members’ education is focused exclusively on immigration matters, thereby providing a deeper understanding of Canada’s immigration polices and procedures.

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ON NOVEMBER 23, 2021, THE COLLEGE OF IMMIGRATION AND CITIZENSHIP CONSULTANTS OFFICIALLY OPENED

From IRCC: On November 23, 2021, the College of Immigration and Citizenship Consultants officially opened.

What changed?

The College of Immigration and Citizenship Consultants is now the official regulator of immigration and citizenship consultants across Canada. This means that if you’re paying or planning to pay for services by an immigration or citizenship consultant, they must be licensed under the College.

The College is an arm’s-length organization from the Government of Canada, and it’s governed by statute to serve the public interest—that is, the interests of clients of licensed immigration and citizenship consultants, as well as the general public. The College has several new authorities that the previous regulator did not have, which will help safeguard the professional compliance of its members and discipline unlicensed people who are not authorized to provide immigration consulting services. The new College will protect immigration and citizenship clients and strengthen the integrity of the consulting industry.

What do immigration and citizenship applicants need to know?

The Immigration and Refugee Protection Act and the Citizenship Act require that individuals who provide paid immigration or citizenship advice or representation be authorized to do so. These Acts make it an offence for anyone to represent or advise for a fee at any stage of an application or proceeding if they are not a member in good standing of one of the following:

  • a law society of a province or territory (for lawyers or, in Ontario, paralegals)
  • the Chambre des notaires du Québec
  • the College of Immigration and Citizenship Consultants1

If you are using or planning to use an immigration or citizenship consultant, you should confirm they are licensed to practise by the College. You can do this by visiting the College’s website and confirming that your consultant is listed as a licensee in good standing of the College. You should also confirm that the contact information they have given you matches what is on the College’s website.

If you have a question or complaint about a licensed consultant, you should contact the College of Immigration and Citizenship Consultants.

Search for related information by keyword: Information policy | Immigration, Refugees and Citizenship Canada | Canada | Immigration and citizenship | general public | backgrounders | Hon. Sean Fraser

1Unlike the provincial bars and the Chambre des notaires du Québec, the new College operates at the federal level, which is what the Supreme Court of Canada decided in its famous Law Society of British Columbia v. Mangat case ([2001] 3 SCR 113)-our note.

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GOVERNMENT OF CANADA ANNOUNCES PLAN TO SUPPORT ECONOMIC RECOVERY THROUGH IMMIGRATION

From: Immigration, Refugees and Citizenship Canada

The Honourable Marco Mendicino, Minister of Immigration, Refugees and Citizenship, tabled, on October 30, 2020, the 2021‒2023 Immigration Levels Plan today, which sets out a path for responsible increases to immigration targets to help the Canadian economy recover from COVID-19, drive future growth and create jobs for middle class Canadians.

The pandemic has highlighted the contribution of immigrants to the well-being of our communities and across all sectors of the economy. Our health-care system relies on immigrants to keep Canadians safe and healthy. Other industries, such as information technology companies and our farmers and producers, also rely on the talent of newcomers to maintain supply chains, expand their businesses and, in turn, create more jobs for Canadians.

Although Immigration, Refugees and Citizenship Canada (IRCC) continued to accept and process applications throughout the pandemic, the global travel restrictions and capacity constraints led to a shortfall in admissions over the last several months. To compensate for the shortfall and ensure Canada has the workers it needs to fill crucial labour market gaps and remain competitive on the world stage, the 2021 to 2023 levels plan aims to continue welcoming immigrants at a rate of about 1% of the population of Canada, including 401,000 permanent residents in 2021, 411,000 in 2022 and 421,000 in 2023. The previous plan set targets of 351,000 in 2021 and 361,000 in 2022.

The health, safety and security of Canadians remain our top priorities. Canada has strengthened health screening at the border as well as monitoring and enforcement, and will continue to closely follow the advice of public health officials as we welcome newcomers.

This multi-year levels plan recognizes the importance of family reunification and Canada’s global commitment to protecting those most at risk through refugee resettlement. 

Highlights of the plan include

  • an increase in admissions over the 3 years of the plan to make up the shortfall in 2020
  • a focus on economic growth, with about 60% of admissions to come from the Economic Class
  • a continued focus on innovative and community-driven approaches to address diverse labour and demographic needs across the country
  • a renewed commitment to capacity-building and digital transformation in Canada’s immigration system, to support operations and mitigate the impacts of COVID-19 on the processing of applications
  • additional points for French-speaking candidates under Express Entry, to promote the growth of Francophone communities outside of Quebec
  • a commitment to admit up to 500 refugees over the next 2 years through the Economic Mobility Pathways Project, an innovative approach that helps qualified refugees apply for permanent residence through existing economic immigration pathways
  • a pathway to permanent residency for eligible asylum claimants who were working on the front lines of the pandemic between March 13 and August 14, 2020, providing direct care to patients in health-care institutions

The 2021–2023 Immigration Levels Plan will help cement Canada’s place among the world’s top destinations for talent, creating a strong foundation for economic growth while reuniting family members with their loved ones and fulfilling Canada’s humanitarian commitments.

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ONTARIO PROVINCE ADOPTS A SELECTION SYSTEM BASED ON DECLARATIONS OF INTEREST

ONTARIO PROVINCE ADOPTS A SELECTION SYSTEM BASED ON DECLARATIONS OF INTEREST

September 8, 2020-The Province of Ontario released a press release detailing the planned changes to its own immigrant selection program: OINP (Ontario Immigrant Nominee Program). The aim is to increase OINP’s ability to respond to labor market requirements, to manage the growing interest in OINP in order to create greater predictability for applicants and employers, and to make the selection of the most suitable candidates more rigorous.

The proposed changes will introduce an Expression of Interest (EOI) system for the following streams:

Employer Job Offer: Foreign Worker;

Employer Job Offer: International Student;

Employer Job Offer: In-Demand Skills;

Masters Graduate; and

Ph.D. Graduate.


The press release includes preliminary information on how its new EOI procedure (similar to the federal Express Entry system) will make the selection. As a first step, applicants will be invited to create a candidate profile, which will place them in a pool of candidates. Applicants will then be asked to provide personal information about other factors that may influence the labor market and what the press release calls “human capital”, which will form the basis of a possible invitation to submit the actual file (ITA from Invitation to Apply).

According to the proposal submitted by Ontario, applicants will be ranked based on the information provided in the EOI, assigned a score for each factor taken into account, and the total will determine the final selection, depending on the bar set by OINP for each draw in part, as in the federal system. Those who receive an ITA will then be able to apply to be nominated in the respective OINP stream.
As is well known, the federal Express Entry system launches regular rounds of invitations, usually every two weeks; in 2020 it has so far invited 69,950 candidates to apply for permanent residence in Canada.

As in Ontario, eligible candidates from the three immigration programs managed by Express Entry (Federal Skilled Workers, Federal Skilled Trades and Canadian Experience Class) are calculated on a Comprehensive Ranking System that allocate points for factors such as age, education, professional experience and level of proficiency in English and / or French. For the time being, Ontario has not provided details on the factors taken into account and how the score will be counted in each of the streams listed above, other than to say that the allocation of points will be based on various factors, such as level of education and language.

The communiqué also states that there will be both general draws (in which candidates from all streams participate together) and some targeted draws for each stream; all of them will be displayed on the OINP website.

We note that in the past, some of the five OINP streams have been affected by problems in the manner of receiving applications. Most recently (in July and August 2020), the first two streams based on the employer’s job offer for international students and skilled foreign workers, were open for enrollment for only a few minutes, until the number of places allocated for each (1250 for students and 1300 for skilled workers) was completed, after which they were closed again; usually these streams only open twice a year.

This “first come, first served” approach has drawn a lot of criticism because it puts those who do not have easy access to high speed internet at a disadvantage, not to mention the fact that those who manage to win are not necessarily the most deserving.

All proposed amendments will enter into force only after a 45-day public consultation period ending on 23 October 2020. Interested parties may send their suggestions by email to ontarionominee@ontario.ca indicating “Regulatory Amendments 422/17 and 421 / 17 ” in subject line)

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CHANGE INTENDED TO BENEFIT EMPLOYERS WHO ARE STILL FACING DIFFICULTIES FINDING WORKERS

From: Immigration, Refugees and Citizenship Canada

CHANGE INTENDED TO BENEFIT EMPLOYERS WHO ARE STILL FACING DIFFICULTIES FINDING WORKERS

August 24, 2020 – Ottawa – Visitors who are currently in Canada and have a valid job offer will be able to apply for an employer-specific work permit and, if approved, will be allowed to work without having to leave the country (such as in normal conditions), thanks to a new policy announced today by Marco El Mendicino, Federal Minister for Immigration, Refugees and Citizenship (IRCC).

This temporary policy change will take effect immediately and will benefit Canadian employers who continue to face difficulties in finding the workers they need, as well as temporary residents who would like to contribute their labour and skills to Canada’s recovery from the COVID-19 pandemic.

During this pandemic, temporary residents who remained in Canada were encouraged to maintain their legal status, extending it regularly by obtaining successive visitor records. With limited air travel around the world, some visitors to Canada were unable to leave, while some foreign workers were forced to change their status from “foreign worker” to visitor because their work permit was expiring and they didn’t have a job offer to be able to apply for a new work permit. At the same time, many employers in Canada have experienced an acute labor shortage, including those who provide important goods and services.

In order to benefit from the new public policy, an applicant must:

• Effectively have visitor status on August 24, 2020 (including implied status) and remain in Canada.

• Have a job offer from a Canadian employer that has either validated it by obtaining a Labor Market Impact Assessment (LMIA) from the ESDC (Employment and Social Development Canada), or offers a position that is exempt from obtaining an LMIA (under the International Mobility Program).

• Submit an application for an employer-specific work permit that is supported by a Labour Market Impact Assessment (LMIA) or an LMIA-exempt offer of employment, no later than March 31, 2021.

  • Meet all other standard admissibility criteria.

This temporary public policy also allows applicants who meet the above criteria and who, in addition, have had a work permit valid for the last 12 months, to start working for their new employer even before the work permit application is approved. To do this, they must follow the instructions described HERE.

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IMMIGRATION CANADA ACCELERATES ITS CONVERSION TO ON-LINE SERVICES AND ARTIFICIAL INTELLIGENCE

IMMIGRATION CANADA ACCELERATES ITS CONVERSION TO ON-LINE SERVICES AND ARTIFICIAL INTELLIGENCE

OTTAWA — A complete overhaul of how Canada processes immigration applications is in the works as the federal government braces for a post-COVID-19 surge in demand for migration to Canada.

The federal Immigration Department says the “new normal” that will emerge after the pandemic requires a revamp of the technology used to handle millions of applications a year.

It says new strategies for managing those applications are also needed to limit the amount of in-person contact within the bureaucracy and between officials and potential newcomers.

The department included its plan in an “urgent request” issued late last month for a company to help with that project.

Immigration to Canada came to a near-halt in March when borders around the world slammed shut to slow the spread of the novel coronavirus.  A report from RBC Economics has suggested that could curb Canada’s economic growth, noting the $6 billion in tuition alone that international students contribute to the economy each year.

For our clients, the recent announcement should be seen as a warning that in the very near future no applicant will be able to handle immigration matters without adequate technology and computer operation skills.  We will do our best to accommodate your needs in this respect, but you must, in your turn, make sure that you possess or have easy access to desktops/laptops, scanners and printers.  Also, you should upgrade your Internet access speed so as to be able  to quickly send/receive messages, participate in webinars and apply on-line for services that might be accompanied by caps and other time restrictions.

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TEMPORARY PUBLIC POLICY ON THE EXEMPTION FROM CERTAIN REQUIREMENTS WHEN A TEMPORARY WORKER IS CHANGING EMPLOYMENT.

FROM IRCC: TEMPORARY PUBLIC POLICY ON THE EXEMPTION FROM CERTAIN REQUIREMENTS WHEN A TEMPORARY WORKER IS CHANGING EMPLOYMENT.

This public policy comes into effect on May 12, 2020, and remains in effect until it is revoked by the Minister of Immigration, Refugees and Citizenship. These measures are set out to enable temporary workers in Canada with authorization to work in Canada (that is, a valid work permit or authorization to work without a permit) who are required to obtain a new employer-specific work permit before commencing a new job to begin working in a new job while their work permit application is pending. The measures include an exemption from providing biometrics in support of the work permit application if the Service Canada office serving the area where the applicant lives is temporarily closed and is not collecting biometrics due to the pandemic.

Individuals expected to benefit from these measures include foreign nationals who

  1. have implied status, meaning they are authorized to work while their work permit application is pending, but are bound to the conditions imposed on their expired work permit, such that they cannot move to a new occupation or employer while on implied status
  2. continue to hold a valid work permit that limits them to working for a named employer, but need to transition to a different occupation or employer for reasons that may include having been laid off due to COVID-19 impacts
  3. are work permit exempt, but require a work permit to work in a new occupation or for a new employer

Eligibility requirements

The foreign national

  1. is in Canada with valid temporary resident status (including implied status);
  2. held a valid work permit or was authorized to work without a work permit when their application for a new work permit or work permit renewal in Canada was submitted;
  3. has submitted a new work permit application or a work permit renewal application in Canada for an employer-specific work permit, for which a decision has not yet been made;
  4. intends to work for a new employer and/or occupation as specified by the job offer included in their work permit application;
  5. has applied for the public policy exemption using the electronic means identified by the department for that purpose; and
  6. has requested that the exemption be applicable until a decision is made on their work permit application.
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CANADIAN IMMIGRATION IN THE ERA OF ARTIFICIAL INTELLIGENCE: WILL COMPUTERS TAKE PLACE OF MAN IN ADOPTING DECISIONS?

CANADIAN IMMIGRATION IN THE ERA OF ARTIFICIAL INTELLIGENCE: WILL COMPUTERS TAKE PLACE OF MAN IN ADOPTING DECISIONS?


Last week, the American public television channel PBS presented a wide-ranging show dedicated to sensational advances in information systems in recent years, which now have not only the ability to store huge amounts of data, but also to independently analyze them and make predictions on this basis. Just a few days before, in Bucharest, Mr. Brad Smith, President of Microsoft defined Artificial Intelligence as “a computerized system that can learn from experiences (of some games, for example) or data, by identifying patterns in the data with which it is fed and thus making decisions.”  He stressed that the last decade has marked an important qualitative leap, namely the endowment of computers with the ability to understand the world and, as such, to transform it.

This progress was made possible by the massive increase in computing power, by the emergence of the “cloud” which made it possible to manage this computing power (thus eliminating the need for each of us to build our own server and data center at considerable expenses), as well as through the explosion of digital data, which means that we will inaugurate 2020 with 25 times more data than in 2010.

There is talk today about the revolution that will be sparked by the next move to the G5 networks that will create a world in which our fridge communicates with the oven and dishwasher, but also with the library, to transmit information to Amazon’s “Alexa” or to Siri, from where they are directed to the grocery store, or the bookstore, as well as to the bank for making payments, with the consequence that our entire household becomes accessible to the suppliers, thus orienting their marketing policy, but exposing us at the same time to a massive interference in our personal life, even if it starts from the best intentions, such as sending messages designed to rationalize our diet.

This is not science fiction, but the image of radical transformations that will occur in the immediate future. And artificial intelligence (AI) has already penetrated, often unnoticed, not only in the private sector, but also in the structure and activity of officials in different fields. Some countries are very advanced in this regard, such as Estonia, which has implemented a computer program that replaces the judge in the files that are suitable for standardization (in the opinion of the authorities of that country), in particular the litigation regarding claims under seven thousand euros. . Also Estonia is the country that has fully computerized the issuing of identity documents, the voting system and the tax field, thus reducing by 80% the personnel required in the past for these operations

Of course, Canada couldn’t let being left behind.  In his presentation at the recent National Conference of CAPIC (Canadian Association of Professional Immigration Consultants) Mr.  Mario Bellissimo, a Toronto based Barrister and Solicitor,  has outlined with deep analytical spirit not only the framework of the  changes made by IRCC (Immigration, Refugee and Citizenship Canada) since 2014, but also their legal and general human consequences, voicing legitimate concerns and providing possible solutions to avoid depersonalization of the Immigration system. With the kind permission of the author, I will continue to reproduce, within the limits of the available space, the main ideas of his presentation, with special reference to the effects of AI on some fundamental aspects of the selection process.   Following his line of thinking,  we will briefly examine how the introduction of AI / ML in the field of immigration can lead to: 1) the loss of discretion in the assessment of individual cases; 2) undermining the principle of “procedural fairness”; 3) the potential perpetuation of past prejudices and discrimination and 4) lack of transparency.

(1) The risk of eliminating human factor intervention in the assessment of individual situations was highlighted by Dr. Vic Satzewich from McMaster University, in the only academic study devoted to the IRCC decision-making process, which highlighted the major importance of human intervention in “implementing the government policy ” that involves not only observing general rules, but also taking into account the individual circumstances of each case. Developing this idea, Mr.  Bellissimo has been wondering to what extent it is acceptable to make room for artificial intelligence: to entrust it with a supporting role, or even the sorting of information, or to allow AI to make decisions all by itself? To give an answer, he used an example in the field of sponsoring spouses, arguing that a negative decision taken by the AI ​​based on the data previously collected in the situation of candidates with multiple divorces , may be incorrect in light of the individual circumstances of a case in which all those divorces are the result of abusive behavior of the former spouses. Thus, the Supreme Court of Canada has ruled, for example, that a person suffering from a condition that would impose high costs of medical care cannot be declared medically inadmissible, if all the individual circumstances that define his/her situation are not taken into account. The question is: can AI comply with this directive, no matter how rich the amount of previous data it was supplied with?

I would add another situation that seems to me to be significant: IRPA, the Canadian Immigration Act (Immigration and Refugee Protection Act) provides the possibility for officials in charge of selecting economic immigrants to approve an applicant even if he/she does not accumulate the required minimum score, if officer considers that they still have real chances of to become successfully established in Canada. In the past, this provision was quite frequently applied by the immigration officers conducting the selection interviews, as a result of studying the file, but also and mainly further to their direct interaction  with the applicant. Since the Express Entry system initiated the introduction of AI technology, I have not heard of such cases, although I am convinced that many candidates would have deserved it.

(2) The risk that the predictive analysis will affect the procedural fairness is obvious if we take into account the fact that the principle of “procedural fairness”, which is the basis of all common-law systems (including the Canadian one), requires that every individual who is the subject of an administrative procedure ( including the selection of immigrants) to have the opportunity to present their case completely and correctly, and the decisions that affect it be the result of a fair, impartial and open evaluation process.

The question that arises is whether the introduction of artificial intelligence can, for example, supplement the obligation of the immigration officials to inform the candidates not only about the doubts that trouble them, but also about the mechanism that generated these doubts. It is hard to believe that predictive analysis based on previous data and experiences, which are biased by the mere way they were set up, can satisfy these requirements that continue to be absolutely mandatory in light of the constant practice of the Supreme Court of Canada. Summoning the famous decision in the Baker case, Mr. Bellissimo points out that the entire decision-making process will be upset by this biased configuration, even if the final decision is made by an official and not by a machine.

It is even more difficult to believe that the AI ​​will be able to satisfy the requirement to explain to the person in question the motivation behind the decision, which in the end affects the candidate’s possibility of attacking such a decision and ultimately empties of its full content the requirement for the applicants to participate themselves in the decision-making process, as established by the Federal Court in the case of El Maghraoui.  In Mr. Bellissimo’s opinion, this shortcoming will in the future be the main argument of those who will challenge the decisions taken by, or with the help of, artificial intelligence.

3) The risk of perpetuating the prejudices of the past is another possible consequence of the introduction of AI in the selection of immigrants, as long as by the very confession of the immigration authorities, the set of technological tools introduced by the IRCC is based on the machine learning technique aimed at analyzing the results of “thousands of past applications”. In other words, insofar as these previous results incorporate prejudices or discrimination contrary to current moral and legal standards, there is a risk of their reproduction in future decisions, unless corrections are operated by the human factor , which is not easy as long as the decision-making process remains opaque.

Canadian courts have faced such situations in areas other than immigration (such as criminal justice), but the potential risk of perpetuating past discrimination cannot be overlooked even in the field  of immigration, given the manner in which the instruments used by IRCC are built.  For example, if the decision-making process performed by AI is based on 1000 past decisions on temporary visa applications, the question arises whether the database thus constituted does not also encompasses those decisions that were later revised precisely because of the discrimination they contained.  Also, how can the AI ​​correct the database by eliminating decisions that, even if not challenged, contain discriminatory solutions?

Mister Bellissimo rightly suggests that it is to the advantage of immigration authorities to give up the secrecy with which the recourse to AI ​​/ MLs has been surrounded so far, and to involve the practitioners who can better identify the risk factors in this process.

(4) As is clear from the above, the lack of transparency is another major concern regarding the use of AI / ML technology. Little is known about the selection of information that IRCC introduces as part of the machine learning process, or about the manner and limits in which this information is shared with other entities. However, such issues should become of the public domain if it is really intended to ensure fair treatment of applicants. In Mr. Bellissimo’s opinion, in order to ensure the protection of the interests of all participants in the immigration process, the details of the implementation of the AI ​​should be submitted to Parliament’s approval.

The necessary conclusion is that the introduction of artificial intelligence is here to stay, but that this process should lead neither to the elimination of the human factor from the decision-making process, nor to the violation of the principles of the rule of law referred to above. This requires the collaboration of all stakeholders, starting with the immigration authorities, but without excluding the community of practitioners, socio-cultural organizations and each of us, Canadian citizens and residents who are all immigrants or immigrants’ descendants.

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SECURING PERMANENT RESIDENCE THROUGH HUMANITARIAN AND COMPASSIONATE GROUNDS

SECURING PERMANENT RESIDENCE THROUGH HUMANITARIAN AND COMPASSIONATE  GROUNDS

Immigration professionals are often asked by their clientele to invoke Humanitarian and Compassionate grounds (H&C) as the basis for successful applications for permanent residence. This is most often the case when it comes to sponsoring parents and is based on information from acquaintances that have obtained or heard from others that they have obtained a positive result from IRCC (Immigration, Refugee and Citizenship Canada).

The frequency of requests for sponsorship of parents is explained by the lately introduced caps, which  from year to year leave frustrated a proportion of about 80% of Canadians wishing to sponsor their parents, but unable to count among the 20% who have either won the lottery or were quicker to enter the information when (as this year) IRCC posted a form then withdrew it after four minutes. However, H&C grounds may be invoked not only in this matter, but also in any other permanent residence file, such as in the field of economic immigration or asylum seekers.

The optimism of those who rely on what they have learned from others is completely inadequate, because the humanitarian grounds are carefully assessed according to the specific details of each case. Therefore, even if two cases are almost similar, the officials in charge of examining the respective applications proceed to a thorough analysis of all the probative material in the file and can reach completely different decisions despite the apparent similarity of the respective situations.

The good news, however, is that in recent years the severity of the appreciation of H&C grounds has relaxed considerably as a result of the intervention of the judiciary in particular. The Federal and Supreme courts have taken a stand against the narrow interpretation that IRCC officials have given over the course years to Article 25 of the Immigration and Refugee Protection Act (IRPA), which authorizes the Minister of Immigration to exempt an applicant for permanent residence from the application of criteria that would lead to the rejection of his file, when he (the Minister)  “is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.”

This section of IRPA represents the only legal provision on which the entire scaffolding of indications and interpretations issued by IRCC after the coming into force of the IRPA was based and which have led to numerous refusals until the aforementioned intervention of the courts of justice. The explanation lies in the restrictive instructions issued by the IRCC through IP Guide 5 (currently withdrawn from circulation), which asked immigration officials not to accept a request based on H&C reasons unless they reach the firm conclusion that, otherwise, the candidate would suffer consequences defined by the expression “unusual and undeserved or disproportionate hardship”.


It should be noted that such an assessment benchmark is completely absent from the text of the law. This is what the Supreme Court of Canada highlighted in 2015 in resolving the dispute in Kanthasamy v. Canada MCI.  In essence, the Supreme Court decision states that IP Guide 5 does not contain mandatory rules, but descriptive elements for the use of officials, which are not exhaustive and cannot limit their freedom of appreciation.  In any case, according to the aforementioned decision, it is not necessary for the officer in charge with such applications to approve them only if all the three qualifications of IP 5 (unusual, undeserved and disproportionate) are met and be limited only to the assessment of the “risk” that would confront the applicant. I n contrast, immigration officials must assess in a “flexible” manner whether or not the circumstances of the file justify the application of Section 25 of IRPA, using not the standard “unusual and undeserved or disproportionate hardship”, but a criterion introduced since 1970 by the decision of the Federal Court in Chirwa v. Canada (MCI), namely the existence of circumstances “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”.


Following the intervention of the Supreme Court, the IRCC removed from its guides the phrase “unusual and undeserved or disproportionate hardship”, but replaced it with “extreme hardship”. On its official site, the IRCC continues to put in place a set of criteria that should guide its officials facing such demands, respectively: to what extent that person has integrated into Canadian society, his family ties, the best interests of any affected child and the consequences they would suffer in case of refusal.  In the light of the decision of the Supreme Court though, these criteria are neither exhaustive nor mandatory.

Essential in a request based on H&C grounds are the arguments relied upon by the applicant and the evidence administered to convince the IRCC that their application involves circumstances which “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”.

The judicial practice subsequent to the decision in Kanthasamy v. Canada further developed, mostly in favor of applicants for H&C grouns, the ideas and criteria established by the Supreme Court. Let us recall that, unlike most of the continental European law systems that many of us are familiar with, in Canada judges’ decisions have the power of “judicial precedents”, becoming mandatory not only for the parties who have tried, but for any other persons or governmental authorities facing similar situations. Therefore, immigration officials will be kept in the future to respect such judicial commands as: to consider not only the existence of hardship, but also humanitarian and compassionate considerations in the broad sense of the term (Marshall v. Canada, 2017); to avoid examining each aspect of the file in isolation, fragmented, instead of taking into account the unifying elements of the case (Mursalim v. Canada, 2018). In particular, the courts have set out detailed rules on how officials should assess the interests of children affected by the decision they will make, such as the emotional consequences, age and needs of the child, and the extent to which they will have the opportunity to satisfies them (Daugdaug v. Canada (MCI), 2018). The same Supreme Court decision in Kanthasamy v. Canada pointed out that due to the sensitivity of the child, circumstances that would not justify the application of H&C grounds for an adult, can nevertheless lead to a positive solution in the case of a child.

The IRCC is now urging officials to look at other issues, such as the level of dependence between the child and the person applying for H&C grounds, the impact on the education of the child, consequences related to the sex of the child, etc., and the officials with decision-making power understand now that these are exemplary enumerations, not mandatory instructions that limit their ability to appreciate the specificity of each situation. Therefore, the years that have elapsed since Kanthasamy v. Canada have marked a decline in the number of refusals, which doesn’t mean that anyone can invoke H&C grounds  and expect to see their application approved. The most important thing for those who are convinced that they have such H&C reasons is not to rely simply on the understanding and good will of the officials on whom the file will fall, but to prepare it with all the attention, presenting in extenso their arguments and producing as much evidence as possible: medical certificates, even psychiatric reports if needed, notarized statements from those affected and witnesses who know their situation, relevant photos, evidence of the material situation, verifiable information about the country where the person should return to  in case of refusal, even drawings made by the affected children. In the light of the above, a considerable impact on the evaluation of the case may have references to different judicial precedents applicable to their case[1].

Finally, it should be noted that not everyone can apply for humanitarian reasons. For example, those who enter Canada illegally are included in the so-called category of “designated foreign nationals” who are prohibited from invoking humanitarian and compassionate considerations for five years from entering Canada or from the date they were denied the refugee claim. It is interesting to note, however, that those who are the subject of a removal order for reasons other than illegal border crossing, are not stopped to invoke Section 25 of IRPA.

In conclusion, with little exceptions, the invocation of H&C grounds is within the reach of any applicant for permanent residence, but the approval of this approach depends decisively on the ability of the person concerned to present his/her situation exploiting all the elements that define its uniqueness. It is their task to highlight these elements, and not the Government official’s to discover them. However, the assessment of H&C grounds requires in my opinion the intervention of the human factor; that is, the discernment of a being in the flesh and bones is essential for the correct evaluation of the situations invoked by the applicants. In a future article we will examine the extent to which this component is currently threatened by the increasingly widespread introduction of artificial intelligence into decision-making processes taking place within the IRCC.


[1] It is significant in this sense that the IRCC itself suggests to its officials to carefully study (but very few do) all the precedents presented in this article, plus others, such as  Baker v. MCI, Legault v. MCI, MCI v. Hawthorne and Owusu v. MCI.

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Coming soon: The College of Immigration and Citizenship Consultants

Members of the Immigration Consultants of Canada Regulatory Council (ICCRC) Approve
Transition to a College

September 19, 2019 – Members of the Immigration Consultants of Canada Regulatory Council (ICCRC) have approved a motion authorizing ICCRC to apply to become a new self-regulatory organization, the College of Immigration and Citizenship Consultants.

In Spring 2019, federal legislation titled the College of Immigration and Citizenship Consultants Act (the “College Act”), received Royal assent, which provides a mechanism for ICCRC to be continued as the statutory professional self-regulatory body for Canadian immigration and citizenship consultants. Once proclaimed into force, this legislation allows ICCRC with member approval, to apply to the Minister of Immigration, Refugees and Citizenship to become the new College.

The new College will have enhanced powers to provide professional oversight, enforcement, investigations and governance for citizenship and immigration consultants across Canada and abroad. These changes will allow for better protection of Canadians, newcomers and good-standing consultants.

ICCRC is the national self-regulatory body that promotes and protects the public interest by overseeing regulated immigration and citizenship consultants and international student advisors.

ICCRC’s federal mandate stems from the Immigration and Refugee Protection Act (IRPA) and the Citizenship Act which require anyone providing Canadian immigration or citizenship advice or representation for a fee or other consideration to be a member in good standing of ICCRC, a Canadian law society or the Chambre des notaires du Québec.

Individuals providing Canadian immigration/citizenship services abroad are subject to Canadian law even if they reside outside of Canada.  In this respect, the new College, being governed by a federal status,  will possess larger powers than the provincial Canadian bar associations that can only take legal action against individuals living in Canada.

 

 

 

 

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