PROTECTING PEOPLE FROM ABUSE AND VIOLENCE & REUNITING FAMILIES

PROTECTING PEOPLE FROM ABUSE AND VIOLENCE & REUNITING FAMILIES

On May 31, 2019, IRCC (Immigration, Refugee and Citizenship Canada) announced a set of measures to improve the protection of vulnerable foreign workers and newcomers facing family abuses, as well as to help new immigrants  sponsor family members whom they did not initially declare.

1) Canadian mass media frequently report situations where work permit holders are victims of abuses committed by their employers, but hesitate to complain to the authorities for fear that they will lose their jobs. So far, this fear has been fully justified because most work permits are “employer-specific,” meaning they do not entitle the holder to engage elsewhere, creating a situation similar to serfdom. Abuses can be of a variety of types, starting with physical or verbal violence (especially for domestic staff) and ending with unjustified salary reduction or charging the employee with expenses that the law compels the employer to bear. Those who suffer such abuses have the alternative of finding another employer who has to go through a lengthy and costly procedure to get work offer validation through an Labor Market Impact Assessment (LMIA) which Employment Canada issues only after being satisfied that he/she has made sufficient efforts to hire a Canadian and failed; in short, in very few cases, the foreign worker can still work in Canada if he comes into conflict with the employer indicated on his work permit.

Starting June 4, 2019, holders of such work permits that are the target of abuse by the employer will be able to apply for an open work permit free of charge, which gives them the right to be hired by any employer. When such situations arise, employers found guilty may be sentenced to considerable fines and are included in a public list that prohibits them from  hiring other “foreign workers” in the future. Even under the current legislation, such sanctions has been applied to 160 employees found guilty. It remains to be seen whether the new provisions will not generate situations where the employer himself becomes the victim of pressure from the employees without committing any abuse, and if such a perspective will discourage or not the companies concerned from recruiting foreigners despite the current crisis of manpower in the Canadian economy.

2) Starting July 26, 2019, people in Canada who become victims of abuse by Canadian spouses or partners will be able to apply for and obtain temporary residence permits (TRPs) if they have not been able yet to obtain their permanent resident status. Such situations may arise when  people have entered Canada as visitors or students or foreign workers have formed a couple with Canadian residents who are either on the process of sponsoring them, or are simply indulging in a romantic relationship without any thought of a long-term relationship. It is important to note that the possession of a TRP should not be confused with the status of a simple visitor; as a general rule, such permits are released in exceptional circumstances to  medically or criminally inadmissible people, when the IRCC finds that there are compelling grounds for which they should be allowed to enter or remain in Canada.  The person who gets a TRP automatically receives not only the right to stay in Canada, but also medical coverage and the right to work. Such permits are usually issued for one year and are often prolonged for another year at the end of which the holder is entitled to claim permanent residence without any other condition (studies, linguistic test, etc.).

Simultaneously with the release of temporary permits, IRRC is launching another initiative to protect people who fall victim to conjugal violence in that it will accelerate the processing of applications for permanent residence based on humanitarian and compassionate (H&C) grounds that have been filed by such persons. It is an important measure because such H&C applications, when no violence is invoked, are known for their lengthy processing time. It should be noted, however, that if for the release of a TRP, with all the collateral advantages described above, is enough to invoke and prove violence, in the case of H&C cases, this violence only leads to the acceleration of the processing, not to the approval of the application as such. In order to obtain this approval, the person concerned must prove that returning to his / her country of citizenship would expose them to considerable hardship, such as a risk to their own life due to poor health assistance national systems.

3) Finally, a very positive step is going to be the launch, starting on September 9, 2019, of a two-year pilot program, through which those who have already become permanent residents or Canadian citizens can sponsor their dependents that they failed to declare when they filed their own permanent residence applications. The reasons for such an omission can be of a wide variety and are particularly common with those who have requested and obtained refugee status. However, there may be other situations, such as the case of a former client of ours who did not declare his out of wed child when he immigrated with his legitimate wife; at that time, there was a need for strong argumentation and a lot of evidence to persuade the authorities to accept the sponsorship of the child, who later proved to be a brilliant valedictorian student.

The rationale for which such a ban still exists (for a few more months) lies in the Government’s fear that the dependant could be medically or criminally inadmissible, which would have led to the denial of permanent residence for the whole family. It seems that the IRCC has decided to reconsider this position and to take the view, at least for the next two years, that the benefits for Canada are greater in the long run than the above-mentioned risk.

What it does not result from the text of the IRCC communiqué is what will happen to those who did declare their dependents but they had not been medically examined. The question is legitimate, because the outcome is the same as for the unreported dependents. Such situations are extremely frequent and occur especially when the potential sponsor requested permanent residence after divorcing and the minor child was entrusted to the other parent (usually the mother) who refuses to let him/her undergo the medical examination. Our experience show that, in such cases, the child who grows to become an adult will never forgive this refusal and this episode will motivate her/him to try and emigrate on their own. We hope that these situations will also be embedded in the next pilot program.

In conclusion, we can count on accelerating measures that have a positive effect on the electorate’s mass as the parliamentary elections get closer. In fact, just two days after the communiqué commented on in this article, the IRCC launched a new initiative called “Rainbow Refugee Assistance Partnership” to facilitate private sponsorship of refugees belonging to the LGBTQ2 community.

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