Immigration 101 Immigration Law Concepts For General Practitioners

Immigration 101 Immigration law concepts for general practitioners Christopher G. Veeman

The significance of immigration law Status, rights, privileges, inadmissibility

Status Citizen Permanent resident (formerly “landed immigrant”) Temporary resident (visitor, worker, student) Convention Refugee & protected person Refugee claimant Foreign national

Legal framework Constitution, law & regulation, policy

Constitution Federal paramountcy - Constitution Act, section 95 Immigration and Refugee Protection Act (IRPA) occupies the field

Law & regulation Citizenship Act Citizenship Regulations Immigration and Refugee Protection Act Immigration and Refugee Protection Regulations The Foreign Worker Recruitment and Immigration Services Act (SK) Regulations

Policy ructionsagreements/public-policies.html

Citizenship By birth, by grant

By birth (jus sanguinis) - Citizenship Act, Section 3 - Born in Canada* - except children of foreign diplomats - Canada v. Vavilov (2019 SCC 65) - Born outside Canada to at least one Canadian parent, as long as the Canadian parent was not born outside of Canada (1st generation abroad rule) - Born outside Canada to parent serving in the military (1st generation abroad rule does not apply)

By grant (jus soli) - Citizenship Act - section 5 Section 5 of Citizenship Act Preconditions: 1. Must be a permanent resident 2. Must apply 3. Must have 1095 days physically present Canada within the 5 years preceding application 4. Pass knowledge test (if between 18 – 54) 5. Pass official languages test (CLB 4) (if between 18 – 54) 6. Must not have indictable conviction(s) in past 4 years

By grant Citizenship Act, section 5.1 - Citizenship for child adopted abroad by Canadian citizens 6 A citizen, whether or not born in Canada, is entitled to all rights, powers and privileges and is subject to all obligations, duties and liabilities to which a person who is a citizen under paragraph 3(1)(a) is entitled or subject and has a like status to that of such person.

Citizenship FAQs I am a citizen but living in another country, where I am eligible to apply for citizenship. Can I have both citizenships? Yes, Canada has allowed dual citizenship since 1977. I just got married to a Canadian citizen, does that make me a Canadian citizen? No. No special provisions for spouses of Canadian citizens. I recently became a Canadian citizen; can the government take it away? No, unless obtained through misrepresentation. What do I do if I don’t want to be a Canadian citizen anymore? Renunciation. Can I be a citizen and permanent resident at the same time? No, permanent residence ceases on becoming a citizen.

Permanent residence Family reunification, economic immigration, refugee protection

Family reunification Sponsorship of: Spouse (spouse, common law partner, conjugal partner) Dependent child Parent* Grandparent* Orphaned brother under 18, orphaned nephew/niece under 18, orphaned grandchild under 18 Intended adopted child Any relative of a “lonely Canadian” Plus their “family members” But NOT undeclared in prior application [R117(9)(d)]** Not inadmissible *subject to lottery; alternative is Supervisa ** except on temporary basis, for spousal and refugee cases

Family reunification Sponsor requirements – IRPR 117 Minimum necessary income (approx. 41k for 2 people) Does not apply to sponsorship of spouse, dependent children Physical presence in Canada Does not apply to citizens Sponsorship undertaking Not in jail, under removal order, bankrupt, in receipt of social assistance, not convicted of any offence of a sexual nature, act of violence, or causing bodily harm to a family member (or threat)

Family reunification - FAQs How long will my application take? For spouses, about 12 months Can my spouse come to Canada as a visitor during the process? Possibly, “temporary intent” What if we separate during the process? Termination of application My sponsored spouse landed at the airport, walked past me into a taxi, and I never saw them again. What can I do? Sue for tort of deceit, but IRCC won’t help you take any action against them.

Family reunification - FAQs I don’t have enough income to sponsor my parents, what can I do? Supervisa I am in a relationship with someone from the Philippines, she/he can’t get divorced, what can I do? Common law (12 months cohabitation) My sponsorship application was refused, what can I do? If outside Canada, appeal to IAD – de novo appeal.

Economic immigration Federal programs Express Entry (points system, online, 6-month processing) Federal Skilled Worker Canadian Experience Class Federal Skilled Trades Class PNP Express Entry PNP (nomination by province, then PR application to IRCC) SINP ISW (job offer & occupation in demand) Sask Experience (Skilled Worker, Health Professionals, Ag, Students, Hospitality, Long-Haul Trucking) Entrepreneur, Farm Owner/Operator

Economic immigration Requirements for all categories Valid passport / identity established Positive selection decision Meet program criteria Not inadmissible Security, human rights violations, criminality, organized crime, health, financial, misrepresentation, non-compliance, inadmissible family member Increasingly: outcompete other applicants on human capital points system

Refugee protection Section 96: Convention Refugee (1951 Refugee Convention) Well-founded fear of persecution Due to race, religion, particular social group, political opinion, gender, sexual orientation, or nationality International protection is the last resort Internal Flight Alternative State Protection Exclusions 1951 Convention: Serious non-political crimes, war crimes, crime against humanity Section 97: person in need of protection Risk to life, or cruel and unusual punishment (higher standard)

Refugee protection Process: Overseas sponsorship Need Canadian sponsor (Government of Canada, Church, Group of 5) Need UNHCR approval Processed like an immigration application, at visa office abroad Inland or POE claim Claim at IRCC office Eligibility decision, referral to Refugee Protection Division Hearing before single-member tribunal, Minister can intervene Right of appeal to Refugee Appeal Division (fact and law) Success: permanent residence application, Travel Document, non-refoulement Failure: removal order

Humanitarian and compassionate grounds If inadmissible or unable to meet requirements, can apply for permanent residence if there are sufficient “H & C” factors Establishment in Canada Family in Canada, lack of family abroad Factors abroad (medical inadequacies, discrimination, adverse country conditions) Family violence Consequences of family separation Best interests of a child directly affected Any other unique or exceptional circumstances “not contemplated by the Act”

Temporary Residence Visas and eTAs, temporary residence, permits

Visas and eTAs Visa: travel permission TR v. PR visa Temporary v. Permanent intent eTAs: ”visa for visa-exempt” Pre-screening

Temporary Residence Granted at POE How do you get to the POE? (visa/eTA/land/sea) Extended inland Implied status Expires with document or removal order Temporary intent, inadmissibility

Permits Work Permit Closed v. open Place of application (overseas, Port of Entry, inland) Temporary Foreign Worker Program Labour Market Impact Assessment International Mobility Program Treaties, Canada-provincial agreements (PNPs), public policies In Canada public policies Refugee claimants, impecunious students, humanitarian and compassionate grounds

Permits Study Permit Designated Learning Institution Work on- and off-campus Bona fide student Post Grad Work Permits

Temporary Residence FAQs I flew to Canada and never spoke to an immigration officer, how long can I stay? 6 months default I applied to extend my visitor / work / study permit, but no decision. Do I have to leave? Implied status I forgot to renew my permit, it is expired, what can I do? Restoration of status within 90 days Temporary Residence Permit after 90 days or leave Canada I found an employer who wants to hire me, can I apply for a work permit? Need LMIA (TFWP) or LMIA exemption (IMP)

Inadmissibility and enforcement Inadmissibility, removal orders, exceptions

Inadmissibility IRPA Sections 33 - 42 Security, human rights violations, criminality, organized crime, health*, financial, misrepresentation, non-compliance, inadmissible family member Criminal inadmissibility Temporary resident: criminality (& serious criminality) Indictable offence (offence with Crown election indictable) Permanent resident: serious criminality Max potential 10 years jail OR actual 6 months jail Right of appeal where 6 months jail See associated paper * excessive demand

Enforcement process (criminal conviction)

Removal orders IRPR 223: departure, exclusion, deportation Departure order: no prohibition on return Departure order 30 days deportation order Exclusion order: 1 year ban Deportation order: lifetime ban But spousal sponsorship

Immigration 101 Immigration law concepts for general practitioners Christopher G. Veeman. The significance of immigration law Status, rights, privileges, inadmissibility. Status Citizen Permanent resident (formerly "landed immigrant") Temporary resident (visitor, worker, student)