The political, economic and legal climate in Canada is constantly changing when it comes to temporary and permanent immigration.
UNDERSTANDING POLITICS AND POLICY
As in many parts of the world, there is a tendency to restrict immigrant access to Canada, but there are also countervailing economic and social realities. For example, Canada’s Immigration Act was amended on 28 June 2002 (and has continued to be amended since), generally making the rules more restrictive. In contrast, certain temporary entry programmes were made less restrictive – for example, for computer professionals – to reflect real economic demand in the sector. While we hope to provide you with accurate and up-to-date information about Canadian immigration law and policy, you will need to clarify matters pertaining to your own case with the appropriate authorities or professionals at the time you apply for permanent or temporary immigration. In addition, Canadian immigration law covers many volumes, which obviously cannot be summarised in a single chapter.
There are some important principles that you should know in order to understand our immigration policy and philosophy. An understanding of these principles often leads to a better understanding of the underlying laws and regulations and therefore the guidance that will affect you.
A number of principles are enshrined in Canadian immigration law. Canada’s immigration laws are designed to promote, among other things.
- cultural and social enrichment;
- Trade and commerce through the temporary entry of visitors;
- Canada’s international humanitarian obligations;
- a strong and viable economy;
- the maintenance of the health, safety and security of Canadian society.
These basic principles are then adapted to specific issues. In terms of temporary worker entry, the philosophy is “net benefit to Canada”, i.e. does an applicant provide some benefit to Canada that justifies hiring a foreign worker? This is in contrast to the philosophy of the previous law, which was “Canadians first”. As discussed below, this leads to various procedures that immigration authorities must satisfy before a foreign worker has the right to enter and work in Canada, as well as an elaborate system of exceptions that must be considered.
As far as permanent residence is concerned, the guiding principles determine the criteria for the selection of immigrants. Taking into account demographic, economic and other aspects, Canada encourages immigration, although recently a tougher attitude sometimes seems to prevail among those who make the selection decisions. The Federal Court of Canada is full of cases of rejected immigration applicants, and there seems to be no let-up in sight.
With this in mind, let us look at some of the problems facing Canadian immigration.
Before we look at the general problems of entering or staying in Canada, it is important to know that violations of Canada’s immigration laws can have serious consequences. Below, we will discuss the various programmes and policies that affect immigration to Canada and that allow people to come to and stay in Canada. However, in recent years, illegal immigration to Canada has increased and the authorities are taking increasingly harsh action against people who are caught doing so. Anyone attempting to enter Canada without the required permit and documentation will be strictly controlled by Canadian immigration authorities, whether before boarding the plane or after landing, once the problem is discovered. Canadian immigration authorities now carry out identity checks at foreign airports before people can even board the plane.
Similarly, someone already in Canada who violates Canadian immigration or criminal law faces deportation. Compliance with Canadian immigration regulations is no laughing matter and the consequences of non-compliance can lead to deportation and make it impossible to return to Canada.
KNOWLEDGE OF THE GENERAL REQUIREMENTS
If you wish to enter Canada, you should ensure that you meet all the necessary requirements. These may include:
- Obtaining a visa prior to entry for certain nationalities. The list changes from time to time – see Figure 3 for the current list. If in doubt, consult a Canadian visa office.
- Ensure that there are no criminal barriers to entry – a criminal record may result in refusal of entry to Canada for permanent or temporary purposes.
- Ensure there is no medical inadmissibility – the presence of a medical condition that could endanger the health and safety of Canada or place a burden on our health care system could result in inadmissibility.
- In addition, special conditions may be required in certain cases, such as a work permit for those who wish to work in Canada. We provide a basic overview of the legal aspects of the process here. If you think you are eligible for any of the above, you will need to look into the relevant procedures.
You will need to:
- obtain the appropriate forms – note that since November 2008, all applications for permanent residence for professionals have been sent to a central processing centre in Sydney, Nova Scotia. From there, the documents are checked and forwarded to the geographically responsible visa office for further processing. Basic information is submitted in Sydney, but further documentation is only submitted at the request of the local visa office;
- deal with the practical aspects of the application process;
- be aware of the correct documentation required by a Canadian visa office in order to be prepared for the right time. Canada divides people entering the country into two basic groups – temporary and permanent – both of which are covered on pages 32-43.
TEMPORARY VISA ISSUES
Temporary entry can be divided into three areas:
- temporary residents (formerly visitors visa)
- students visa
- foreign workers visa
There are exceptional circumstances that may lead to entry for other reasons (e.g. through a temporary residence permit when a person would not otherwise be allowed to enter), but these are the basic categories. It should be noted that even for persons for whom the categories of “student” or “worker” seem applicable, the issues discussed below in relation to temporary residents also apply and should be considered.
Temporary residents/visitors visa
Visitors are temporary residents who do not come to Canada to study or work. Visitors can, of course, have a variety of purposes, from the most basic form of a mere tourist to people who come for business purposes. Anyone who is not studying or working falls into this broad category.
Technically, anyone wishing to come to Canada as a visitor must apply for a temporary resident visa at a Canadian visa centre (embassy, consulate or High Commission for Immigration Affairs) before entering the country. Nationals of certain countries, including the United Kingdom, are exempt from this requirement (see Figure 3 for a list of countries requiring visas). However, this does not mean that British nationals, to give just one example of a country that is exempt from the visa requirement, are immune from enforcement of Canada’s immigration laws. Indeed, anyone who appears at a Canadian port of entry (anywhere one enters Canada, whether at an airport, seaport or land crossing) must prove their eligibility to enter Canada and may be questioned as to the reason for their entry request.
Students wishing to study in Canada must meet a number of requirements in addition to those listed above, and must usually apply for a student visa before arriving in Canada. First, a student must have admission to a Canadian educational institution. Certain institutions do not meet the requirements and it is necessary to check with a Canadian visa office or immigration consultant before applying.
As a student, you will also need to demonstrate that you are able to support yourself while in Canada – perhaps with a sum of $10,000 to $15,000 or more – and that you intend to return after completing your studies. Again, it is important to note that a student visa is temporary and applicants must convince an officer that they do not intend to remain in Canada permanently. Nevertheless, it is possible to extend the student visa after arrival in Canada if the educational programme continues from year to year or in a different time frame, or if there is a change of institution. At some point, however, the visa will expire.
In some cases, students are also eligible for a non-renewable one or two-year work permit to work in their field of study after completing their programme.
See also the discussion in Chapter 8 on some of the exchange programmes and other student-specific programmes for entry into Canada.
Foreign workers visa
This is perhaps the most inquired about and misunderstood aspect of Canadian immigration. People often say that if they can’t get permanent residency, they’ll just come to work temporarily. Unfortunately, it is not that simple. A temporary work permit is not a substitute for permanent residency or an inferior form of permanent residency. It is sometimes more difficult to obtain a temporary work permit than a permanent residence permit. See also Chapter 7 for information on working in Canada.
The usual procedure
Subject to the exceptions explained later (which should be tried first if possible), the general procedure for obtaining a work permit is as follows.
Canada’s policy, as mentioned earlier, is “net benefit to Canada”. A foreign national can only work in Canada if it is justified, and this may include whether there is no Canadian to fill a position. Therefore, the process begins with the employer.
Under legislation that came into force on 28 June 2002, an employer must present a number of factors to a Service Canada official (acting on behalf of Human Resources and Skills Development Canada) before a ‘positive labour market opinion’ (also referred to as a confirmation or LMO) can be given, which is the precursor to an application for a work permit. The Service Canada officer will consider factors including:
- whether the work is likely to result in the direct creation or retention of employment for Canadians (Canadians include citizens and permanent residents);
- whether the work is likely to lead to the creation or transfer of skills and knowledge for the benefit of Canadians;
- whether the work is likely to address a labour shortage;
- whether the wages and working conditions offered are sufficient to attract and retain Canadians;
- whether the employer has made or promised to make reasonable efforts to recruit or train Canadians;
- whether the employment of the foreign national could interfere with the resolution of a labour dispute. Once Service Canada has issued a favourable Labour Market Opinion, a foreign worker may apply for a work permit at the relevant Canadian visa office (or in some cases, at the point of entry). The worker must prove that his or her qualifications meet the requirements of the job in question. Of course, a temporary work permit is indeed also temporary and is usually issued for one year initially and can be renewed thereafter – provided the reason for the renewal can be demonstrated.
Due to the structure of the programme, the less demanding a job or an applicant’s qualifications are, the less likely it is that a confirmation and/or work permit will be issued, as it is less likely that there will be no Canadians to fill the position.
Typically, permitted occupations are classified as NOC 0, A or B. Although this is beyond the scope of this book, NOC is the National Occupational Classification. All occupations are placed on a grid, with the “0” level representing management positions; A and B are high-level occupations that usually require a university degree (for more information on NOC and the categorisation of occupations, see http://www23.hrdc-drhc.gc.ca/2001/e/generic/matrix.pdf).
However, Service Canada now offers a “low skilled occupation programme” (NOC C and D) that allows employers to apply for a low skilled occupation endorsement if workers meet certain hiring requirements and working conditions. There are a number of conditions that must be met in this regard, and perhaps most importantly, a sustained effort to find people for the job.
Service Canada offers “enhanced” programmes from time to time that can be beneficial to employers (and therefore employees). For example, at the time of publication of this issue, there is an expedited labour market assessment process for British Columbia and Alberta. Under this process, an employer can indicate on a predetermined list that they have frequent needs for certain occupations, and if they have a need in that area, they can make a simplified application that is processed within a few days.