May 29, 2024
“Amnesties” Separating Fact from Fiction: A Pathway to Permanent Residence or Worker Permit Holder for Non-Status Workers
There has been much coverage about a potential immigration “amnesty”. Estimates on the current number of non-status persons range from 10,000 to 200,000 and as high as one million, a disparity, which suggests that this may be a larger issue than many believe. The issue is admittedly complex, and solving the problem of regularizing workers could signal many unintended consequences, including the common refrain of rewarding, in some cases, immigration non-compliance.
The issue is far more complex.
I have been studying and working on developing potential pathways since 2007. Granting what is often referred to as “amnesties” is a sensitive subject. Even the term amnesty is fraught with so much socio-political and economic negative baggage it serves to further muddy what is in essence an alternative immigration pathway. Sometimes nomenclature or labels rise above underlying intent and the benefits certain programs can deliver. Let’s look at a few facts versus fiction.
Fiction:
Any program would benefit only queue jumpers. Foreign nationals who have not applied in the normal course.
Fact:
Non-status or a narrow term undocumented foreign nationals are often presumed to have been the authors of their demise – queue jumpers – exhibiting flagrant disregard for immigration law and policy. Yet, there is no single overarching definition to apply to persons known as non-status foreign nationals. They could include people who do not have legal documents that permit them to remain in Canada on a permanent basis. They could be either documented – meaning that they are known to Immigration, Refugees, and Citizenship Canada (IRCC) – or they could be undocumented – meaning that IRCC and the Canada Border Services Agency (CBSA) have no knowledge of their presence or continued presence in Canada.
Non-status foreign nationals include those who hold an expired work, study, or visitor permit but have remained in Canada and gone underground, rejected refugee claimants or Humanitarian and Compassionate (H&C) applicants. But non-status persons can also be those who do not hold any identity documents, counting people who were trafficked unlawfully into Canada for various purposes, brought here as children, or are victims of abuse including intimate partner violence and from Canadian employers. There are also those that fell out of status because they were under-represented or a victim of an unscrupulous representative. A chronic and long-standing problem.
Also, consider the large number of workers that are performing essential services that have no pathway and have been left behind by sometimes restrictive immigration programs that did not connect with the reality of Canada’s labor needs. A potentially large pool of individuals who are filling labor shortages and bringing them into the light, regularizing their contributions be it tax or otherwise, at one of Canada’s most challenging times may offer more benefits than harms. So, the term “non-status” is therefore, far-reaching and narrow views ignore the reality of many non-status workers.
Fiction:
An amnesty is unheard of we do not do this in Canada. We always reward only those “immigrants” who line up and do things right!
Fact:
Actually, since 1960 Canada has developed at least nine programs directed at regularizing the status of non-status foreign nationals:
- Chinese Adjustment Statement Program: 1960-1972
- Section 34 and the Immigration Appeal Board Act: 1968-1973
- Adjustment of Status Program: 1973
- Special Regularization Program for Haitians in Quebec: 1981
- Minister’s Review Committee: 1983-1985
- Administrative Review 1986
- Backlog Clearance Program 1989
- Deferred Removal Orders Class (DROC): 1994-1998
- Special Regularization Procedure for Algerians in Quebec: 2002
They ranged in size and scope from regularizing as few as 900 persons to over 100,000. Many required in-person applications, a good moral character, some form of lengthy residency, and a need for more workers, response to political or backlog pressure and market adjustment were most often the impetus behind the measures.
It is also important to highlight that in 2008 by ministerial instruction the Canadian government unilaterally terminated applications in the Federal Skilled Worker backlog, some of which had foreign nationals waiting for eight years after lawfully applying and paying their processing fees. The case was litigated but the government’s action was ultimately upheld in Tabingo v. Canada (M.C.I.), 2014 FCA 191. This action blurred the line with respect to our treatment of applicants seemingly waiting “patiently” and “properly”. It also serves as an important reminder that immigration programs are best measured and viewed in the economic and socio-political context in which they arise. The decisions to launch a program are complex and cannot be neatly divided or value characterized into those that “deserve” and those that “do not deserve” immigration pathways.
Does a Canadian Immigration “Amnesty” Make Sense in 2024?
Based on recent reports the government is deciding. In my next blog, I will highlight a two-tiered program that was presented to the government and had support from a number of Members of Parliament most notably Julie Dzerowicz, Member of Parliament, Davenport.
Thank you for reading.