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February 24, 2021

New COVID-19 Strains Causing Pains for Immigration Canada: Undocumented Canadian Immigrant Programmes is Now the Time?

Posted by Mario Bellissimo - Bellissimo Law Group PC

The race is on.

On one side, there are new variants of COVID-19. On the other side, health care professionals and scientists scramble to adapt testing, vaccine development/responsiveness and effective treatment.

Caught right in the middle is our nation’s economy (record-high 13.7% unemployment in May), with unemployment hovering between 8 and 9% and, by extension, Canada’s immigration program. Immigration, Refugees and Citizenship Canada (IRCC) have been bold in their attempts to stem the tidal wave that is COVID-19. Despite extensive modernization efforts, the pandemic is outpacing IRCC.

2020 saw by most estimates an in excess of a 30% decline of immigration to Canada. In the latest bold initiative, 27,332 invitations to apply (ITA) to candidates with a minimum Comprehensive Ranking System (CRS) score of 75 – the lowest CRS requirement and the largest number of ITAs ever recorded in a single draw.

The focus was the Canadian Experience Class (CEC).

Why?

Because most of these applicants are already here. A ready inventory not subject to travel restrictions or country conditions outside Canada. This raised the question in my mind what might be next?

There can be further pushes to fast-track access to work permit holders and provincial nominee programs as just two examples. But what about the potentially largest and albeit the most controversial group of applicants?

Undocumented Migrants

There is no single overarching definition to apply to persons known as non-status (unlawful) 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 – 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.

Undocumented foreign nationals include rejected refugee claimants or Humanitarian and Compassionate (H&C) applicants or those who hold an expired work, study or visitor permit but have remained in Canada and gone “underground.” Undocumented persons can be those who do not hold any identity documents, including people who were trafficked illegally into Canada for various purposes. Clearly, the term “non-status” is far-reaching. Granting what is often referred to as “amnesties” is a tricky subject.

Previous Amnesty Programmes

Since 1960 Canada has developed at least nine programmes directed at regularizing the status of undocumented persons:

  1. Chinese Adjustment Statement Program:1960-1972
  2. Section 34 and the Immigration Appeal Board Act: 1968-1973
  3. Adjustment of Status Program:1973
  4. Special Regularization Program for Haitians in Quebec: 1981
  5. Minister’s Review Committee:1983-1985
  6. Administrative Review 1986
  7. Backlog Clearance Program 1989
  8. Deferred Removal Orders Class (DROC): 1994-1998
  9. 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. The 1960 programme guaranteed no prosecution or detention, while the 1973 program was well advertised and as such received a considerable response but only allowed a sixty-day period in which to apply. As a result of the Backlog Clearance Program from 1986 to the end of 1992, approximately 160,000 applications were accepted.

The 1986 program was efficient and effective but there was a serious flaw in that there was a significant delay in implementing a new refugee determination system that would allow for an oral hearing for each applicant. During this delay, tens of thousands of new refugee applicants flooded into Canada, believing that Canada was offering a kind of amnesty. The 1973 programme also led to a significant backlog.

Estimates on the number of undocumented 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. Is this even conceivable with current unemployment rates and the devastating universal deleterious effects of COVID-19?

Other key questions during these difficult economic times are there a significant criminal element within this group, and what are the current costs of deporting these individuals? Many years ago, in Spain, an amnesty in 2005 helped curb Spain’s population decline, fuelled consumer growth, and social security contributions helped offset a looming pension crisis.

The issue is admittedly highly complex, and solving the problem of regularizing workers could signal many unintended consequences, including rewarding, in some cases, immigration non-compliance. However, undocumented foreign nationals are often presumed to have been the authors of their demise – queue jumpers – exhibiting flagrant disregard for immigration law and policy. Such views ignore the reality of many such as victims of human trafficking. There may also be a large pool of individuals who are filling labour shortages and bringing them into the light, regularizing their contributions be it tax or otherwise, at one of Canada’s most challenging times.

What would a program look like?

To address many of the competing and complex interests involved as well as to avoid the mistakes of the past, a two-tier approach may be considered.  One category for persons deemed eligible for permanent residency consideration and the other for a temporary work permit program.

Permanent Resident Class – Programme I

Many factors could weigh into proposed criteria, including length of residency, employment, criminality and security, family, establishment and integration. It should be noted that any programs must exempt employers from any prosecution. Any such programme must consider the competing interests of addressing the acute need for such a program but deterring future unlawful migrants. In short, the criteria must walk the line between competing interests – much like Canada’s H&C program. Here are my thoughts.

Potential Criteria

Mandatory

  1. Any non-status person living in Canada for 3 years or more (similar to 1994 programme);
  2. Applicants would have 120 days to apply (similar to 1973 programme) or upon completion of programme II (see below) after they receive an invitation to apply (ITA) preceded by an expression of interest;
  3. Applicants to apply online within Canada;
  4. Must have an identity document (similar to 1981 programme);
  5. Must be between the ages of 22 to 49 unless they apply by virtue of programme II (see below);
  6. Must pass security, medical and criminal checks (most programmes);
  7. Must have applied for a status document after entry to Canada including an extension, protected person claims or in Canada permanent residency application (similar to 1983 programme);
  8. Special consideration to front-line workers;

Additional Non-Mandatory Factors or Sub-groups resulting in additional points:

  1. Currently employed or subject to a positive Labour Market Impact Assessment (LMIA) (similar to 1994 programme); and
  2. Must not have accessed social assistance excluding disability (1994 Programme).
  3. Applicable language levels (1981 programme);
  4. Family in Canada additional points (1983 programme);
  5. Integration and establishment (1986 and 1989 programmes);
  6. Positive history with CBSA – any history of active avoidance, i.e., failure to attend an immigration hearing, interview.

Important Considerations

  1. Agreement from CBSA not to remove during the processing of permanent residency application.
  2. Appeal of a refusal would go before the Immigration Appeal Division (IAD), so the program would have oversight. Given pending backlog at IAD may not be a popular position.

This recommended class balances a potential need for a pool of immigrants but also imposes various backward working criteria to ensure we are landing only those identified as a need while attempting to preserve elements of the integrity of our immigration program. As suggested, an expression of interest stage followed by invitations to apply for permanent residence in Canada can ensure program targets, control and no backlog. At the same time, a one-time program will not sufficiently deal with the need, and if we are to learn from past programmes, there must exist a fail-safe or secondary programme of a longer duration to resolve any gaps, oversights and unresolved needs in the first programme.

VII. Temporary Worker Class – Programme II

Criteria

Mandatory

  1. One year pilot project;
  2. Any non-status person living in Canada for 1 year or more;
  3. Applicants to apply online – point system resulting in ITAs;
  4. Must have an identity document (similar to 1981 programme);
  5. Must pass security, medical and criminal checks (most programmes);
  6. Can apply for permanent residence after two years and must apply within 180 days;
  7. Must be sponsored financially by a person or an organization (similar to 2002 programme);
  8. Employment skills in areas of need special consideration – again frontline workers;

Non-Mandatory Factors

  1. Bonafide job offer or subject to a positive Labour Market Impact Assessment (LMIA) (similar to 1994 programme); and
  2. Must not have accessed social assistance excluding disability (similar to 1994 programme).
  3. Language skills (1981 programme);
  4. Family in Canada (1983 programme);
  5. Integration and establishment (1986 and 1989 programmes); and
  6. Positive history with CBSA – any history of active avoidance, i.e., failure to attend an immigration hearing, interview.

Important Considerations

  1. Agreement from CBSA not to remove during the processing of permanent residency application.
  2. Appeal of a refusal would be an application for leave before the Federal Court of Canada.

Conclusion

With a high national unemployment rate and the dire state of the economy, some Canadians may voice strong opposition and conjure historical stereotypes of unlawful immigrants riddled with criminal records as taking employment from honest, hard-working Canadians. However, the counterarguments are many.

Canadian demographics support the need for a huge influx of immigrant labour. LMIAs are becoming increasingly difficult to obtain. Canadians are not making up for gaps in the labour force for a myriad of reasons. Unintended consequences may flow as an invitation threshold of 75 in the last draw can become a field day for unscrupulous representatives marketing it as anyone can qualify. “To be” permanent residents await clearance to land, and the new strains will be causing a lot of pain to inflow from abroad for the next several months. So much is at stake.

If IRCC does decide to go down this road, it is incumbent upon the government to launch the initiatives in conjunction with any new policy, a comprehensive communication and education campaign to allay such concerns with ample notice. If implemented effectively, in the future, these programmes will not be perceived as rewarding poor conduct but potentially a necessary and innovative response to an incredibly challenging time.

I end as I began.

Undocumented Canadian Immigrant Programmes Is Now the Time?