Mr. Osagie, a citizen of Nigeria and a medical doctor, had become a permanent resident of Canada in August 2009, as did his wife and children. Unlike the rest of his family, Mr. Osagie did not become a citizen as he had returned to Nigeria to work as a doctor due to family obligation, specifically.

In May 2015, Mr. Osagie applied to renew Permanent Resident (“PR”) Card from within Canada. In August 2015, he received a letter from Citizenship and Immigration Canada (“CIC”, now called Immigration, Refugees and Citizenship Canada or “IRCC”) stating that, although he did not meet his residency obligation, he had sufficient humanitarian and compassionate (“H&C”) factors to allow him to retain his permanent resident status. However, Mr. Osagie’s previous PR Card had already expired and so, the following day, he called IRCC to make an urgent request to have his renewed PR Card issued to him as he had to travel to Nigeria. His urgent request was refused, but he was advised he could apply for a PR Travel Document while in Nigeria in order to return to Canada. Mr. Osagie travelled as planned and applied for the Travel Document from within Lagos, Nigeria as he was instructed, but his application for a Travel Document was refused as he did not meet his residency obligation.

Mr. Osagie appealed this residency obligation determination to the IAD and two issues were identified for resolution on appeal: first, whether the decision of the Visa Office in Lagos was legally valid; and, second, whether Mr. Osagie qualified for special relief under H&C grounds.

The IAD determined that Mr. Osagie failed on both grounds and dismissed the Appeal. In assessing the reasons for departure, among other findings, the IAD determined he could have secured a job in Canada but chose not to and that other members of Mr. Osagie’s family could have provided care to his aging parents in his place. The IAD also determined that it was likely Mr. Osagie would continue to work in Nigeria as a medical doctor even if the appeal was granted.

In a strongly worded decision, Justice Ahmed found the IAD’s H&C analysis to be unreasonably based on irrelevant factors, notably finding that the IAD is tasked with reviewing H&C factors and not with the likelihood of an appellant’s future compliance with the residency obligation. Considering the cultural realities of Mr. Osagie’s role as the eldest son and his occupation as a doctor, Justice Ahmed stated that the IAD “has no business” determining that Mr. Osagie had many siblings who could have provided care to his aging parents in his place. Justice Ahmed took issue with the IAD’s comment that “[i]mmigrating to a new country includes making difficult choices”, highlighting that:

” Immigration does involve difficult choices. This is why Parliament provided flexibility and relief from what would otherwise result in harsh consequences under a rigid application of the residency requirement. The decision-maker is owed deference in weighing the relevant factors. But the IAD’s casual statement that immigration entails difficult choices, along with the bald assertion of a plausible alternative course of action, is insufficient. ”

The decision was returned to the IAD for re-determination, indicating that the Court may not be willing to accept reliance upon the inherent “difficult choices” involved in immigrating to Canada, or the likelihood of future compliance in residency appeals, as a basis upon which to avoid affording an appellant the relief allowed under the IRPA.

The post Judicial Review of a Residency Obligation Appeal Before the Immigration Appeal Division Returned for Re-determination first appeared on Bellissimo Law Group.

A: Commencing in January 2013, Citizenship and Immigration Canada introduced new legislation, requiring biometric information (fingerprints and photographs) from foreign national applicants of 29 countries including Afghanistan, Albania, Algeria, Bangladesh, Burma (Myanmar), Cambodia, Colombia, Democratic Republic of Congo, Egypt, Eritrea, Haiti, Iran, Iraq, Jamaica, Jordan, Laos, Lebanon, Libya, Nigeria, Pakistan, Palestinian Authority, Saudi Arabia, Somalia, Sri Lanka, Sudan, South Sudan, Syria, Tunisia, Vietnam, and Yemen who want to enter Canada as temporary residents (visitors, students, workers). Canada is not alone introducing this requirement. Other countries that use biometrics for border security or immigration control include the United Kingdom, Australia, New Zealand, Japan, South Korea, the United Arab Emirates, Indonesia, Malaysia, and Saudi Arabia.  The United States Homeland Security also has biometric registration.

The intention of biometrics is to reduce fraud.  The Government of Canada website reads:

Canadian visa officers use biometrics to confirm your identity. Biometrics also helps to:

• make it more difficult for someone to forge, steal or use your identity,
• resolve problems or errors that may happen if your name, date of birth and/or place of birth are similar to those of someone else, and
• confirm your identity the next time you apply, so it is easier for you to re-enter Canada.

How does it work?

An applicant must attend in person, and officers will verify identity, so that no one else could impersonate that same applicant in future applications. There are Visa Application Centres (VAC) or other Immigration Refugees and Citizenship Canada offices outside of Canada that can assist applicants with this procedure. Of note is that an applicant may submit the biometrics after the submission of their application.  Once an applicant obtains a multiple entry visa for example, biometrics is not required for each entry unless an applicant wants to change status from visitor to student or worker.

Privacy issues have been raised as a concern and the list as potentially discriminatory.  Media reports at the time of introduction highlighted the justification for the list:

The list of countries was developed by the CIC after working in 2011 with other governmental agencies such as the Canadian Security Intelligence Service and the Royal Canadian Mounted Police. CIC also worked with the Department of Foreign Affairs and International Trade and Canada Border Services Agency, among others.

The Gazette explained the countries were selected “following a systematic assessment of immigration patterns including volumes or rates of TRV refusals, removal orders, refugee claims, and nationals arriving without proper documentation, attempting to travel to Canada without proper documentation or under a false identity.”

There are however exemptions to the groups of individuals required to submit an application. Foreign nationals under the age of 14 or over the age of 80 will not be required to submit biometrics. Additionally, those travelling on diplomatic missions or representatives of foreign governments, the United Nations, or intergovernmental agencies involving Canada will be exempt. Foreign nationals will also be exempt if transiting through Canada for less than 48 hours and originating from the United States.

For your purposes as this lengthens the period of time for processing your application, consideration should be given to the list and in your case only Jamaica is on the list.  It is always recommended  an applicant consult an immigration lawyer or regulated consultant before taking any steps on your application.

Good luck!

For more information, click here and here.

The post What Does Dual Citizenship and Biometrics Have to Do With One Another? first appeared on Bellissimo Law Group.

The Immigration and Refugee Board of Canada (IRB) also announced that in the event of a work disruption at Canada Post, clients must still provide documents by using one of the other methods set out in the IRB Rules within required time frames, either in person or by courier.

For more information on the Canada Post work disruption, please click here.

(Sources)

The post CIC Advises Clients About Potential Canada Post Disruption first appeared on Bellissimo Law Group.

The Federal government is proposing changes that would end the two-year waiting period for certain sponsored spouses and partners, and grant them unconditional permanent resident status upon their arrival in Canada.

Currently, certain sponsored spouses and partners must live with their sponsor for at least two years after obtaining permanent residence or risk losing status. Critics have argued that the sponsorship condition reinforces the ability of an abuser to exercise control over a sponsored spouse who, facing possible deportation, stays in an abusive relationship.

Until the government puts the proposed changes in place, certain sponsored spouses and partners continue to face such risks if their relationship with their sponsor breaks down within the two-year waiting period.

Why was the condition first introduced?

The condition was designed to deter foreign nationals from entering fraudulent marriages to quickly obtain permanent residence status in Canada. According to the government, these marriages of convenience “undermine the integrity of Canada’s citizenship and immigration programs.”

The condition, introduced back in 2012, requires certain sponsored spouses and partners to live in a continuous, conjugal relationship with their sponsors for at least two years after they become a permanent resident. Failing to meet this condition could result in loss of status.

An immigration officer can conduct random investigations to verify that the sponsored spouse or partner is complying with the condition (e.g. living in a “marriage-like relationship” with the sponsor). Even after the two-year period has passed, the officer can still investigate if he or she has proof that the couple was not living together during the two-year period.

To whom does the condition apply?

This condition applies to sponsored spouses and partners who:

• applied for sponsorship on or after 25 October 2012
• did not have children with their sponsor at the time they sent in their application
• had been in a conjugal relationship with their sponsor for two years or less at the time they sent in their application.

Determining if this condition applies to a relationship is not straightforward. Consider the following examples of couples, with one Canadian sponsor and one foreign national (the sponsored spouse/partner), who had no children when they applied for permanent resident status on 25 October 2012. Assuming their sponsorship applications are all successful, which of the two couples do you think is bound by the condition?

• Couple X dated for two years, got married, and then, one year later, made a sponsorship application as spouses.
• Couple Y dated for a year, lived together in a common-law relationship for three years, got married and then, one year later, applied as spouses.

Answer: Both of them.

Couple X’s years of dating do not count and their one year of marriage falls short of the two-year requirement. Couple Y does not meet the minimum requirement either as they submitted an application as spouses (a married couple) – their previous three years of living common-law do not count.

If the couples separated within two years of the sponsored person obtaining permanent resident status, the sponsored person could lose his or her status. This loss of status could also affect the sponsored person’s accompanying family members who became permanent residents through the sponsored person’s application.

The condition is not absolute, however. Even if the sponsored person is bound by the condition, he or she will not automatically lose status if the relationship breaks down and the couple separates or divorces before the two year period. There are exceptions:

• if the sponsor dies
• if the sponsor subjects the sponsored person to certain types of abuse or neglect
• if the sponsor fails to protect the sponsored person from such abuse or neglect.

In situations of abuse or neglect, the sponsored person can request an exception by contacting CIC. As not all individuals requesting an exception are successful, it’s advisable that the sponsored person speak to a support worker or a lawyer first.

For more information on Sponsorship, click here.

(Sources)

The post Parting Ways & PR: Can Divorce or Separation Affect Your Permanent Residence Status? first appeared on Bellissimo Law Group.

Article 36 of the Immigration and Refugee Protection Act (the Act) sets out the circumstances in which a foreign national or permanent resident would be considered inadmissible, whether convicted inside or outside of Canada. It also addresses situations of possible consideration to overcome criminal inadmissibility, inclusive of: being deemed rehabilitated, applying for rehabilitation to Citizenship and Immigration Canada, and obtaining a pardon or record suspension.

With respect to convictions that occur inside of Canada (according to the Act), there is no option to be deemed rehabilitated or to apply for rehabilitation. In most cases, the sole recourse is to obtain a record suspension (formerly referred to as a pardon) from the Parole Board of Canada (PBC).

Prior to 2012, getting a record suspension from the PBC was relatively easy and inexpensive. However, in 2012, changes to the Criminal Records Act came into force, making obtaining a record suspension in Canada more difficult. Among the more significant changes were quadrupling application fees (from $150 to $631, even for less serious offences) and a considerable increase in the waiting period before a person would be eligible to apply for a record suspension after completing their sentence.

Unsurprisingly, these changes resulted in a staggering drop in the amount of record suspension applications received by the PBC. Compared to 2011-2012 levels, the amount of applications received last year dropped by over fifty percent.

Many critics have called these changes punitive and disproportionate because the old system was generally considered to be working fine. To wit, the recidivism rate for individuals who obtain record suspensions was last measured to be less than 1 percent.

However, good news may be on the way for those people (including foreign nationals and permanent residents) with Canadian criminal records seeking a second chance through obtaining a record suspension. CBC news spoke recently to Canada’s Public Safety Minister, Ralph Goodale, who vowed that the changes made in 2012 may soon be reversed.

It remains to be seen what changes will be implemented by the new government and when these changes will occur; a reduction in fees and waiting times is expected, along with a return to the term “pardon”. Stay tuned for updates.

For more information on Criminal Inadmissibility, please click here.

(Sources)

The post Record Suspensions for Criminal Convictions in Canada: Changes May be on the Way! first appeared on Bellissimo Law Group.

A long time client was recently granted Canadian Citizenship after beginning the citizenship process back in 2010. Initially, residence issues were presented, and once settled, the matter was tied up for years in a CIC (Citizenship and Immigration Canada) investigation due to believed travel outside of Canada. We provided fulsome evidence to support the Applicant’s position and submitted a demand letter to CIC to process the application to conclusion. Only following persistent and tenacious follow-ups with CIC, was the Applicant able to finally secure citizenship. Although it was a lengthy process, we are happy to have assisted in securing citizenship.

The post This Week’s Featured Success Story: Canadian Citizenship Granted After Lengthy Process! first appeared on Bellissimo Law Group.

An application for permanent resident status, based on a spousal sponsorship, was approved within 6 months! The application was sent to Citizenship and Immigration Canada (CIC) in the middle of July 2015 and by the end of November 2015 the visa was ready. At the time of filing the application, for this particular office, the processing time was 28 months. The case faced challenges, as the sponsor was a young person who was in the process of completing her schooling and searching for employment. Concerns were raised by the visa office regarding the financial situation of the sponsor and her ability to fulfill her sponsorship obligations. The application was approved after additional submissions were made, addressing the financial admissibility. We are very pleased that this young couple will be reunited in Canada very soon.

The post This Week’s Featured Success Story: Couple Reunited After Successful Sponsorship Application! first appeared on Bellissimo Law Group.

Click here to read our latest blog and for information on the Parent and Grandparent Program.

The post 2016 Parent and Grandparent Program first appeared on Bellissimo Law Group.

It is an unfortunate reality that spousal sponsorships submitted under the in-Canada class have lengthy processing times. This pilot program allows spouses and partners to gain valuable Canadian work experience and assist in relieving the financial burden they may place on their sponsors currently supporting them in Canada.

In order to be eligible for the open work permit pilot program, the applicant must meet the following eligibility requirements:

• The spouse has submitted an application for permanent residence as a member of the in-Canada spousal class;
• A Canadian citizen or permanent resident spouse has submitted a sponsorship application on behalf of the applicant;
• The spouse and the sponsor reside at the same address; and
• The spouse has valid temporary resident status in Canada as a visitor, student or worker.

(Source)

The post Open Work Permit Pilot Program for Inland Sponsorships Extended first appeared on Bellissimo Law Group.

Out of Status – if you are in Canada without status, there is a risk that by filing a sponsorship application you will come to the attention of immigration officials and may face removal from Canada. This tends to occur, in particular, with foreign nationals who have already received a removal order (i.e., as by having made a refugee claim in Canada). If you are removed from Canada before the application is processed to approval in principal – presently about 17 months – the application will be refused as you are no longer eligible, being outside of Canada.

Conjugal Partners – if you are not legally married or in a common-law relationship (cohabited in a romantic relationship for at least one-year), you cannot be sponsored with an In-Canada application for permanent residence.

Appeal Rights – if the application for permanent residence is refused, only overseas applicants are able to appeal that decision to the Immigration Appeal Division (IAD). The IAD is able to consider the evidence and replace the decision of the Visa Office. So if the application was refused because the Visa Office did not believe the relationship was genuine, the IAD could replace that decision, determine that the relationship was genuine, and the Visa Office is bound by that decision. If the sponsorship was made for in-Canada processing, there is no appeal right; however, the refused foreign national may challenge the decision to the Federal Court of Canada (FCC). The FCC is not an appeal, so if for example you are successful at the FCC, the application is returned to the Canadian processing centre for a reconsideration of the genuineness of the relationship.

Work Permit – there is presently a one-year pilot project (ending in December 2015, but may be continued) which permits foreign nationals in Canada, being sponsored in an In-Canada application for permanent residence, to obtain an open work permit soon after processing has commenced. If the foreign national’s application is being processed overseas, there is no automatic access to a work permit.

Interviews – if an interview is required, it will take place in the location where the application is being processed. So, if your application is being processed overseas and you are requested to attend an interview, you would need to travel overseas to the Visa Office to attend that interview. Once you depart Canada, your return would depend on whether you have a visa to re-enter Canada and/or on the decision of immigration officers at the port of entry.

Timing – as indicated, an In-Canada application will be processed to approval in principle in approximately 17 months. It will take an additional 10 months for medical, security and other verifications, for a total of 27 months of processing. Overseas applications are generally processed more quickly: after approximately 2 months of processing in Canada, the application is transferred to an overseas Visa Office. Overseas processing can be as quick as 5 months (Sao Paulo) or as slow as 47 months (Islamabad), so 7 to 49 months total processing time.

Ongoing Travel – an In-Canada application requires that you cohabit with the sponsor, so if there will be lengthy periods of departure from Canada then you may not be eligible for an In-Canada sponsorship. Furthermore, once the application has been submitted it is more likely that your intentions will be questioned upon entrance to Canada: i.e., are you entering Canada as a visitor or do you have a permanent intention? If an immigration officer at the port of entry to Canada believes that your intentions are permanent and also that you are likely not to comply with the terms of your entrance to Canada, you may be refused admission. As indicated above, if you cease to be in Canada and stop cohabiting with your spouse, then your In-Canada application for permanent residence will be refused.

For more information on Spousal Sponsorship, please click here.

The post Spousal & Common-law Sponsorships – in Canada or from overseas? first appeared on Bellissimo Law Group.