What is Cessation?

In Canada, refugee protection can be ceased for any of the following five reasons:

1. the person has voluntarily reavailed themself of the protection of their country of nationality;
2. the person has voluntarily reacquired their nationality;
3. the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
4. the person has voluntarily become re-established in the country that the person left or remained outside of and in respect of which the person claimed refugee protection in Canada; or
5. the reasons for which the person sought refugee protection have ceased to exist.

Prior to 2012, cessation only affected your refugee protection. But on 15 December 2012, the Protecting Canada’s Immigration System Act (S.C. 2012, c. 17; PCISA) came into effect. The PCISA changed the law so that when your refugee protection is ceased for reasons (1) through (4), you also lose your Permanent Residence.

Ceased refugees also become inadmissible. An inadmissible person is supposed to leave Canada. Their future applications to stay in Canada or return to Canada will normally be refused, unless they get special permission to get around their inadmissibility. There is no guarantee that they can get that special permission. Further, ceased refugees cannot ask for that special permission for at least one year following the cessation of protection. (Unless removal would subject them to a risk to their life caused by inability to obtain adequate health or medical care, or removal would have a direct, adverse effect on the best interests of a child).

Ceased refugees cannot make new refugee claims at the Immigration and Refugee Board.

For one year after cessation, they also cannot apply for discretionary Temporary Resident Permits, nor Pre-Removal Risk Assessments – unless their protection was ceased because of reason (5), in which case there is currently a policy allowing them to apply for a Pre-Removal Risk Assessment before one year passes, with certain exceptions beyond the scope of this post.

What is “Reavailment”?

Refugee protection is based on the assumption that a refugee cannot depend on the protection of their home country. Under international law, a refugee loses their protection when they go back to relying on that country’s protection. When a refugee relies on their home country’s protection, it is called “reavailment”.

The following behaviours are presumed to count as reavailment:

1. Renewing a passport from your home country
2. Using a passport from your home country to travel to another country
3. Entering your home country

Most people just think of a passport as a document that lets you travel. But requesting or using a passport from a country can be seen as a declaration you trust that country to protect you as you travel, and to help you if something goes wrong abroad – i.e. that you are relying on that country’s “diplomatic protection”.

What Happens if the Canadian Government Tries to Take My Refugee Protection?

If the Canadian government suspects someone has done any of the above, it may investigate and make an Application to Cease Refugee Protection (ACRP). Once an ACRP has been made, a hearing will eventually be scheduled before the Immigration and Refugee Board’s Refugee Protection Division (RPD). The RPD will decide whether you keep or loses your refugee protection.

Unfortunately, while the ACRP is pending, the government will often put a hold on the refugee’s citizenship applications and applications to sponsor.

Cessation is a complicated and rapidly-evolving area of law. So far in 2019, 88% of cessation hearings have ended with loss of status. If you are facing an ACRP, you should consult an immigration/refugee lawyer immediately.

Strategies for Dealing with an ACRP

Let’s start with the bad news: if someone obtains refugee protection in Canada, and then either obtains or uses a passport from the country against which they claimed protection (or returned to that country), there are no clear circumstances where they can avoid cessation. Unfortunately, many refugees risk returning home for understandable reasons – most often family emergencies.

However, even if you renewed/used a passport from the country against which you claimed protection, it may not count as reavailment if the act was not voluntary, was not intended to show reliance on that country’s protection, or did not successfully attract that country’s protection:

• Voluntariness:
  • Were you a minor when you applied for a passport?
  • Were you required to get a passport by the Canadian government?
  • Were you the one who applied for a passport, or did someone else do it without your instruction?
• Intent:
  • Were you aware of the meaning of a passport or a return trip under international law?
  • Were your properly advised about cessation by your former counsel?
  • Did you obtain refugee protection before 2012, when cessation was extended to affect Permanent Resident?
  • If you made a return trip, did you make efforts to protect yourself without relying on the government?
• Success:
  • Did you actually receive a usable passport?
  • If you made a return trip, were there any threats or risks you faced from your persecutors as a result?

If your citizenship or sponsorship applications have been put on hold, you also can challenge that hold at the Federal Court. However, this tactic has had mixed results, and the current case law on this point makes this strategy a challenge. The law surrounding this matter is still developing.

Additional Notes

Refugee protection can also be “vacated” if the government finds you obtained it by “directly or indirectly misrepresenting or withholding material facts relating to a relevant matter”.

Citizenship cannot be lost because of cessation. However, it can be revoked if the government thinks you obtained your citizenship by lying or withholding important information. 

The post Cessation and Reavailment: Could I Lose My Refugee Protection, and My Permanent Residence Too? first appeared on Bellissimo Law Group.

For more information on Express Entry, please click here.

If you would like to discuss your eligibility with a member from our legal team, please click here

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To be eligible for an open work permit under the pilot, you must be living in Canada and be sponsored under the spouse or common-law partner in Canada class by your spouse or partner. You must have valid temporary resident status (as a visitor, student or worker) and live at the same address as your sponsor.

Extension of this pilot project is a recognition that families’ integration outcomes are improved when applicants are able to work, provide for their families and contribute to the Canadian economy while waiting for their applications for permanent residence to be processed.

If you are submitting a new application, you may submit an application for work permit together with the sponsorship application, along with an application for permanent residence.

If you have already submitted an application for permanent residence but have not yet applied for an open work permit, you can submit application for work permit separately, along with appropriate fees.

If you were provided with a work permit under the initial pilot, you must apply for a work permit extension before your status in Canada lapses.

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• IRCC “will assess whether a caregiver meets permanent residency requirements before they get to work in Canada.”
• “…the only criteria that an in-home caregiver will have left to meet when they get to Canada, is that they have a two-year work experience requirement.”
• “These pilots will also provide caregivers with the flexibility to change employers when they need to do that.”

Finally, the Minister recently announced an “Interim Pathway for Caregivers” that will open shortly for only three months – from 4 March 2019 until 4 June 2019. Its aim is to provide a pathway for certain care workers who ceased to be eligible for permanent residence following the introduction of the “Caring for Children” and “Caring for People with High Medical Needs” pilot programs on 30 November 2014. To qualify for this new pathway, care workers must have:

• a valid work permit or be awaiting a decision on an application to extend a work permit or restore your status as a worker;
• at least 12 months of full time work experience since 20 November 2014 as a home child care provider (NOC 4411) and/or home support worker (NOC 4412);
• taken an IRCC-approved language test and scored at least CLB 5 in English or NLCL 5 in French in all language abilities; and
• a Canadian secondary school diploma or its equivalent (an assessment of foreign credentials by an IRCC-designated organization is required).

Applicants must also intend to reside in a province other than Quebec and cannot be inadmissible to Canada.[3] For more information on the Interim Pathway, please contact us.

Sources

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Some of the changes included:

1. Doubling the number of applications allowed for parents and grandparents to 10,000 each year.
2. Restoring the maximum age for dependents to 22 from 19, to allow more Canadians to bring their children to Canada.
3. Restored spouses immigrating to Canada receiving immediate permanent residency and repealing the then two-year waiting period.
4. Work permit pilot project for eligible in Canada spousal applicants.
5. One-year processing times for spousal and common law sponsorship applications.
6. Effective June 6th 2017 15 points additional points were awarded for candidates with Canadian citizen or permanent resident siblings in Canada under the Express Entry system.
7. Additional funding for family class processing.
8. Removal of distinctions between in-Canada and Family Class sponsorship application forms.

Given the above there is little question that family reunification has been prioritized but as we enter an election year some of the familiar refrains will likely reappear including:

1. Reducing the numbers of admissions in the family class was seen as a way to alleviate some pressure on our already burdened system and prioritize economic classes.
2. Parents and grandparents immigrating to Canada are predominately elderly and will not assume employment in Canada and present with excessive medical costs.
3. Canada long did away with the inclusion of siblings with a few exceptions in the family class for example, because selection was based primarily on relation rather than on potential economic benefit. More emphasis on economic categories has benefited Canada and this could not have been accomplished through family class migration.

What did not change though, is that there remains no direct sponsorship of brothers and sisters. Those who advocate in favour of an expanded rather than limited family class especially as it relates to parents and grandparents argue the financial, social and emotional support that family members provide is vital to the sponsor’s ability to integrate successfully into Canadian society. Elderly relatives or children who need to be cared for would benefit by this care coming from a relative as opposed to a social or private service, and this would result in less of a burden on our stretched social resources and services.

In my view and I have advocated for this change for a number of years, is that we must continue to closely and carefully study the social as well as economic fusion and functionality across all categories. In that the family class need not only be thought of as a non-economic category and economic migration as a category that does not impact our nation building.

Family reunification has always been one of Canada’s objectives for immigration, especially since family reunification is seen as a “factor in promoting newcomer integration” and long-term settlement. In an immigration-friendly country like Canada we are increasing the number of immigrants entering into the country yearly so does it make sense to restrict the sponsorship of siblings, which, after all, are considered members of an immediate, and not extended, family?

Prior to the early 90’s, siblings were able to be directly sponsored under the family class. The Immigration Act of 1985 and the 1978 Regulations allowed for a much broader definition of admissible family members under the family class, which included siblings and most other relatives. This changed even though the family reunification objective under the law did not. The ultimate goal of such initiatives is to test and deliver an immigration program that has been carefully defined and debated. So, the Liberals have gone a long way in restoring family reunification and restoring siblings to a more prominent role in the immigration landscape should be next. Happy 2019 everyone!

(Sources)

The post Liberals Unveiled a New Plan for Immigration Focused on Family Reunification, Middle Class Growth in 2015 – How Is It Working in 2019? first appeared on Bellissimo Law Group.

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In order to accommodate the expected increase in demand in Europe, the Middle East and Africa, new Visa Application Centres (VACs) are being opened in 2018, with more planned for 2019:

• Kigali, Rwanda (September 2018);
• Stockholm, Sweden (September 2018);
• Tel Aviv, Israel (September 2018);
• Athens, Greece (November 2018);
• Berlin, Germany (November 2018);
• Lyon, France (November 2018);
• Vienna, Austria (November 2018);
• Antananarivo, Madagascar (December 2018);
• Cape Town, South Africa (December 2018).

Visa Application Centres (VACs) are not operated by the Government of Canada. They are operated by private owned companies which the government contracts with to provide administrative services in various countries around the world. This is more efficient as the government does not have expertise in operating in different jurisdictions.

Applicants who need to provide biometrics between now and the time that the VACs listed above become operational can go to certain Canadian embassies in Europe. Applicants from Sweden and neighbouring countries will be able to provide biometrics at the Embassy of Canada to Sweden in Stockholm from 31 July to September 2018. The Canadian embassies in Athens, Greece; Berlin, Germany; and Vienna, Austria will serve applicants from Greece, Germany, Austria and neighbouring countries. Finally, applicants from France and neighbouring countries will be able provide biometrics at a commercially leased space in Lyon, France from 31 July to November 2018. It is crucial to note that these locations will only collect biometrics; applications will not be accepted.

For more information, please click here.

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When the program opens, the first step is to secure your spot by registering and creating a profile in OINP e-Filing Portal, after which you will have 14 calendar days to submit your application. The application fee is $1,500.

To be eligible to apply, you must meet the following criteria:

• Completed the requirements necessary to obtain a Master’s degree that is at least one academic year in length or PhD degree that is at least two years in length if pursued on a full-time basis and from an eligible Ontario institution;
• Meet a minimum of Canadian Language Benchmark of Level 7 or above in English or French;
• Demonstrate that you have resided in Ontario for at least one year in the last two years before the application submission date, and intend to continue to reside in Ontario;
• Demonstrate that you have a minimum level of savings or income to support you and your family members;
• At the time of application must be residing in Ontario with legal status or residing outside of Canada. You will not qualify if you reside in Canada but outside of Ontario;
• You must apply within two years of completing the requirements necessary to obtain your Master’s degree.

Once the applicant receives nomination from Ontario, he/she must apply to IRCC for permanent residence within 6 months of being nominated by OINP and include copies of the Letter of Nomination and the OINP Confirmation of Nomination document. Note, however, that nomination by OINP does not guarantee that your application for permanent residence will be approved by IRCC.

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