Posted by: Areesha Zubair
Jennifer Wood, Leah
Simeone and I recently gave a presentation on Immigration and Family Law,
focusing on issues of abuse and exploitation. Below is an overview of the
immigration law aspect of the presentation.
Migrating to Canada has plenty of rewards, but doesn’t come
easy. From the selection process to settlement, each step comes with a set of
challenges. There is a growing number of
services
to assist new comers in this regard, but it is up to the individual to reach
out. For someone new to Canada, its language, laws and institutions, speaking
out about abuse and exploitation can become their toughest challenge. For
example, a Canadian may be oblivious to his foreign partner’s eagerness to
marry him for immigration purposes; a recently sponsored spouse may be afraid
of leaving her abusive husband, for fear of being deported; or a foreign worker
may remain silent about her/his exploitative work conditions out of fear of
losing her/his job. While there are regulations in place to deal with these
situations, the challenge is to get the information out to the right people at
the right time and remove any fear of immigration repercussions for speaking
out.
Spousal sponsorship,
fraud and abuse
In 2009, around 17% of permanent residents (PR) entered
Canada under the spouse, common-law or conjugal partner category.
[i]
If we include all dependents, including children, who obtained PR under all of
the immigration categories, that number increases to 54.3%.
[ii]
This figure is partly due to the less onerous requirements imposed on family
members, and reflects the
Immigration and
Refugee Protection Act’s
[iii]
stated objective of family reunification. It also shows the distance we’ve
traveled from the draconian Chinese head tax.
At the same time, the federal government has expressed
concern
about programs like spousal sponsorship making the immigration system seem
too lenient and thus vulnerable to exploitation. Specifically, their concern is
that persons who do not qualify under any other program can (and do) marry a
Canadian to apply under the less onerous spousal category, thereby entering
Canada through the “back door”. The law already requires that a marriage,
common-law or conjugal relationship be “genuine”, and not entered into primarily
for immigration purposes. However it can be difficult for an immigration
officer (or an unsuspecting Canadian sponsor) to differentiate between a
fraudulent and a genuine relationship.
To crack down on marriage frauds and challenge the image of a
lenient Canadian immigration system, the government recently introduced the following
regulatory changes: 1) a sponsored spouse or partner
are now required to live with their sponsor for 2 years from the day they
receive their PR status, or else they may lose that status and; 2) a sponsored
spouse or partner can no longer sponsor another spouse or partner for at least 5
years after receiving their PR status.
While the changes may help the government achieve its policy
objective, they can also leave a victim of domestic abuse more vulnerable,
particularly when they’re new to a country. For example, a spouse who moves to
Canada to live with her sponsor for the first time may find herself in an
abusive relationship, something that may come as a complete shock. While
dealing with the emotional trauma, the sponsor may further intimidate the
spouse based on her immigration status, claiming to have her deported by
leaving her. The psychological, social and cultural challenges of domestic
violence are already well documents. The conditional PR further marginalizes
sponsored spouses, based on their immigration status, and can make it more
difficult for them to speak out.
In recognition of this potential injustice, the regulations
provide an exception for spouses who leave their sponsors within 2 years due to
abuse (physical, sexual, psychological or financial) or intimidation. Thus in
the above example, the sponsored spouse would not have to worry about her PR
being revoked, if she can produce evidence of the abuse or intimidation that
she faced at home. Again, this is an evidentiary burden unfairly placed on the
victim of abuse. To overcome this, spouses facing domestic violence are
encouraged to reach out to
victims’
services, a counsellor, a health care provider or a similar professional,
so that they can verify the situation at home and provide supporting
documentary evidence, such as consultation notes or a psychiatric assessment.
For further clarification, the conditional PR does not apply
to a spouse, common law or conjugal partner who enters Canada as an
accompanying family member, or a dependent, of a principal applicant under any
category. For example, a person who comes to Canada as the spouse of a
principal applicant, who is accepted under the economic class, does not have a
condition on their PR status.
Temporary Foreign
Workers
The temporary foreign worker program (TFWP) has also been at
the centre of recent changes, in response to reports of misuse of the program. In
short, TFWP allows Canadian employers to hire foreign workers for positions
that they cannot be filled with Canadian workers. While the arrangement is temporary,
some temporary workers may be eligible to apply for a PR status, depending on
the program they applied under, such as the Live-in Caregiver Program.
The program is quite popular amongst employers and foreign
workers alike; the rate of admissions have doubled in size in the last 10 years.
[iv]
At the same time, reports continue to surface about the
exploitation
of foreign workers. Recently, the federal and Ontario governments implemented changes in
response to these concerns, and Ontario has proposed its own reforms. The federal
regulations mainly target the conduct of employers and serve the interests of the Canadian labour market more so that foreign workers individually. However, changes proposed by the
Ontario
Minister of Labour are aimed directly at protecting temporary foreign workers, by
banning recruitment fees or the collection of personal documents by employers
and recruiters, among other changes. These changes are in addition to
existing regulations that serve to protect foreign workers’ rights, such as
minimum wage requirements.
However, as with spousal sponsorships, the real challenge is
to enforce these regulations. Unless an employer is flagged as having violated
the law or regulations, it is difficult to hold them accountable. Thus, it comes
down to individual employees coming out when their wages are being held back, they’ve
had to pay illegal recruitment fees, or to perform dangerous tasks. This is no
easy task, as the fear of getting fired or being deported from Canada can intimidate
many foreign workers to remain silent. However, information on foreign workers
rights can help ease these fears and empower workers to reach out for help.
All employers hiring temporary foreign workers must satisfy certain
minimum requirements
for wages and work conditions, which are to be specified in the employment
contract. For example, employers must pay foreign employees a prevailing wage
for the occupation, which may be higher than the provincial minimum wage. This
is to ensure that the program is not used to pay below the prevailing wage,
thus exploiting foreign workers. If a foreign worker believes that their
employer is violating the employment contract or the provincial employment
standards, he/she may have a claim and should contact their provincial/territorial
labour ministry (in Ontario, call 416-326-7160), and/or the human rights
tribunal (in Ontario, call the Human Rights Legal Support Centre at
1-866-625-5179).
Foreign workers can also apply to change their employers who
they are not happy with, without being penalized or removed from Canada. For
live-in caregivers, their LCP and LMO applications can be expedited to quickly
process their transition to a new employer. If the Ontario legislation, Stronger Workplaces for a Stronger Economy,
2013, passes, then the cap on recovery of owed wages will also be
eliminated, making it worth employees’ while to take action.
Standing up to abuse, intimidation or exploitation can be
difficult for anyone, regardless of their immigration status in Canada, level
of education, employment history, or knowledge of support groups. Sometimes, an
abuse victim who finally reaches out may not be able to connect with the right
person or get accurate information, which can be further discouraging. That is
why it is important for professionals to treat each client facing this
situation with sensitivity and work through the challenges as a team.
This presentation is for information purposes only and
is not intended to be legal advice. Full and complete legal advice can only be
given by a lawyer who has detailed information about your individual
circumstances. If you would like legal advice on your matter, please contact
Wood Gold LLP at 904.451.4646 to book your consultation.
[i] Citizenship and Immigration Canada
(CIC), “Facts and figures 2009- Immigration overview: Permanent and temporary
residents”, retrieved January 19, 2014 at: http://www.cic.gc.ca/english/resources/statistics/facts2009/permanent/02.asp.
[iii] Immigration and Refugee Protection Act,
S.C. 2001 c. 27.
[iv] CIC,
“Facts and figures 2012- Immigration overview: Permanent and temporary
residents”, retrieved January 19, 2014 at: http://www.cic.gc.ca/english/resources/statistics/facts2012/temporary/01.asp.
