Permanent Residence Application Process (18:V)

Immigrant applicants can be broken down into three general categories (these categories are extremely broad): (i.) Economic Class applicants, (ii.) Family Class applicants, and (iii.) humanitarian or refugee applicants. There are several subclasses or subcategories within each of these general headings. All applicants and their dependent family members are subject to medical, criminal, and security checks. These are referred to as “statutory requirements” in the legislation.

Amendments to the Act that came into force June 18th, 2008 give the Minister authority to establish an order of priority for incoming applications (s 87.3), and relieve CIC from the obligation to process all applications to a full decision (s 11). For example, priority processing amongst Family Class applications is given to spouses and dependent children; these are commenced immediately upon receipt. See the Operational Manuals for details.

NOTE: It is important to inform IRCC about any changes in the application, such as a birth or adoption of a child, marriage or divorce, death of an applicant or dependent.

A. Economic Class Applicants

Foreign nationals who apply under one of the economic classes must prove that they will become financially established in Canada. This general requirement is reflected through a series of criteria. There are three general sub-classes within the economic class: the skilled worker class, investor class and the self-employed class. Please note that there are Provincial Nominee Programs in operation throughout Canada, including British Columbia. Under these programs, the province nominates an immigrant for Federal screening (see s. 87 of the IRP Regulations). Nomination by a province provides strong evidence of an applicant’s ability to become economically established in Canada as required by IRPA s. 12(2). A detailed discussion of these programs is beyond the scope of this Manual.

NOTE: IRCC implemented an online screening and selection process for persons who wish to be considered for permanent resident status in Canada under the Economic Classes of Federal Skilled Worker, Canadian Experience Class, and Federal Skilled Trades Class. This process is called Express Entry (“EE”): http://www.cic.gc.ca/english/immigrate/express/express-entry.asp

EE is a system whereby applicants create an online profile (there is no paper process for creating an EE profile) that assigns points according to “Human Capital Factors” and “Skill Transferability Factors” under a “Comprehensive Ranking System”. An applicant can obtain a maximum score of 600 points based on these factors in combination, and a possible extra 600 points by obtaining a special EE-related Provincial Nomination (see Provincial Nominee Programs) or an LMIA (see Workers). These factors and selection criteria were established through Ministerial Instructions, and can be reviewed in detail on the IRCC website (http://www.cic.gc.ca/english/department/mi/express-entry.asp).

Once the person has created an active EE profile, they may be selected for an Invitation to Apply (“ITA”) for permanent resident status under one of the three aforementioned Classes of permanent residence. They will be issued an ITA if their profile score equals or exceeds the score chosen by IRCC at a particular selection pass. Consequently, potential immigrants do not know if they are able to apply for permanent resident status until they receive an ITA.

Upon receiving an ITA, the applicant has 60 days to submit the application for permanent resident status. The application is made entirely online, without written forms, and requires scans of all relevant documents. The applicant will not know exactly what documents are required until they actually receive the ITA, and the documents required may change according to other evidence provided as part of the application. The online submission is often referred to as the “e-APR”.

Once the e-APR is submitted, they will be contacted by IRCC with instructions on where to send original documents that may be required (such as original police clearances).

1. Federal Skilled Worker Class (Express Entry Required)

The Federal Skilled Worker Program (“FSW”) selects immigrants based on their ability to succeed economically in Canada. After meeting the threshold criteria set out in s. 75 of the IRP Regulations, foreign nationals who apply under the skilled worker class are assessed on a point system designed to evaluate their ability to become successfully established in Canada. Applicants are given points on the following criteria: education, language, experience, age, adaptability, and arranged employment. The point structure is set out in the IRP Regulations in ss. 78 to 83. For information on how points are allocated, refer to www.cic.gc.ca/english/immigrate/skilled/apply-factors.asp.

For complete information of the Federal Skilled Worker Program, please refer to: http://www.cic.gc.ca/english/immigrate/skilled/index.asp

2. Canadian Experience Class (Express Entry Required)

This class is designed to recognize the value of having experience in Canada, and the positive impact this experience is likely to have on a newcomer’s prospects of success. Applicants under this class must be able to demonstrate two things:

1) At least one year of full time authorized skilled work experience in Canada. The type of employment must fall under type A, B, or O of the National Occupation Classification system (i.e. managerial, professional, or technical occupations). “Full time” work in this context means 30 or more hours of work per week, and can be made up of work in more than one skilled job, but any hours beyond 30 during that week are surplus and are not counted. 2) Depending upon the dominant type of skilled work they are claiming, the applicant must show a minimum proficiency in either English or French, through providing a test result report from the TEF, IELTS or CELPIP testing systems.

See the IRCC Program Delivery Instructions for the Canadian Experience Class (http://www.cic.gc.ca/english/resources/tools/perm/econ/cec/index-post.asp) and the IRCC website (http://www.cic.gc.ca/english/immigrate/cec/apply-who.asp).

3.Federal Skilled Trades Class (Express Entry Required)

This class is meant to facilitate the permanent residence of skilled tradespersons in Canada. In order to be eligible for the Federal Skilled Trades Program (“FSTP”), an applicant must

a) Plan to live outside the province of Quebec, b) Meet the required levels in English or French for each language ability (CLB 5 for speaking, and listening, and CLB 4 for reading, writing), c) Have at least two years of full-time (30 hours per week) work experience (or an equal amount of part-time work experience) in a skilled trade within the five years before applying, d) Meet the job requirements for their predominant skilled trade as set out in the National Occupational Classification (“NOC”), (except for needing a certificate of qualification), and a. Have an offer of full-time employment for a total period of at least one year (up to 2 employers can commit to offer employment, but all offers of employment must be associated with an LMIA). or b. A certificate of qualification in their predominant skilled trade issued by a Canadian provincial or territorial authority (such as a Red Seal).

Applicants who are applying from outside of Canada must also show that they have sufficient settlement finds for their family upon arrival in Canada. See http://www.cic.gc.ca/english/immigrate/trades/apply-who.asp

4. Provincial Nominee Programs

All provinces, including British Columbia, have their own selection systems and criteria for new immigrants. Applicants who apply under these classes must still comply with the statutory requirements under the federal legislation (see s. 87 of the IRP Regulations). Section 87(3) permits the federal immigration officer to substitute his/her own evaluation of the applicant’s ability to become economically established in Canada for that of the nominating province. B.C.’s Provincial Nominee Program (“BCPNP”) has its own categories, which can be different from the federal requirements.

After you are nominated for permanent residence by the BC PNP, both you and your employer must tell the BC PNP about any employment changes by emailing PNPPostNom@gov.bc.ca. This includes a promotion, lay-off, termination or a potential new job with a new employer. Please note that failing to inform BC PNP of a change in your employment status could lead to the withdrawal of your nomination. It could also lead to questions from IRCC when they process your application. All post-nomination requests, including requests for work permit support letters, change of employers, and re-nominations, must now be emailed to PNPPostNom@gov.bc.ca.

On 01 February 2017, the BC Provincial Immigration Programs Act and Regulations came into effect. This legislation provides a framework for the operation of the BCPNP, including direction concerning what factors can serve as the basis for a nomination, how fees are set, provides investigatory powers to the Director of the PNP, and allows for an appeal process for refused nominations. Clinicians assisting with PNP applications should familiarize themselves with the “interpretive guidelines” provided on the BCPNP site: https://www.welcomebc.ca/Immigrate-to-B-C/B-C-Provincial-Nominee-Program/Documents.

Where a BCPNP applicant is refused their application for a nomination certificate, the ability to appeal the decision is provided within their BCPNP online profile, and so it is important for the applicant to log into their profile as soon as possible upon receiving a refusal. They must pay a fee of $200, and provide submissions and evidence as part of the appeal process.

NOTE: A BCPNP nomination can be cancelled after being issued, and this cancellation does not receive consideration under the appeal process. Instead the nominee is given basic procedural fairness protections in the form of an opportunity to be heard before the nomination is cancelled. There is no appeal to the cancellation decision and so it is important to make the best case possible at that time.

The BCPNP program is currently using an online registration and selection process similar to that of Express Entry (see the NOTE in Section V. A. “Economic Class Applicants”). Enrolment in the program is free. Once an applicant has enrolled in the program they wait to be issued an invitation to apply for a provincial nomination. No time estimate for waiting periods can be provided as they vary and depend on the strength of the application. Consolidated guides with all the details necessary to assist with a BCPNP application can be found under: http://www.welcombc.ca/Immigrate-to-B-C/B-C-Provincial-Nominee-Program/Documents. For more information about BC’s programs generally, see: http://www.welcomebc.ca/pnp.

5. Self-Employed Persons Class

This category is designed for individuals who have the intention and ability to be self-employed in Canada in cultural activities, athletics, or in managing a farm. While it is not explicitly stated on the IRCC website, applicants with exceptional skills, such as Olympic athletes, world-renowned artists and/or musicians, etc. are more likely to be successful under this class. It is not necessary that the applicant actually be self-employed before coming to Canada, so long as he or she has participated at a “world-class” level in their field of endeavor for at least 2 years. However, persons not actually participating at a “world-class” level may still be successful if they can demonstrate they were self-employed in Category 5 of the Canadian National Occupational Classification (“NOC”) (occupations in art, culture, recreation, and sport) for at least 2 years before coming to Canada, and that they are likely to become economically established in Canada.

Please refer to IRP Regulations Part 6 Division 2 (ss. 100 and 101), and to the IRCC website (http://www.cic.gc.ca/english/immigrate/business/self-employed/apply-who.asp).

6. Investor Class

The Investor Program and the Federal Entrepreneur Program has been closed since July 1st 2012.

IRCC has a Start-Up Visa Program under the Business Immigration Program, which is geared at attracting experienced business people to Canada who will support the development of a strong and prosperous Canadian economy. Individuals are advised to check the IRCC website for the latest information.

B. Family Class Applicants

Foreign nationals can be “sponsored” under the Family Class by a Canadian citizen or permanent resident. See the IRP Regulations, Part 7.

NOTE: Sponsored foreign nationals must declare any of their non-accompanying family members (i.e. dependent children, spouses, and parents) in their initial application if they wish, at some point, to sponsor these individuals themselves. Under IRP Regulation 117(9)(d), if a foreign national fails to declare a non-accompanying family member in their application for permanent residence, that family member cannot EVER be sponsored by the foreign national (except in rare circumstances).

1. Sponsors

a) Eligibility Requirements

The sponsor must meet certain eligibility requirements. For example, the sponsor must be 18 years old, must reside primarily in Canada, must not be bankrupt or receiving provincial welfare benefits, must not be in default of a previous immigration undertaking, etc. (see ss 130 - 137 of the IRP Regulations for the requirements).

The requirement to reside in Canada only applies to permanent resident applications. Canadian citizen sponsors may reside outside of Canada when they submit the sponsorship, but must demonstrate their intention to return to Canada when the sponsored person becomes a permanent resident (see IRP Regulations 130(2)).

In some circumstances, the sponsor must prove he or she earns a specific amount of money, depending on his or her family size and the city he or she is living in. The definition of “minimum necessary income” can be found in s.2 of the IRP Regulations. This is also known as the “low-income cut-off” figure (“LICO”). Generally speaking, the LICO does not apply to sponsors who are just sponsoring their spouse or children (s 133(4)).

B. Family Class Applicants

Foreign nationals can be “sponsored” under the Family Class by a Canadian citizen or permanent resident. See the IRP Regulations, Part 7.

NOTE:

Foreign nationals must declare any of their non accompanying family members (i.e. dependent children, spouses, and parents) in their initial application if they wish, at some point to sponsor these individuals themselves. An individual generally cannot sponsor a family member if if they failed to declare that family member in their application for permanent residence. However, a pilot project has been launched from September 9, 2019 to September 9, 2021 which will allow certain newcomers who failed to declare their family members to sponsor undeclared immediate family members. Consult the IRCC website for the latest details on this pilot project, which presently applies only to individuals who became permanent residents under the Convention refugee and Family Classes and who are applying to sponsor undeclared family members.

1. Sponsors

a) Eligibility Requirements

The sponsor must meet certain eligibility requirements. For example, the sponsor must be at least 18 years old, must reside primarily in Canada, must not be bankrupt or receiving provincial welfare benefits, must not be in default of a previous immigration undertaking, etc. (see ss. 130 - 137 of the IRP Regulations for the requirements).

The requirement to reside in Canada only applies to permanent resident applications. Canadian citizen sponsors may reside outside of Canada when they submit the sponsorship, but must demonstrate their intention to return to Canada when the sponsored person becomes a permanent resident (see IRP Regulations 130(2)).

In some circumstances, the sponsor must prove he or she earns a specific amount of money, depending on his or her family size and the city he or she is living in. The definition of “minimum necessary income” can be found in s.2 of the IRP Regulations. This is also known as the “low-income cut-off” figure (“LICO”). Generally speaking, the LICO does not apply to sponsors who are just sponsoring their spouse or children (IRP Regulations s. 133(4)).

2. Members of the Family Class

The family class is the group of family members that can be sponsored to immigrate to Canada. Family members who are not included in IRP Regulation s. 117(1) cannot be sponsored. Below is a list of members of the family class: a) Spouse, common-law partner or conjugal partner, b) Dependent child, c) Parents or grandparents, d) Brother, sister, niece, nephew, or grandchild who is an orphaned child under 22 and is not a spouse or common-law partner, or e) Relative of any age if the sponsor does not have an aunt, uncle, or family member from the list above who he or she could sponsor or who is already a Canadian citizen, registered Indian, or permanent resident. This is known as the “lonely Canadian” provision. A dependent child is defined as a child, both biological and adopted, of the sponsor or sponsor’s spouse who is below the age of 22. Exceptions can be made for children who are above the age of 22 but are substantially dependent on their parent due to a mental or physical condition (IRPA s. 1).

When the sponsor is also applying for permanent residency as a Principal Applicant, the sponsor’s spouse, common-law partner, or conjugal partner, and the sponsor’s dependent children are included on the sponsor’s permanent residency application as accompanying or non-accompanying family members. However, a Principal Applicant may be rendered inadmissible if the family members included on his or her application are inadmissible.

NOTE: There is a new requirement that sponsors meet an increased income level for sponsoring parents or grandparents.

NOTE: A major issue that arises in many spousal sponsorship applications is whether the marriage is genuine. Under IRP Regulations, s. 4, a foreign national will not be considered a spouse if the marriage is not genuine or was entered into primarily for the purposes of acquiring any status or privilege under the Act. Applicants must prove that their marriage is valid, both in Canada, and in the country in which it took place (IRP Regulations, s. 2). While an arranged marriage is not inherently less credible, prior acquaintance to the marriage can pose some evidentiary challenges.

3. Procedure

To sponsor a family class member, a potential sponsor must fill out an application to sponsor, and the relative being sponsored must fill out an application for permanent residence. The sponsor must also provide a signed undertaking with the federal government that he or she will support the prospective immigrant and accompanying dependents, if necessary, for three years if the applicant is a spouse or conjugal/common-law partner, or ten years for most other categories of applicants (see IRP Regulations, Part 7, Division 3). If an application for sponsorship under the Family Class is refused, the sponsor may (in most cases) appeal the refusal to the Immigration Appeal Division.

C. “In Canada” Spouses, Common-law Partners, and their dependents (Spouse or Common-Law Partner in Canada Class)

The statutory “in-Canada” family class sponsorship provisions are outlined under ss. 123 - 125 of the IRP Regulations. The requirements from the sponsor are generally the same, but the Class of persons able to be sponsored through this route is limited to spouses, common-law partners, and the children or grandchildren of those persons. The entire application is processed inside Canada, and the applicants are generally landed at an IRCC office in Canada. It is important to note that, aside from the question of the genuineness of the relationship, in-Canada applications are only successful if the sponsored person resides in Canada with the sponsor.

Out of status spouses in Canada – Public Policy

A Canadian citizen or permanent resident can sponsor a spouse regardless of the spouse’s status in Canada under a special public policy directive relating to out-of-status applicants. After the sponsored spouse (applicant) receives first stage approval of their application (that is, approval in principle), they are entitled to an Open Work Permit under IRP Regulations s. 207. This means the applicant is entitled to work in Canada in any capacity; in other words, unlike most temporary foreign workers, this work permit is not tied to a particular form of employment with a particular employer.

NOTE: An applicant will generally be granted a sixty (60) day period in which IRCC should determine whether the relationship is genuine if the applicant is out of status and there is a removal order. If it is determined that the relationship is genuine then the removal order will be stayed.

It is important to understand that foreign nationals without status can apply under this class only if the foreign national:

a) Has overstayed a visa, visitor record, work permit or study permit, b) Has worked or studied in Canada without authorization under the IRPA, c) Has entered Canada without the required visa or other document required under the IRP Regulations and/or, d) Has entered Canada without a valid passport or travel document (provided valid documents are acquired by the time Immigration, Refugees and Citizenship Canada seeks to grant permanent resident status).

Consequently, foreign nationals who are inadmissible to Canada, entered Canada without permission after having been deported, and foreign nationals who have misrepresented themselves are not permitted to apply under this class. Always look to the most recent version of this policy. (See Appendix H of the Operational Manual, “IP 8 — Spouse or Common-law Partner in Canada”.)

NOTE: Under “in-Canada” classes, there is no appeal to the Immigration Appeal Division of a failed sponsorship. The only redress is to file a new application, file an overseas family class application, or if possible, to file for judicial review of the refusal.

NOTE: IRCC will issue open work permits to certain spouse or common-law partner in Canada class applicants at the initial stage of processing. For more information, see:

D. Caregiver Program

The federal government has announced two pilot programs that will help caregivers who came to Canada to apply for permanent residency. On June 18, 2019, Caring for Children and Caring for People with High Medical Needs pilot was replaced with a pilot program for Home Child Care Provider and Home Support Worker. There is an Interim Pathway for Caregivers which is available between July 8 and October 8, 2019 to applicants who have at least one year of work experience as a home child care provider or home support worker and meet minimum language and education requirements.

Under the new Home Child Care Provider Pilot and Home Support Worker Pilot, Caregivers will receive a work permit if they have a job offer in Canada and meet standard criteria for economic immigration programs. No LMIA is required. A caregiver can apply for permanent residency after two years of Canadian work experience.

These new pilot programs will also benefit from:

• Occupation specific work permits rather than employer specific permits. This will allow a caregiver to change employers if needed. • The caregivers’ immediate family members will be eligible for open work permits and/or study permits.

Please see Chapter 6: Employment Law for further information on caregivers. You may also contact the Migrant Workers Centre for more information:

Migrant Worker’s Centre (formerly WCDWA) 302-119 W Pender Street Telephone: (604) 669-4482 Vancouver, B.C. V6B 1S5 Fax: (604) 669-6456 Website: www.wcdwa.ca E-mail: info@wcdwa.ca

E. Humanitarian and Compassionate Applications

Section A25(1) of the Immigration and Refugee Protection Act (IRPA) allows foreign nationals who are inadmissible or who are ineligible to apply in an immigration class, to apply for permanent residence, or for an exemption from a requirement of the Act, based on humanitarian and compassionate (H&C) considerations.

Humanitarian and compassionate (“H&C”) applications are generally applied for from within Canada under s 25(1) of the IRPA, but they can also be applied for from abroad.

This is a highly discretionary category, and generally only exceptional circumstances will result in an H&C exception. The Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61 established a broad and comprehensive assessment of all the applicants’ circumstances in an H&C application. The former test, which considers whether the foreign national would face “undue, undeserved, or disproportionate hardship” if they were forced to return to their country of habitual residence or citizenship, should be only treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of "unusual and undeserved or disproportionate hardship" in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

Under the previous test the primary concern is “the best interest of any child” affected by the decision, but an immigration officer will also consider: level of establishment in Canada, family ties in Canada, ties to community, and any other relevant considerations. Review the Program Delivery Instructions on H&C applications (http://www.cic.gc.ca/english/resources/manuals/) for more information.

NOTE: In 2010, s. 25 of the IRPA was amended, such that “... the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin. Subsection 25(1.3) applies only to H&C applications made in Canada.Personal risks faced by the claimant that are relevant to a Convention refugee determination can no longer be considered in deciding an H&C application. However, “hardship” must still be considered—see IRPA s. 25(1.3). Thus, discrimination in the foreign national’s country of origin that does not constitute persecution may still properly be considered by the Minister in determining whether the foreign national would experience undue, undeserved or disproportionate hardship. Review IP5 for guidance on how officers evaluate discrimination.

Note: Refugee claimants are prohibited from having concurrent H&C applications. Those who have had their claim denied will be subject to a 1-year bar on submission of an H&C application. There are some exceptions to the bar. The bar does not apply if: • you have children under 18 who would be adversely affected if you were removed from Canada, or • you have proof that you or one of your dependents suffers from a life-threatening medical condition that cannot be treated in your home country.

Unlike applications made under a Pre-Removal Risk Assessment, a person who applies under H&C considerations may be removed from Canada before the decision on the application is made. F. Convention Refugees (the Process)

The Refugee Protection Division (“RPD”) assesses foreign nationals who apply for Convention refugee protection or “protected persons” status.

The definition of a Convention refugee is found at s 96 of the IRPA. Generally, the person must: a) Have a well-founded fear of persecution, b) The fear must be objective and subjective, c) The fear must be linked to a Convention ground (i.e. race, nationality, religion, political opinion or membership in a particular social group), d) There must be no Internal Flight Alternative, i.e. a place in the country of feared persecution where the person can reasonably live safely, e) There must be no state involvement or state complicity, and f) The state must be unable or unwilling to protect.

If a person has more than one place of citizenship, they must have exhausted options in both of their countries of citizenship (see Canada v Ward [1993] 2 SCR 689). This is not an exhaustive list; refer directly to the IRPA, ss. 95 to 111.

The IRB Chairperson has issued special interpretation guidelines for determining Convention refugee claims of women refugees. Individuals should review these “Gender Guidelines” when assisting women refugee claimants. The Gender Guidelines can be found on the IRB’s website, www.irb-cisr.gc.ca, under the heading “Legal and Policy References.”

NOTE: A “person in need of protection” has a different definition, outlined under s 97 of the IRPA. Review the Convention Refugee and Protected Persons classes in the IRPA carefully if dealing with such a case. The Refugee Protection Division has the jurisdiction to consider both ss. 96 and 97 of the IRPA.

Significant changes to the refugee determination process have been implemented over the last several years by the Balanced Refugee Reform Act, SC 2010, c 8 (BRRA), and, the Protecting Canada’s Immigration System Act, SC 2012, c 17.

Key Changes:

● People who make a refugee claim at an office in Canada must submit their completed Basis of Claim form (“BOC”) during their eligibility interview. Those who make a refugee claim at a port of entry must submit their BOC to the IRB no later than 15 days after referral of their claim to the IRB.

● Hearings at the independent Immigration and Refugee Board of Canada (“IRB”) will be conducted by public servant decision-makers rather than people appointed by the Governor in Council (“GIC)

In general, refugee claimants have an initial intake interview with an officer, followed by a hearing with a public servant. Due to the increased volume of claims, the RPD has moved to a “first-in, first out” model where claims are heard in the order they are referred. If the claimant fails, they will have 15 days to make an appeal to the Refugee Appeal Division (“RAD”). Claimants whose claims are decided by the IRB to be “manifestly unfounded” or have “no credible basis,” designated foreign nationals, and those falling under an exception to the Safe Third Country agreement have no right of appeal to RAD but may be able to file for Judicial Review.

Please note that the timelines for BOC, Hearings, Document Disclosure and Postponement Requests are different for Inland claimants and Port of Entry claimants.

Any person midway through the application process should consult the Immigration, Refugees and Citizenship Canada website for the latest information: www.cic.gc.ca.

1. Entry/Initiation

A foreign national generally requests Convention refugee protection at the Port of Entry upon arrival, i.e. at the airport, land border or sea border. However, if a foreign national wishes to make a Convention refugee claim after being admitted into Canada, the person should go to the Immigration, Refugees and Citizenship Office at 1148 Hornby Street, Vancouver, British Columbia and enter a claim for protection. The first step is the eligibility interview.

2. Eligibility

Once a foreign national makes a claim for protection, an immigration officer will interview him or her and determine if the person is eligible to make a claim. There are several classes of ineligible people listed at s. 101 of the IRPA. For example, if a foreign national has previously made a Convention refugee claim in Canada, and the claim was accepted, refused, withdrawn or abandoned, that person is “ineligible” to make another claim. If a foreign national is determined “ineligible,” the process stops.

At the eligibility interview, the interviewing immigration officer will obtain the detailed reasons why the foreign national fears persecution. A foreign national should be prepared to accurately outline the details of his or her account of events leading to the claim for protection.

Important changes to the eligibility rules for refugee claimants were introduced in 2019. Anyone who has made a refugee claim previously in a country with which Canada has an information-sharing agreement (US, UK, Australia, and New Zealand) are now ineligible to make a refugee claim in Canada. Instead, these individuals will receive only a Pre-Removal Risk Assessment (“PRRA”). We recommend that claimants in this situation consult with a lawyer as soon as possible to understand their options.

3. Basis of Claim Form (“BOC”)

Once a foreign national is determined to be eligible to submit a Convention refugee claim, the foreign national will be given a Conditional Departure Order. This is a removal order that only comes into effect if the person loses the claim for protection. The foreign national is now a Convention refugee claimant. The claimant will have 15 days to file the BOC. This is the most important obligation on a Convention refugee claimant, apart from attending their hearing.

Claimants will require help in preparing their BOC. In the BOC, a claimant must outline the precise reason(s) for their well-founded fear of persecution. This includes a narrative outlining the dates, incidents of persecution, why they are afraid, etc. The BOC should include facts that support the claimant’s fear, and that address the requirements set out in the IRPA. For example, the BOC should address why the claimant has no internal flight alternative, how the state is involved or complicit in the persecution, etc. This account of events will form the basis of the request for protection at the hearing.

4. Refugee Hearing

The Convention refugee claimant will be scheduled for an oral hearing to assess their claim. This hearing is not open to the public. The Presiding Member will question the claimant regarding the BOC. The Minister may also intervene in the hearing and a Hearings Officer may question the claimant if they allege the claimant should be excluded from refugee protection under IRPA s. 98 or if they have concerns about the claimant’s credibility.

Note that if the claimant wishes to rely on documents, he or she must file or serve those documents not less than 10 days before the hearing. If the Minister intervenes, they must also be served within the same time frame. If there are documents in other languages, they must be translated (Rule 28).

Claimants may represent themselves at the hearing or be represented by counsel. Representation by counsel is always preferable. Interpreters are provided if required. Claimants may request that a family member or friend be present at the hearing for emotional support.

NOTE: Claimants (and their counsel) must be very familiar with the content of their BOC before the hearing. Claimants must be prepared to elaborate on the details outlined in the BOC. A decision maker may interpret inconsistencies with the facts as stated in the BOC as weakening the claimant’s credibility.

5. Refugee Appeal Division

The Refugee Appeal Division (“RAD”) considers appeals against decisions of the Refugee Protection Division (“RPD”) to allow or reject claims for refugee protection. In most cases there will be no hearing, as the RAD will base its decision on the documents provided by the parties involved and the RPD record. a) Appealing the RPD’s decision to the RAD d For appeals of a decision of the RPD to the RAD, the following information may be helpful:

● There are only 15 days to file a Notice of Appeal after receiving the written reasons for the decision from the RPD, ● After a claimant receives the written reasons from the RPD decision, the claimant has 30 days to file an Appellant's Record,

For a detailed compilation of necessary steps and information for a claimant’s appeal, please refer to the Appellant’s Guide and Kit: http://www.irb-cisr.gc.ca/Eng/RefApp/Pages/RefAppKitTro.aspx b) Responding to the Minister’s Appeal of the RPD’s Decision

The Minister can appeal the RPD’s decision to accept a claimant’s refugee claim subject to the following exceptions:

a) The claimant is a designated foreign national, b) c) The claimant made their claim at a land border with the United States and the claim was referred to the RPD as an exception to the Safe Third Country Agreement, and/or d) The claimant’s claim was referred to the RPD before the relevant provisions of the new system came into force.

When responding to the Minister’s appeal of their RPD decision to the RAD, the following should be considered:

1. A claimant will know the Minister is appealing the RPD decision when the Minister gives the claimant and the RAD a document called a ‘notice of appeal’. The Minister has 15 days after they have received the RPD’s written decision to take this action. 2. The Minister will then give the claimant any supporting documents that they will be submitting as evidence. The Minister has 30 days after receiving the RPD’s written reasons to take this action. 3. After this is done, the claimant will have to submit a “Notice of Intent to Respond” and provide the Minister and the RAD with a copy, no later than 15 days after the claimant receives the supporting document from the Minister.

For a detailed compilation of all necessary components when responding to an appeal, please refer to the Respondent’s Guide: http://www.irb-cisr.gc.ca/Eng/RefApp/Pages/ResIntKitTro.aspx

G. Pre-Removal Risk Assessment (“PRRA”)

A PRRA is a risk assessment application before removal of a foreign national from Canada. With some exceptions and some restrictions (see ss. 112(2) and 112(3) of the IRPA), every person who is being removed from Canada can submit a paper application describing why they would suffer persecution or danger in the country of destination if returned to that country. The risk(s) are assessed under ss. 96 and 97 of the IRPA. However, very few applications succeed under the PRRA process.

NOTE: Under the IRPA those claimants who have a failed or abandoned refugee claim will generally be ineligible to make a PRRA claim for 12 months after the judicial review decision. 1. Process

Once a claimant has received a removal order and has been given notification, he or she has 15 days to apply for a PRRA and another 15 days to make submissions and include documentary evidence. If the person is a failed Convention refugee claimant, the evidence supporting the PRRA must be new or must have not reasonably been available on the date of the hearing; in other words, only “new evidence” is considered.

Once a person has applied for a PRRA, the person cannot be removed from Canada until a decision is made regarding their case. This is called a “stay of removal”.

A person who has been given notice of removal can apply for the PRRA later than the 15-day deadline. However, that person could be removed from Canada before the decision is made (i.e. no stay of removal is issued).

A person who loses the PRRA will be removed. The only redress to a PRRA refusal is to apply for leave and appeal to the Federal Court. The deadline to apply for leave to the Federal Court is 15 days. In such cases, the claimant should contact a lawyer immediately. 2. Status Conferred

If the PRRA is granted, the person will receive the same protection as a Convention refugee. The person will be considered a “protected person” and can apply for permanent resident status from within Canada.

C. “In Canada” Spouses, Common-law Partners, and their dependents (Spouse or Common-Law Partner in Canada Class)

The statutory “in-Canada” family class sponsorship provisions are outlined under ss 123 - 125 of the IRP Regulations. The requirements from the sponsor are generally the same, but the Class of persons able to be sponsored through this route is limited to spouses, common-law partners, and the children or grandchildren of those persons. The entire application is processed inside Canada, and the applicants are generally landed at a CIC office in Canada. It is important to note that, aside from the question of the genuineness of the relationship, in-Canada applications are only successful if the sponsored person resides in Canada with the sponsor.

Out of status spouses in Canada – Public Policy

Prior to February 18, 2005, a Canadian citizen or permanent resident could sponsor a spouse (including married couples, common law couples, and conjugal couples) from within Canada only if the foreign national was “in status” from the date of the application until the application wascomplete; i.e. the spouse seeking permanent residence needed to already possess valid temporary immigration status at the time of application (IRP Regulations s 124(b)). This prevented, for example, failed Convention refugee claimants from marrying a Canadian and being sponsored from within Canada.

Following the introduction a public policy directive (issued under the Minister’s authority to exempt certain applicants from some requirements of the Act on humanitarian or compassionate grounds as per IRPA s 25), as of February 18, 2005, a Canadian citizen or permanent resident can sponsor a spouse regardless of the spouse’s status in Canada; i.e. the s 124(b) requirement is effectively suspended in some cases. After the sponsored spouse (applicant) receives first stage approval of their application (that is, approval in principle), they are entitled to an Open Work Permit under IRP Regulations s 207. This means the applicant is entitled to work in Canada in any capacity; in other words, unlike most temporary foreign workers, this work permit is not tied to a particular form of employment with a particular employer.

This represents a significant change in policy. However, it does not mean that every foreign national in Canada married to a permanent resident or Canadian citizen can apply for permanent resident status from within Canada. Note that this is a policy and not a law, and therefore it is subject to change at any time. Also, foreign nationals without status can apply under this class only if the foreign national:

• a) has overstayed a visa, visitor record, work permit or study permit;
• b) has worked or studied in Canada without authorization under the IRPA;
• c) has entered Canada without the required visa or other document required under the IRP Regulations; and/or,
• d) has entered Canada without a valid passport or travel document (provided valid documents are acquired by the time Citizenship and Immigration Canada seeks to grant permanent resident status).

Consequently foreign nationals who are inadmissible to Canada, entered Canada without permission after having been deported, and foreign nationals who have misrepresented themselves are not permitted to apply under this class. Always look to the most recent version of this policy. (See Appendix H of the Operational Manual, “IP 8 — Spouse or Common-law Partner in Canada”.)

NOTE: Under “in-Canada” classes, there is no appeal to the Immigration Appeal Division of a failed sponsorship. The only redress is to file a new application, file an overseas family class application, or if possible, to file for judicial review of the refusal.

NOTE: As of December 22, 2014, IRCC will issue open work permits to certain spouse or common-law partner in Canada class applicants at the initial stage of processing. For more information, see: http://www.cic.gc.ca/english/department/media/notices/2015-12-11.asp

D. Caregiver Program

As of November 30, 2014, the Caregiver Program (formerly the Live-in Caregiver Program) was changed to eliminate the live-in requirement, and to introduce two pathways to permanent residence: the Caring for Children Pathway, and the Caring for People with High Medical Needs Pathway. The government is now reviewing the Caring for Children and Caring for People with High Medical Needs pilot programs to determine how caregivers will apply for permanent residence after the pilots expire on November 29, 2019. To be eligible for under these programs, applicants must meet the requirements and submit an application for permanent residency before that date.

Those who were already working as live-in caregivers or who had submitted applications through the old program may choose to submit a new application under one of the two new pathways, or to remain in the Live-in Caregiver Program and apply for permanent residence under the old requirements.

Caregiver for Children Program: The Applicant must have at least 24 months of full-time work experience in Canada as a home child care provider in the four years (48 months) before they apply.

Caring for People with High Medical Needs class The applicant can apply through the Caring for People with High Medical Needs class if you have been working in Canada for at least two years as a:

• registered or licensed practical nurse
• nurse aid or orderly
• home support worker

Live-in Caregiver Program: The applicant may be eligible to apply for permanent residence in Canada after you have had the following work experience under the Live-in Caregiver Program:

• 24 months of authorized full-time live-in employment, or
• 3,900 hours of authorized full-time employment. the applicant can complete these hours within a minimum of 22 months. When calculating hours, the applicant can also include up to 390 hours of overtime; and
• The work experience must be acquired within four years of your date of arrival.

A foreign national must have first obtained a Service Canada Labour Market Impact Assessment/validation before applying for a Work Permit. Once a foreign national had a Service Canada validation, the foreign national could apply for a Work Permit under the live-in caregiver class. Overseas applications are being processed inside Canada.

Please see Chapter 9: Employment Law for further information on live-in caregivers. You may also refer to the Live-in Caregiver Program, administered by the federal government via Citizenship and Immigration Canada. Information on the Program, including the November 2014 changes, is available on the CIC website, and also through the Migrant Workers Centre:

Migrant Worker’s Centre (formerly WCDWA)
302-119 W Pender Street	Telephone: (604) 669-4482
Vancouver, B.C. V6B 1S5	Fax: (604) 669-6456
Website: http://www.wcdwa.ca	E-mail: info@wcdwa.ca

Once a live-in caregiver is admitted into Canada on a Work Permit, she or he must work for two of four years before applying for permanent resident status in Canada (IRP Regulations, s 113(1)(d)).

E. Humanitarian and Compassionate Applications

Section A25(1) of the Immigration and Refugee Protection Act (IRPA) allows foreign nationals who are inadmissible or who are ineligible to apply in an immigration class, to apply for permanent residence, or for an exemption from a requirement of the Act, based on humanitarian and compassionate (H&C) considerations.

Humanitarian and compassionate (“H&C”) applications are generally applied for from within Canada under s 25(1) of the IRPA, but they can also be applied for from abroad. This is a highly discretionary category, and generally only exceptional circumstances will result in an H&C exception. The Supreme Court of Canada in Kanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61 established a broad and comprehensive assessment of all the applicants’ circumstances in an H&C application. The former test, which considers whether the foreign national would face “undue, undeserved, or disproportionate hardship” if they were forced to return to their country of habitual residence or citizenship, should be only treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of "unusual and undeserved or disproportionate hardship" in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

Under the previous test the primary concern is “the best interest of any child” affected by the decision, but an immigration officer will also consider: level of establishment in Canada, family ties in Canada, ties to community, and any other relevant considerations. Review the Program Delivery Instructions on H&C applications (http://www.cic.gc.ca/english/resources/manuals/) for more information.

NOTE: In 2010, s 25 of the IRPA was amended, such that “... the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national”. In other words, officers do not determine whether a well-founded fear of persecution, risk to life, danger of torture and risk of cruel and unusual treatment or punishment has been established, but they may take the underlying facts into account in determining whether the applicant will face hardship if returned to their country of origin.

Subsection 25(1.3) applies only to H&C applications made in Canada.

As of June 29, 2012, refugee claimants who have had their claim denied will be subject to a 1-year bar on submission of an H&C application as well as a bar on concurrent applications. Unlike applications made under a Pre-Removal Risk Assessment, a person who applies under H&C considerations may be removed from Canada before the decision on the application is made.

F. Convention Refugees (the Process)

Foreign nationals who apply for Convention refugee protection or “protected persons” status are assessed by the Refugee Protection Division (“RPD”).

The definition of a Convention refugee is found at s 96 of the IRPA. Generally, the person must: (a) have a well-founded fear of persecution; (b) the fear must be objective and subjective; (c) the fear must be linked to a Convention ground (i.e. race, nationality, religion, political opinion or membership in a particular social group); (d) there must be no Internal Flight Alternative, i.e. a place in the country of feared persecution where the person can reasonably live safely; (e) there must be no state involvement or state complicity; and (f) the state must be unable or unwilling to protect. If a person has more than one place of citizenship, they must have exhausted options in both of their countries of citizenship (see Canada v Ward [1993] 2 SCR 689). This is not an exhaustive list; refer directly to the IRPA, ss 95 to 111.

The IRB Chairperson has issued special interpretation guidelines for determining Convention refugee claims of women refugees. Students should review these “Gender Guidelines” when assisting women refugee claimants. The Gender Guidelines can be found on the IRB’s website, under the heading “Legal and Policy References.”

NOTE: A “person in need of protection” has a different definition, outlined under s 97 of the IRPA. Review the Convention Refugee and Protected Persons classes in the IRPA carefully if dealing with such a case. The Refugee Protection Division has the jurisdiction to consider both ss 96 and 97 of the IRPA.

Significant changes to the refugee determination process have been implemented over the last several years by the Balanced Refugee Reform Act, SC 2010, c 8 (BRRA), and Bill C-31, the Protecting Canada’s Immigration System Act, SC 2012, c 17 (Bill C-31). These laws dramatically change the way in which refugee claims are processed. Some of their provisions have come into force already, but most procedural changes came into effect on December 15th, 2012.

Key Changes:

• People who make a refugee claim at an office in Canada must submit their completed Basis of Claim form (BOC) during their eligibility interview. Those who make a refugee claim at a port of entry must submit their BOC to the IRB no later than 15 days after referral of their claim to the IRB.
• Hearings at the independent Immigration and Refugee Board of Canada (IRB) will be conducted by public servant decision-makers rather than people appointed by the Governor in Council (GIC)
• Hearings for most claimants will be held no later than 60 days after the refugee claim is referred to the IRB.
• For claimants from Designated Countries of Origin (see below), hearings will be held no later than 45 days after referral to the IRB for those who make a refugee claim at a port of entry, and no later than 30 days after referral for those who make a claim at an inland CIC or Canada Border Services Agency (CBSA) office.

In general, refugee claimants have an initial intake interview with an officer, followed by a hearing with a public servant.Due to the increased volume of claims, the RPD has moved to a “first-in, first out” model where claims are heard in the order they are referred If the claimant fails, they will have 15 days to make an appeal to the Refugee Appeal Division (RAD). Claimants from DCOs, those whose claims are decided by the IRB to be “manifestly unfounded” or have “no credible basis,” designated foreign nationals, and those falling under an exception to the Safe Third Country agreement have no right of appeal to RAD (though they can ask for judicial review from the Federal Court).

Please note that the timelines for BOC, Hearings, Document Disclosure and Postponement Requests are different for Inland claimants and Port of Entry claimants.

Clients who are midway through the process are advised to consult the Citizenship and Immigration Canada website for the latest information.

1. Entry/Initiation

A foreign national generally requests Convention refugee protection at the Port of Entry upon arrival, i.e. at the airport, land border or sea border. However, if a foreign national wishes to make a Convention refugee claim after being admitted into Canada, the person should go to the Citizenship and Immigration Office at 1148 Hornby Street, Vancouver, British Columbia and enter a claim for protection. The first step is the eligibility interview.

2. Eligibility

Once a foreign national makes a claim for protection, an immigration officer will interview him or her and determine if the person is eligible to make a claim. There are several classes of ineligible people listed at s 101 of the IRPA. For example, if a foreign national has previously made a Convention refugee claim in Canada, and the claim was accepted, refused, withdrawn or abandoned, that person is “ineligible” to make another claim. If a foreign national is determined “ineligible,” the process stops.

At the eligibility interview, the interviewing immigration officer will obtain the detailed reasons why the foreign national fears persecution. A foreign national should be prepared to accurately outline the details of his or her account of events leading to the claim for protection.

3. Basis of Claim Form (BOC)

Once a foreign national is determined to be eligible to submit a Convention refugee claim, the foreign national will be given a Conditional Departure Order. This is a removal order that only comes into effect if the person loses the claim for protection. The foreign national is now a Convention refugee claimant. The claimant will have 15 days to file the BOC. This is the most important obligation on a Convention refugee claimant, with the exception of attending their hearing.

Claimants will require help in preparing their BOC. In the BOC, a claimant must outline the precise reason(s) for their well-founded fear of persecution. This includes a narrative outlining the dates, incidents of persecution, why they are afraid, etc. The BOC should include facts that support the claimant’s fear, and that address the requirements set out in the IRPA. For example, the BOC should address why the claimant has no internal flight alternative, how the state is involved or complicit in the persecution, etc. This account of events will form the basis of the request for protection at the hearing.

4. Refugee Hearing

The Convention refugee claimant will be scheduled for an oral hearing to assess their claim. This hearing is not open to the public. The Presiding Member and Refugee Protection Officer will question the claimant regarding the BOC. The Minister may also intervene in the hearing and question the claimant if they allege the claimant should be excluded from refugee protection under IRPA s 98.

Note that if the claimant wishes to rely on documents, he or she must file or serve those documents not less than 10 days before the hearing. If the Minister intervenes, they must also be served within the same time frame. If there are documents in other languages, they must be translated (Rule 28).

Claimants may represent themselves at the hearing or be represented by counsel. Representation by counsel is always preferable. Interpreters are provided if required. Claimants may request that a family member or friend be present at the hearing for emotional support.

NOTE: Claimants (and their counsel) must be very familiar with the content of their BOC before the hearing. Claimants must be prepared to elaborate on the details outlined in the BOC. Inconsistencies with the facts as stated in the BOC may be interpreted by a decision-maker as weakening the claimant’s credibility.

5. Refugee Appeal Division

The Refugee Appeal Division (RAD) considers appeals against decisions of the Refugee Protection Division (RPD) to allow or reject claims for refugee protection. In most cases, there will be no hearing as the RAD will base its decision on the documents provided by the parties involved and the RPD record.

a) Client is Appealing the RPD’s decision to the RAD

For a client who is appealing a decision of the RPD to the RAD, the following information may be helpful:

• Once a client has received the written reasons for the decision from the RPD, they will have only 15 days to file a Notice of Appeal;
• After a claimant receives the written reasons from the RPD decision, the claimant has 30 days to file an Appellant's Record.

For a detailed compilation of necessary steps and information for a claimant’s appeal, please refer to the Appellant’s Guide and Kit.

b) Client is Responding to the Minister’s Appeal of the RPD’s Decision

The Minister can appeal the RPD's decision to accept a claimant’s refugee claim subject to the following exceptions:

• i) The claimant is a designated foreign national;
• ii) The claimant is from a country that was a DCO at the time of their RPD decision;
• iii) The claimant made their claim at a land border with the United States and the claim was referred to the RPD as an exception to the Safe Third Country Agreement;
• iv) The claimant’s claim was referred to the RPD before the relevant provisions of the new system came into force.

For a client who is responding to the Minister’s appeal of their RPD decision to the RAD, the following should be considered:

• A claimant will know the Minister is appealing the RPD decision when the Minister gives the claimant and the RAD a document called a ‘notice of appeal’. The Minister has 15 days after they have received the RPD’s written decision to do this.
• The Minister will then give the claimant any supporting documents that they will be submitting as evidence. The Minister has 30 days after receiving the RPD’s written reasons to do this.
• After this is done, the claimant will have to submit a “Notice of Intent to Respond” and provide the Minister and the RAD with a copy, no later than 15 days after the claimant receives the supporting document from the Minister.

For a detailed compilation of all necessary components when responding to an appeal, please refer to the Respondent’s Guide.

G. Pre-Removal Risk Assessment (PRRA)

A PRRA is a risk assessment application before removal of a foreign national from Canada. With some exceptions and some restrictions (see ss 112(2) and 112(3) of the IRPA), every person who is being removed from Canada can submit a paper application describing why they would suffer persecution or danger in the country of destination if returned to that country. The risk(s) are assessed under ss 96 and 97 of the IRPA. However, very few applications succeed under the PRRA process.

LSLAP Clinicians can assist clients with making a PRRA claim.

NOTE: Under the IRPA those claimants who have a failed or abandoned refugee claim will generally be ineligible to make a PRRA claim for 12 months from the date that their claim is refused, while DCOs will be ineligible for a PRRA for 36 months after their negative decision.

1. Process

Once a claimant has received a removal order and has been given notification, he or she has 15 days to apply for a PRRA and another 15 days to make submissions and include documentary evidence. If the person is a failed Convention refugee claimant, the evidence supporting the PRRA must be new or must have not reasonably been available on the date of the hearing; in other words, only “new evidence” is considered.

Once a person has applied for a PRRA, the person cannot be removed from Canada until a decision is made regarding their case. This is called a “stay of removal”.

A person who has been given notice of removal can apply for the PRRA later than the 15-day deadline. However, that person could be removed from Canada before the decision is made (i.e. no stay of removal is issued).

A person who loses the PRRA will be removed. The only redress to a PRRA refusal is to apply for leave and appeal to the Federal Court. The deadline to apply for leave to the Federal Court is 15 days. In such cases, the claimant should contact a lawyer immediately.

2. Status Conferred

If the PRRA is granted, the person will receive the same protection as a Convention refugee. The person will be considered a “protected person” and can apply for permanent resident status from within Canada.

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