Flashcards in Exam Deck (74):
How can a person acquire Canadian citizenship?
- Jus soli (by birth)
- Jus sanguinis (by descent)
How is citizenship by birth acquired?
Automatic acquisition of citizenship by children born in Canada
How is citizenship by descent acquired?
- Citizenship by descent – children born abroad to Canadian parents
- Limitation of jus sanguinis for children born abroad after one generation
What are the requirements for naturalization?
(a) Age (being 18 or older)
(b) Physical residence in Canada (4 out of 6 years prior to application; 183 days minimum per year in 4 out of 6 years)
(c) Adequate knowledge of Canada, of citizens’ rights and responsibilities and of an official language (applicants 14 to 64)
(d) Filing tax returns (at least 4 years out of 6 prior to application)
(e) Making a declaration of intent to reside in Canada
(f) Not being: under a removal order; in prison or on parole; charged with a serious crime; convicted of certain offences in 4 years prior to application; subject to declaration that applicant is a threat to Canada or engaged in a pattern of criminal activity
(g) Taking a citizenship oath
What is express entry?
Application management system
How does express entry?
- Point system based on skills, education, Canadian work experience and language proficiency
- Possible points: 1,200
- Cutoff score varied between 453 to 786 points
Which immigration streams have to apply under Express Entry?
- Foreign Skilled Workers Program
- Canadian Experience Class
- Skilled tradespeople
What are the entry and departure rules for foreign workers?
- Application for temporary resident visa and study/work permit has to be made abroad (some exceptions)
- Applicant must meet all the criteria both at the time when visa is issued and at the time of entering Canada
- Admission may be denied at the port of entry if a person is inadmissible
- Permits may be renewed from within Canada
- Visitor, student, worker status may be restored within 90 days after it was lost
What are the conditions to stay for foreign workers?
- To leave Canada upon expiration of visa/permit
- Not to work unless authorized to do so
- Not to study unless authorized to do so
What are the exemptions from work permits?
- Judges & Referees
- Crew members
- Military personnel
- Emergency care providers
- Public speakers, convention organizers, news reporters
What are the exemptions from ESDC?
- Under international agreements
- Some student employment
- Foreign state representatives
- Performing artists
- Participants of sports events
What are the admission trends for foreign workers?
- Skilled workers
- Live-in caregivers
- Seasonal Agricultural Workers
What are the major requirements for a work permit?
- Prove to an officer that you will leave Canada when your work permit expires
- Show that you have enough money to take care of yourself and your family members during your stay in Canada and to return home
- Obey the law and have no record of criminal activity
- Not be a danger to Canada’s security
- Be in good health and have a medical exam, if needed
- Not plan to work for an employer listed with the status “ineligible”
- Not plan to work for an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages, and
- Give the officer any other documents they ask for to prove you can enter the country
What is the design of the Seasonal Agricultural Workers Program?
- Alleviates labour shortage in agriculture; in place since 1966
- Based on bilateral agreements between Canada and participating countries
- Participating provinces:
• British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and PEI
- Participating countries:
• Mexico, Anguilla, Antigua and Barbuda, Barbados, Dominica, Grenada, Jamaica, Montserrat, St. Kitts-Nevis, St. Lucia, St. Vincent, and Trinidad and Tobago
- Duration of contract – up to 8 months
- ESDC approval and work permit required
What are some problems with the Seasonal Agricultural Workers Program?
- Housing conditions
- Exclusion of workers from the right to collective bargaining and provincial health/safety legislation
- Difficulty ensuring employer compliance with contracts and standards
- ‘Blacklisting’ by employers
- Isolation and separation from families
- No access to permanent residence
What are the two pathways for application for the (Live in) caregiver program?
- Come to Canada on a work permit
- Can apply for permanent residence from within Canada after working as a caregiver for a specified period of time
What is the criteria for initial admission under the (Live in) caregiver program?
- Approval of job offer by Employment and Social Development Canada (ESDC)
- A contract with the employer
- Application for a work permit
- Work permit is issued
What is the criteria for acquisition of permanent resident status under the (Live in) caregiver program?
- 2 streams – each with separate requirements: (1) children; (2) high medical needs
- 24 months of full-time employment as a caregiver + language proficiency + educational credential
What are some problems with the (Live in) caregiver program?
- Separation from families (on average 5 years)
- Marriage breakdown; alienation of caregiver’s children (due to lengthy separation)
- Deskilling of caregivers
- Abuse by employers
- Financial pressure: remittances
What is refugee convention?
A person who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or unwilling to avail himself of the protection of that country
What is the principle of non-refoulement?
- No contracting State shall expel or return (“refouler”) a refugee…where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion
- The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country
What are durable solutions for refugees?
- Integration in the country of first asylum
- Resettlement to a third country
What is UNHCR?
Assistance to refugees and other populations of concern
What does UNHCR do?
- Policy development
- Monitoring of refugee situations
- Promoting durable solutions for refugees
What changes and challenges does UNHCR face?
• ‘Refugee fatigue’; concentration on containment and interdiction
• Illegal migrant – refugee – queue – jumper discourse
• Greater capacity to control flows of people
• Frustration with lack of burden-sharing and selective attention to refugee situations
• Lack of resources
What is interdiction?
Measures to prevent asylum-seekers from entering state territory
What are the different measures utilized in interdiction?
- Interception at sea
- Visa requirements
- Carrier sanctions
- Migration integrity officers overseas
- Safe third country principle
What is the definition of a Convention refugee, or person in need of protection and of protected person under the IRPA?
Principle of territoriality – obligation to consider claims of only those in a state’s territory
Define well-founded fear.
- Objective basis – serious possibility of persecution in the country of reference: based on ‘objective’ information
- Subjective basis – claimant’s subjective fear of persecution
- Not defined in the Refugee Convention
- Usually means serious and systematic harm; violation of human dignity; harm that does not fall within legitimate prosecution and punishment for criminal activity
Citizenship and ethnic group
Broad definition, including descent, colour, ethnic origin
Theistic, non-theistic or atheistic beliefs
Define political opinion.
Any opinion on the matter of the state, government or policy
What are the main stages of the current Canadian inland refugee determination process?
- Claim made (difference between Port of Entry and inland claim process)
• Claimant completes BoC form and brings it to IRCC officer; IRCC determines eligibility; hearing within 60 days
- Assessment of eligibility
- If eligible, Basis of Claim Form completed
- Hearing before the RPD
- If successful, application for permanent residence (not for all claimants)
- If unsuccessful, appeal to RAD (not for all claimants) and/or judicial review
- If ready for removal – Pre-Removal Risk Assessment (PRRA)
What are the avenues of appeal and judicial review for rejected claimants?
- Appeal to RAD (Refugee Appeal Division)
- Judicial review
- PRRA (if no appeal/judicial review was pursued or they were unsuccessful)
Explain appeal to RAD.
- Not available for DFN claimants
- Unavailable to designated foreign nationals (DFN), claims that qualified for an exception to the Safe Third Country Agreement, claims determined by RPD as manifestly unfounded or having no credible basis
- 15 days to submit notice of appeal + further 15 days to submit arguments and documents
- Paper-based process; hearing may be conducted when credibility at stake
- RAD can:
o Confirm RPD decision
o Set aside RPD decision and substitute it with its own
o Refer the case to RPD for re-determination
Explain judicial review.
- Application is made to the Federal Court; leave (permission) to appeal needed
- Grounds for review: questions of law, fact, mixed law and fact
- Claimants that don’t have access to RAD can apply for judicial review of RPD decision
- Claimants that received negative RAD decision, may apply for its judicial review
- If judicial review is successful, the case is sent back to the original decision-maker for re-determination
What is a PRRA?
- Pre-Removal Risk Assessment
- Available to persons who are ready for removal
- Assesses whether a person would face persecution, risk of torture or risk to life upon removal
- Paper-based application (interviews are rare); only new evidence my be presented
- If successful – conferral or refugee protection (in most cases)
What is the Canada-US Safe third country agreement?
- Applies to refugee claims made at Canada-U.S. land border
- Refugee claimants must seek protection in the country which they have entered first
- Exceptions: claimants who have a family member in Canada, unaccompanied minors, holders of a visa/permit, public interest exceptions
What are the main points from Peter Showler’s article “The Grand Canyon…”?
- Language – quality of interpretation, rupture between content and emotion
- Cultural difference – presumptions about daily practices, importance of dates, places, names (what is reasonable or plausible)
- Personal history of the claimant and decision-maker
- Trauma – ability to remember and describe events
- Fear/anxiety – confusion, forgetting details
- Misrepresentation – advice to embellish stories
How is a designated country decided upon?
- If more than 30 claims from a given country is heard in a year: rejection rate of those claims is at least 75% or withdrawal and abandonment rate is at least 60%
- If less than 30 claims for a given country is heard in a year: CIC Minister is of opinion that the country has an independent judiciary, recognizes democratic rights and freedoms, there are civil society organizations in place
What are the consequences of designation?
- Minister of Public Safety considers that the examination or investigation of a group cannot be conducted in a timely manner or
- Minister has reasonable grounds to suspect that the group might have been smuggled for profit
What is the difference in treatment designated countries?
- Shorter hearing timelines (30-45 days)
- No stay or removal on judicial review
- Ineligible for PRRA for 36 months
What is the difference in treatment Designated Foreign Nationals (DFN)?
- Mandatory detention (first review after 14 days, then 6 months)
- No access to appeal
- No stay of removal on judicial review
- 5-year wait for application for permanent residence
What is the difference in treatment other claimants?
- Hearing within 60 days
- Access to appeal
- Stay of removal on judicial review
- Ineligible for PRRA for 12 months
What are its main stages of refugee settlement?
- Be outside Canada and outside their country of origin
- Meet the definition of refugee or a humanitarian-protected person
- Have no reasonable prospect of a durable solution other than in Canada
- Have private or government sponsorship or be self-supporting
- Have intention to reside in Canada
- Be able to become successfully established in Canada
Who can sponsor refugees?
- Government-assisted refugees
- Privately sponsored
- Joint government-private sponsorship
What are the qualifications for sponsorship?
- Must be located or have representatives in the community where resettled refugees are expected to reside
- Must possess sufficient funds and human resources to meet the needs of the sponsored refugees and put in place adequate arrangements for settlement support
- Must not be and must not include an individual or an organization that is in default on an undertaking.
What criteria a refugee must meet in order to be resettlement?
- Approval of a sponsor in Canada
- Approval of refugee’s permanent resident application by IRCC outside of Canada
What is the difference between human smuggling and human trafficking?
- Individuals are recruited by coercive, deceptive or abusive means
- Carried out for the purpose of exploitation of victims
- Ongoing exploitative relationship between the trafficker and victim
- Can be internal or transborder
- Migrants usually enter into arrangements voluntarily
- Carried out to derive profit fro facilitating illegal entry
- Relationships between the smuggler and the migrant usually ends upon border crossing
- Always transborder
What is the definition of human trafficking under the Protocol to prevent, suppress and punish trafficking in persons?
'Trafficking in persons’ means:
- Recruitment, transportation, transfer, harbouring or receipt of persons for the purpose of exploitation
- The above done by means of the threat or use of force, of abduction, of fraud, of deception, of the abuse of power…
- Exploitation includes, at a minimum, the exploitation of the prostitution of other or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs
- Consent of a victim of trafficking in persons to the intended exploitation is irrelevant
What are the three prongs of the anti-trafficking strategy under the Protocol?
- Prevention/deterrence of trafficking
- Prosecution of traffickers
- Protection of victims
What is the Canadian approach to prevent human trafficking?
- Prevention is source countries: public awareness, promotion of women’s rights, research
- Border control
- Cooperation among states: information sharing, training, prevention and punishment of traffickers
- 2012 – work permits are no longer issued for foreign workers in sex industry
What is the Canadian approach to prosecuting traffickers?
- Criminalization of human trafficking
- Inter-state cooperation in investigation, prosecution
- Facilitating victim cooperation in prosecutions
What is the Canadian approach to protecting victims of trafficking?
- Proactive efforts searching for trafficking activity
- Training on identification of trafficked persons
- Special assistance/protection programs
What does Canada’s assistance program provide to victims of trafficking?
- No official measures until 2006
- Victim Assistance Program (May 2006)
• Recovery and reflection period: 180-day temporary resident permit (TRP)
• Extension of a TRP (up to 3 Years)
• May apply for work and study permit
• Have some access to social services and healthcare
• Cooperation with prosecution is not required
What is CBSA?
- Canada Border Services Agency
- Manages border, admission of persons and goods into Canada
- Detains inadmissible persons
- Removes inadmissible persons
- Conducts interdiction of persons and goods
- Collects taxes and duties
Explain the detention of designated foreign nationals.
- Can be applied to foreign nationals and permanent residents only
- Can be applied upon entry or after admission to Canada
- Safeguard against indefinite detention: periodic reviews
- Once detention occurs – right to counsel
What is the “regular” detention of foreign nationals and permanent residents?
- Flight risk
- Identity (lack of)
- Danger to the public
- Necessary to complete individual’s examination
- Reasonable to suspect the person is inadmissible on grounds of security, violation of human rights, criminality, serous or organized criminality
- Minors detained only as last resort
Which body conducts detention reviews and what powers does it have?
- Immigration Division of the Immigration Review Board
- Immigration Division may order continued detention or release with or without conditions
What are the types of removal orders and their consequences?
- Departure order – may return at any time
- Exclusion order – written authorization from CIC to re-enter during 1-year period or 2-year period if excluded for misrepresentation
- Deportation order – written authorization from CIC to re-enter
Explain security certificates.
- Intended for containment and removal of foreign nationals and permanent residents inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality
- Introduced in 1978
- More restrictive procedure introduced in 2002
- Charkaoui decision (SCC, 2007): certain provisions determined unconstitutional
- Bill C-3 (2008): ISPA amended to include provisions on special advocates
What is the procedure for issuing a security certificate?
- CIC Minister and the Minister of Public Safety and Emergency Preparedness sign a certificate
- A person concerned may be detained
- Certificate is referred to the Federal Court
- If the certificate is determined reasonable, a person concerned is subject to deportation
What are the problems with security certificates?
- Differential treatment of citizens and non-citizens
- Lengthy detention with limited opportunity for review
- Possibility of deportation to countries where a person may force torture
- Restrictions on disclosure of classified information to a person concerned
What where the basic facts of Charkaoui - Supreme Court decision on security certificates?
- Launched by Charkaoui, Almrei and Harkat
- Lack of information disclosure violates s. 7 of the Charter
- Lack of detention review for foreign nationals violates s. 9 of Charter
- Security certificate procedure of no force and effect
o Amendments to the IRPA
• Special advocate system – represents interests of the person concerned in closed proceedings
• Regular detention reviews – same for foreign nationals and permanent residents
• Appeal of the decision on reasonableness of a certificate to the Federal Court of Appeal
What is the role of special advocates?
- Appointed by the court to protect the interests of persons named in security certificated
- Given access to national security information that is not disclosed to the named persons
- Must maintain confidentiality of national security information
What are the functions of special advocates?
(1) can challenge government claims that certain information cannot be disclosed to the named person named;
(2) participate in the closed hearings
What are the limitations of special advocates?
Cannot communicate with the names person after having received confidential information
What are the domestic remedies available to rejected immigration applicants and refugee claimants?
- Administrative law remedies
• Appeal to the Immigration and Refugee Board
• Judicial review to the Federal Court
- Constitutional challenge to a provision in question
If an applicant under the economic class is rejected, where can he/she turn for recourse?
No appeal mechanism; only remedy – judicial review of IRCC decision
If an applicant under the family class is rejected, where can he/she turn for recourse?
- Appeal to the IAD (Immigration Appeal Division)
- IAD can:
• Grant the appeal and send the case back to IRCC for re-determination
• Dismiss the appeal
- If IAD appeal is rejected – apply for judicial review (Federal Court) of IAD decision; if successful, case will be referred to IAD for re-determination
If a refugee claimant is rejected, where can he/she turn for recourse?
- Appeal to RAD (Refugee Appeal Division)
- RAD can:
• Dismiss the appeal
• Grant the appeal and substitute its own decision
• Grant the appeal and send the case to RPD for re-determination
- If RAD appeal rejected – judicial review of RAD decision; stay of removal on judicial review