Flashcards in Midterm Deck (54):
What are the main points in Michael Walzer’s communitarian approach?
Membership models (forms of inclusion/exclusion we commonly face)
In immigration regulation states behave as:
∗ clubs (admission is selective; past and current club members define criteria for admission of future members; no one on the outside has a right to be inside)
∗ families (moral obligation to admit relatives)
∗ neighbourhoods (no control of entry/exit; market controls movement (ability to find a job, place to live))
What are the main points in Joseph Carens’ liberal perspective?
∗ Equal moral worth of individuals
∗ Individuals should have the liberty to move and settle in a new country (‘veil of ignorance’ argument)
∗ Borders should be generally open
∗ Few grounds on which immigration may be restricted (only for reasons of public order)
What is the constitutional framework?
(1) Constitution Act, 1867:
∗ section 95 – concurrent federal/provincial power over immigration (federal paramountcy in case of a conflict)
∗ section 91(25) – federal power over naturalization & aliens
(2) The Charter
∗ Section 6 – absolute right of citizens to enter and remain in Canada
∗ Section 7 – right to life, liberty & security of person
∗ Section 12 – prohibition of cruel and unusual treatment or punishment
∗ Section 15 – equality
What are the legislative frameworks?
- Immigration and Refugee Protection Act (IRPA)
- Immigration and Refugee Protection Regulations (Regulations)
- Citizenship Act
What are the categories of status in Immigration Law?
- Permanent Resident
- Foreign national
What is the definition of citizen?
- Citizens have unqualified right of entry and residence in Canada, right to vote and run as for office, full socio-economic rights
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
- April 17, 2009
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 the definition of permanent residents?
- Have most socio-economic rights enjoyed by citizens (some restrictions may apply)
- No Charter-protected right to vote or stand in elections
- Conditional right of entry and residence
How is permanent resident status acquired?
1) Meet requirements under any one of these immigration classes:
a. Economic (skilled workers, Canadian Experience Class, skilled tradesperson, business class, provincial nominees or live in caregivers)
b. Family (spouse/common law partner; parents; children, etc.)
c. Refugee (inland claims or resettlement from overseas)
2) Not be inadmissible
How is permanent resident status lost?
- Failure to comply with residency obligation (730 days within every 5-year period)
- Inadmissibility on the grounds of security, violation of human rights, serious or organized criminality
What are the types of temporary residents:
(a) Visitors (may need to obtain a visa)
(b) Students (need a study permit)
(c) Temporary workers (need a work permit)
- Asylum-seekers or refugee claimants – persons who applied for refugee protection in Canada and are waiting for the decision
- Refugees – persons who have obtained refugee protection
What are the rights of foreign nationals?
- Do not have the right to enter Canada
- Can remain in Canada only for the length of authorized stay
- Have limited entitlements determined by the purpose of their stay
What are the 3 government agencies that form the institutional framework for the administration of our immigration system?
∗ Immigration Refugees and Citizenship Canada (IRCC)
∗ Immigration and Refugee Board (IRB)
• Canada Border Services Agency (CBSA)
What is inadmissibility?
- A condition/circumstance that prevents a person from being admitted to Canada either temporarily or permanently; if the person is already in Canada, may lead to his/her removal
What are the grounds for inadmissibility?
- Inadmissible family member
Permanent residents and foreign nationals
- Serious criminality
- Organized criminality
- Violation of human & international rights
- Non-compliance with the IRPA
- Cessation of refugee protection
- The first 4 grounds apply only to foreign nationals; the rest apply to both foreign nationals and permanent residents
- All applicants for immigration are screened for inadmissibility – health, security, criminality checks
What are the consequences of inadmissibility?
- Foreign nationals prior to entering Canada or at a port of entry – may not be allowed to enter or to obtain permanent resident status
- Foreign nationals and permanent residents upon entering Canada – may be removed from Canada
What does inadmissibility due to health (s.38 Of the IRPA) mean?
- Danger to public health
- Danger to public safety
- Applicant might reasonably be expected to cause excessive demand on health or social services (does not apply to protected persons, resettled refugees, sponsored spouses, common-law partners and dependent children)
What does inadmissibility due to financial reasons (s. 39 of the IPRA) mean?
- unable or unwilling to support himself/herself or dependents in Canada
What does inadmissibility due to criminality (s. 36(2) of the IRPA) mean?
- convicted in Canada of an indictable offence or of 2 offences not arising out of a single occurrence
- convicted outside Canada of an offence that if committed in Canada would be indictable in Canada or of 2 offences not arising out of a single occurrence that would be offences in Canada
- committed an act outside Canada that is an offence there and amounts to an indictable offence in Canada
- committed, on entering Canada, an offence under the Act of Parliament as prescribed by Regulations
What does inadmissibility due to serious criminality (s. 36(1) of the IRPA) mean?
∗ conviction in Canada of an offence punishable by a max term of at least 10 years or of an offence for which more than 6 months of imprisonment was imposed
∗ conviction outside Canada which in Canada would be punishable by a max term of at least 10 years
∗ committing an act outside Canada that is an offence there and if committed in Canada would be punishable by at least 10 years
What does inadmissibility due to organized criminality (s. 37) mean?
- being a member of an organization that is believed on reasonable grounds to be or to have been engaged in organized crime
- engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering
What does inadmissibility due to security (s.34 of the IRPA) mean?
∗ engaging in an act of espionage against Canada
∗ engaging in or instigating the subversion by force of any government;
∗ engaging in an act of subversion against a democratic government, institution or process;
∗ engaging in terrorism;
∗ being a danger to the security of Canada;
∗ engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
∗ being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in the acts mentioned above.
What does inadmissibility due to violation of human & international rights (s.35) mean?
∗ committing acts of genocide, war crimes or crimes against humanity outside Canada
∗ being a senior official in a government that engages or has engaged in terrorism, systematic or gross human rights violations, genocide, war crimes or crimes against humanity
What does inadmissibility due to misrepresentation (s.40) mean?
• directly or indirectly misrepresenting or withholding material facts that induces or could induce an error in the administration of this Act;
• for being or having been sponsored by a person who is determined to be inadmissible for misrepresentation;
• on vacation of refugee protection;
• on ceasing to be a citizen due to fraud or false representations
What does inadmissibility due to non-compliance with the IRPA (s. 41) mean?
- Foreign national – contravention of the IRPA (e.g., working without a permit)
- Permanent resident – failure to meet residency obligation or other conditions
What does inadmissibility due to cessation of refugee protection (s.40) mean?
- A person becomes inadmissible upon cessation of refugee protection (i.e., when refugee protection is no longer needed – more details in topics on refugee protection)
What is an inadmissible family member (s. 42)?
A person is inadmissible when:
- his/her accompanying or non-accompanying family member is inadmissible
- he/she is an accompanying family member of an inadmissible person
Would a person who is able and willing to cover the costs of health services or social services still be inadmissible?
- Applicants who are able and willing to pay may be able to overcome this inadmissibility
What are the 3 streams for admission to permanent residence?
What are the economic immigration stream subclasses?
- Skilled workers (federal)
- Canadian Experience Class (CEC) (federal)
- Skilled trades people (federal)
- Business immigrants (federal): start-up visa, self-employed, immigrant venture capital pilot
- Provincial/territorial nominees
- Live-in caregivers (federal)
What is express entry?
Application management system for:
- Skilled tradespeople
How does the point system work?
- Points are awarded based on the assessment of each selection factor
What are the selection factors under the points system?
- Language proficiency
- Work experience
- Arranged employment
What is the pass mark under the points system?
- Possible points: 1,200
- Cutoff score varied between 453 to 786 points
What are the requirements under the Canadian Experience Class (CEC)?
- 12 months of full-time skilled work experience in Canada in 3 years prior to application
- Meet prescribed minimum language proficiency requirements
What are the requirements under the skilled trades people stream?
- Have an offer of employment in Canada for at least 1 year of a certificate of qualification in trades in Canada
- Meet a basic language requirements
- Have at least 2 years of work experience as a skilled tradesperson within 5 years of application
What are the subclasses of business immigrants?
- Start-up visa
- Immigrant investor venture capital pilot
What are the requirements for start-up visa?
- Have an innovative business idea
- Obtain support of a designated organization (secure a minimum investment from them or be accepted into a Canadian business incubator program)
- Meet business ownership requirement (the applicant and designated organization must hold more than 50% voting rights)
- Meet language requirements
- Have settlement funds (same as FSWP)
What are the requirements for the self-employed subclass?
- A person who has intention and ability to be self-employed in Canada
- Areas of activity: cultural activities; athletics; farm management
- At least 2 years (within 5 years before the date of application) of relevant experience
- Score at least 35 points on the points system
Who is considered family?
- Spouses, common law partners
- Dependent children
- Brothers, sisters, nephews, nieces who are orphans, are under 18 and unmarried
- 1 relative of any age if there is no aunt, uncle or relative fro the list above who can be sponsored or has already been sponsored
What are the eligibility requirements to be a sponsor?
- Canadian citizen or permanent resident
- 18 years of age or older
- Resides in Canada (except citizens who sponsor spouses, common law/conjugal partners or children and will return to Canada if the family members’ applications are approved)
o Has a minimum necessary income
o Is not in receipt of social assistance
o Is not bankrupt; is not in default on any undertaking or payment obligations
o Signs a sponsorship undertaking
o Is not imprisoned
o Has not beet convicted of offences of sexual nature or involving domestic violence
o Is not subject to a removal order
- 5-year bar on sponsorship for persons who themselves have been sponsored as a spouse, common-law or conjugal partner to Canada
What does a sponsorship undertaking do?
- The undertaking obliges the sponsor to reimburse the government the amounts of social assistance received by the sponsored during the length of an undertaking
What are the lengths of a sponsorship undertaking?
- 3 years in case of a spouse; common law/conjugal partner; dependent child who is 19 years or older
- 10 years OR the day when the child reaches the age of 22 – whichever is shorter – in case of a dependent child who is under 19
- 20 years in case of parents and grandparents
What factors are considered in the determination of genuineness of marriages and common-law partnerships?
- Do the spouses or partners have a good knowledge of each other?
- The immigration status of the applicant and the timing of the marriage or relationship
- Is there a history of multiple marriages, divorces, common-law relationships or conjugal partner relationships?
- Have previous relationships clearly ended and does the period of separation seem reasonable in the circumstances
- Do the applicants speak a common language?
What are the classes of temporary residents?
- Students (study permit)
- Temporary/seasonal workers (work permit)
- Visitors (temporary resident visa)
What are the general considerations for admission of temporary residents?
- Whether an applicant would be likely to leave at the end of the authorized stay
- Whether an applicant would be likely to violate conditions of his/her stay
- Whether a person is inadmissible
- Other applicable requirements depending on the type of temporary admission
What are the general conditions of stay in Canada for temporary residents?
- 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 main requirements to be met for an application for a study permit?
- Usually an application is made before entering Canada
- In some cases and application may be made after entering Canada
- Exemptions – no need for a study permit to attend pre-school, primary & secondary study; programs of study of 6 months and less
What are the 3 types of student employment?
- On campus
- Off campus
Do students require a work permit for on campus employment?
- Do not require a work permit