Options for Exploited and/or Abused Temporary Foreign Workers

The author is a 15-year veteran immigration lawyer and has encountered many exploited and abused temporary foreign workers. These workers are often exploited or abused by their own community and face a difficult choice of reporting the abuse or exploitation and risking removal or deportation, or continuing in their untenable situation for the hope of working or staying permanently. The author discusses the options available for these workers, such as a humanitarian and compassionate application, a Temporary Resident Permit, or an open work permit. The author is glad that there are more options for these workers and looks forward to seeing immigration officers implement these protections.

In my 15 years practising immigration law, I have encountered many exploited and abused temporary foreign workers (usually low-skill/low-wage). They are often exploited or abused by members of their own community -sometimes even by their own family.

This abuse/exploitation takes on many forms. 

For years, foreign workers were caught in a dilemma. Report the exploitation/abuse and risk removal/deportation from Canada or continue in an untenable situation for hope of working (even at their pitiable wages) or staying permanently. 

Options for Exploited/Abused Temporary Foreign Workers

Some sought relief via a humanitarian and compassionate application (the "H&C"). The outcome of course depends on the officer. Some have been sympathetic, others not so much. I sought judicial review on such a refusal. Justice Fothergill's decision will help many others I think:

[17]  The immigration officer did not dispute that Ms. Kaur had been the victim of fraud, and even praised her willingness to assist in the investigation of her employer. While acknowledging that her employer’s actions had undermined her AINP application, the officer appears to have concluded that the situation was effectively resolved by affording Ms. Kaur an opportunity to seek new employment or obtain a new LMIA. The officer ultimately gave little weight to the rejection of Ms. Kaur’s AINP application, yet the circumstances that led to this result were at the heart of her request for an exception on H&C grounds.

[18]  A troubling implication of the officer’s decision is that foreign workers who endure fraud or abuse in the course of their employment, and who are threatened with termination and deportation, can expect little sympathy from those who administer Canada’s immigration laws. I do not mean to suggest this was the officer’s intention. But the officer’s decision to ascribe only little weight to the appalling circumstances surrounding the loss of Ms. Kaur’s employment in Canada was not, in my view, consistent with the approach mandated by the Supreme Court in Kanthasamy. I am also left in some doubt whether the officer performed “the requisite analysis of whether, in light of the humanitarian purpose of s 25(1), the evidence as a whole justified relief” (Kanthasamy at para 45).

There has always been, of course the TRP, the Temporary Resident Permit (s.24 of the Act). A little faster than first stage approval for H&C; and the possibility of a work permit and an independent pathway to PR under the Permit Holders Class.

Now, of course there is the possibility of a worker to obtain an open work permit (work permit needs to be valid or on implied status). This fulfills a number of important public policy objectives. 

Additional information can be found here:

Work authorization

For a migrant worker to be eligible, at the time they apply, they must be in Canada and must either hold a valid LMIA or LMIA-exempt, employer-specific work permit or be authorized to work without a work permit under implied status as a result of applying for a renewal of their employer-specific work permit [R186(u)].

In addition, per subsection R200(3.1), paragraph R200(3)(e) does not apply to migrant workers referred to in subsection R207.1(1), who have engaged in unauthorized work or failed to comply with a condition. In other words, officers who have reasonable grounds to believe the migrant worker is experiencing abuse or is at risk of abuse in the context of their employment in Canada should not refuse to issue the open work permit on the basis that the migrant worker has engaged in unauthorized work or has not complied with a condition.

Context of employment

Officers must have reasonable grounds to believe that the migrant worker is experiencing or is at risk of experiencing abuse in the context of their employment in Canada. Generally, the employment context does not include abuse taking place in someone’s private dwellings (with the exception of workers who live in housing or accommodation provided by the employer). On the other hand, the employment context is not limited to abuse directly at the hands of the employer of record.

 

Conclusion

I have a great deal of sympathy for these individuals -strangers as they are, in a strange land. I'm glad there are more options for them and look forward to seeing officers putting those protections in place (and not constraining or construing their discretion too narrowly).