Another year comes to a close. We've seen over the past 365 days a plethora of immigration news, announcements and developments (we even got through a federal government strike, thankfully one that seemed to have minimum impact on processing). One constant in this field has been the revolving door at the very top; 2023 saw yet another Minister take charge (I’m losing count of the number of Ministers I’ve seen come and go since I started practice).
What has stood out for me this year was the following:
- The end to immigration detention –at least in the form that many of us were familiar with. For those unfamiliar with those dark times, here’s an interview where immigration detention was discussed ten years ago. And, lest we forget, Canada, like the US, was also no stranger to detaining minor children (including Canadian citizens because their parent(s) was detained).
Alberta gave notice to CBSA to end the detention agreement and I was interviewed on this issue in January of this year:
“Conditions at the (Calgary) Remand Centre are a very blunt instrument for the vagaries of immigrant situations,” said Raj Sharma, a Calgary immigration lawyer.
“A typical detainee profile is someone who’s made a refugee claim who, for whatever reason, doesn’t have his documents in order or who the CBSA thinks might be a flight risk.”
Sharma said he represented one pregnant Somali woman who had to be transported to hospital seven times during her detention in Calgary.
There are only three federally operated immigrant holding centres in Canada — in B.C., Ontario and Quebec — with Ottawa relying on provincial lockups in other provinces, said Julia Sande, a lawyer with Amnesty International.
But given the numbers at play the watershed was when Ontario followed suit and decided to refuse access to jails for immigration detention. With Ontario stepping back it effectively ended the controversial practice of jailing non-violent non-criminal immigrants in difficult conditions (Quebec also made the same decision about a week prior to Ontario; BC had gotten the ball rolling a few months before both).
From the Toronto Star:
“This is an incredible victory,” said Hanna Gros, a researcher with Human Rights Watch, which has long campaigned against the use of jails for immigration detention. “It’s a monumental win for human rights, for migrant and refugee rights.”
Canada’s use of maximum-security provincial jails to hold immigration detainees — who are not charged with a crime or serving a sentence, but can be detained indefinitely — has for years drawn condemnation from human rights organizations, including the United Nations.
It was the subject of a recent Toronto Star investigation, which found more than 80 per cent of immigration detainees held in Ontario’s jails last year were detained solely on the grounds they were “unlikely to appear” for their deportation, not because they were considered dangerous.
In more than half of the five dozen cases reviewed by the Star, detainees had reported mental health issues, and they were often subject to punishing conditions, including frequent lockdowns and solitary confinement.
- The STC got extended.
Many advocates were disheartened by the Supreme Court’s decision on the STCA earlier this year. Just prior to the decision, in March, Canada and the US extended the STC to the entire border, not just at official POE. That essentially shut down Roxham Road the gateway to Canada for so many thousands these last few years. The decline on the land was made up for by claimants that made claims after flying into this country.
- Canada nimbly sought to poach high skilled immigrants from the US.
Canada sought to poach 10,000 applicants that held valid H-1B status in the US. Eligible applicants could get an open work permit for 3 years and the quota filled quickly. It remains to be seen whether the gambit will pay off, but the effort alone is commendable. Luckily my brother, Ashwin Sharma, a well known and respected US immigration attorney was in town visiting and we discussed this topic on RedFM.
- IRCC started handing out TRVs like candy on Halloween.
In December of 2022 IRCC contemplated waiving certain requirements for the grant of a temporary resident visa.
For years, Canada's lenient stance on evaluating asylum claims contrasted sharply with its stringent requirements for visitor visas. This made it notably difficult for prospective refugees to enter as visitors to enter. But a recent surge in asylum applications stems from a waiver the federal government knew would spike asylum claims. Statistics show that since this new policy's implementation in late February, there have been over 23,000 asylum applications at airports till September — a big increase from 2022.
A deeper look into an IRCC briefing document from December 2022 reveals a decision to circumvent the process for hundreds of thousands of visitor visas. Their proposed solution was to covertly waive visa requirements for nearly 450,000 applicants. Only after four months did the IRCC officially announce this change, shortly before a Radio-Canada report highlighted the matter. This wasn't a minor adjustment but a pivotal alteration in Canada's immigration approach, which foreseeably fueled the upswing in asylum applications and once again exacerbated application backlogs (see Globe and Mail op-ed here).
Steven Meurrens: Now, one of the ways, moving to the next question of resolving systemic issues might just be to waive requirements. So I don't know if you both saw that...
Raj Sharma: That's not a way to systemically deal with anything. That is surrender.
Steven Meurrens: Yeah, for those who don't know the story, the Globe and Mail apparently obtained a memorandum of argument act. It was through, from what I understand, the journalist source at IRCC, it wasn't through an Accessed Information Act request or anything, which says that there's a huge backlog of temporary residence applications. I think it exceeds 1 million. On the temporary resident visa side, the government is considering for about 400,000 temporary resident visa applications in the backlog to just waive the requirement that applicant show that Lee will leave Canada by the end of the authorized stay.
Couple other things to note about the memo. Apparently there were not going to be plans to communicate this, that this was happening. It was just people would notice all of a sudden maybe that there were a lot of approvals coming really quick and that it would eventually come out in ATIP. So one of the questions that I got from a few people was, what do you think about this?
Raj Sharma: I think it's insane. I think it's insane. I think it's pie in the sky. I think there's going to be significant downstream effects to this. I can only imagine the reaction by overseas visa officers who have been tasked with determining whether this individual meets the requirements of the act and regulations. Now you're going to say just waive them. Look, they tried this with that spousal open work permit not too long ago and they said, "Hey, they should relax up on 179-B," and that didn't seem to have anything [inaudible 00:18:57]
Deanna: So tell me though, what's your fear? What do you see as the worst case scenario here, Raj?
Raj Sharma: You suddenly approve 400,000 people to come here on a visitor visa and [inaudible 00:19:12] in Canada and a significant number of them perhaps don't want to leave. You're going to stress the system. You're going to have LMIA and work permits under that. Obviously it's not even a new public policy anymore. So you let 400,000 individuals in you are going to impact other aspects of this system, whether it's the work permit regime, whether it's the refugee system.
Deanna: Enforcement.
Steven Meurrens: They estimate in the memo that it will lead to 8,600 refugee claims.
Raj Sharma: That's basically a third more than what they got right now per year. So every decision in immigration has corollary or secondary or tertiary impacts. Again, thinking as a visa officer, I can only imagine the reaction of these visa officers because some of these individuals that are trying to enter Canada have ulterior motives, not just overstay, not just working hard and fulfilling the Canadian dream. I mean, there are other nefarious actors out there as well. The message that you're sending, you kind of hinted at an amnesty or waiver in September, October. Now you're hinting at a whole stream, waiver of a requirement. So what do you do then? Are you setting the stage for an amnesty? Oh, we now have 400,000 plus the 500,000. I guess we have to do an amnesty. It sends us strange messages and I think that there's going to be seen and unseen consequences to this.
Steven Meurrens: Yeah, the fact that it leaked I think is actually also going to lead to more applications. I don't know if, when they do this, they're going to have a cutoff date for applications received before a certain date for sure. I've been contacted by a few individual and representatives who are just throwing applications in or planning on throwing applications in now hoping that it'll be bulk approved. On the judicial review side, I've been contacted saying, "Hey, can we get a quick consent? We want our application back in processing for when the bulk approvals start." So it's definitely created [inaudible 00:21:23]
Deanna: A buzz
Steven Meurrens: If anything else, has created a bit of a buzz that could lead to more of those downstream consequences.
- Hundreds of International Students (mostly Indian) faced deportation for entering on false documents.
Hundreds of Indian students were facing deportation (some already have been removed) for the use of false admission documents (something that has been taking place for years). The alleged mastermind is in CBSA custody as we speak and some students have been granted a reprieve. I shared my thoughts on this contentious issue with Kamal Kubeir.
- The worm has turned.
Firstly, the immigration levels ‘plan’ was announced which was more akin to a plan to have a plan. In essence we are holding the line on about half million PRs a year which the traditional mix of about 60% economic to 40% non economic applicants. I discussed this with CBC Daybreak out of BC:
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Chris Walker: |
And so what do you think the federal government could improve in that regard? |
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Raj Sharma: |
There's a number of troubling aspects here. There's two recent polls that indicate a drop in public support for immigration. Historically, we've had very high support for immigration because Canada tends to, or we have that impression that Canada picks that we choose our immigrants, and so what we have right now is with the inflation and the rise in cost of living, you have pockets of perhaps concern, and again, Canada is a large country. The population's spread out. You have very serious concerns regarding housing and inflation. |
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Those hotspots being probably the GTA, the greater Toronto area and the lower mainland, probably. You have hundreds of thousands of temporary residents. So I think, by the way, that is probably going to be the bigger story next year, that it looks like there's going to be a cap on international students coming in. It looks like they're going to try to get a handle on the hundreds of thousands of temporary residents that are now in Canada, because we might just have this permanent underclass of workers and Uber drivers and food counter attendance with no ready pathway to permanent residence. As you can see, the math doesn't add up. You have a million plus temporary residents. We're taking 500,000, 60% are economic class. Someone's going to be left out. These students are going to be coming to Canada, and there may not be a ready pathway to permanent residence for them. |
Secondly, and more significant, there’s going to be some draw down in terms of the number of temporary residents in Canada. There’s been a number of signals that have been sent by Liberal Ministers Sean Fraser and Marc Miller about reining in the numbers of temporary residents whether workers or international students.
Our newest (and still current, at least at the time of writing) Immigration Minister Marc Miller has signaled a forthcoming shift in policy (expected by many), stating that the number of temporary foreign workers in Canada has "run a bit rampant for far too long" (under this Liberal government) and will be reined in (the proof I suppose will be in the pudding). He draws a parallel between the surge of these workers and Canada's housing crisis. Miller also criticizes the international student visa system, comparing some provincial DLIs to 'puppy mills,' and underscores the need for regulatory measures to manage the numbers of temporary residents more effectively. Starting next month, international students will have to show additional financial funds/resources.
It’s not just the politicians. There’s been numerous op-eds and articles about this issue from a variety of media. Tony Keller for the Globe recently critiqued the Canadian immigration policy under the Trudeau government, specifically noting the doubling of numbers of non-permanent residents without concrete justification, leading to a vast and potentially unsustainable increase in Canada's population. Keller castigates (as have others) the international student regime. There's been a huge increase in foreign student numbers and he points out the obvious: many are more focused on jobs (and PR) than education. Our newest Immigration Minister Marc Miller has acknowledged issues within the student visa system, likening some institutions to 'puppy mills.' (notwithstanding Liberal govt policies allowing these students to work during their studies and increased allowed work hours). Keller calls for a return to an immigration system that favors skilled workers and high-wage jobs, and argues for a reduction in student visas and a halt to work rights for foreign students to improve GDP per capita and address inflation and housing market concerns.
Former Governor of the Bank of Canada has also “entered the chat”:
“In the last years, we have altered an economic immigration system that stood as a model for the world,” declares a Dec. 11 report co-written by Dodge for the law firm Bennett Jones. But where Canada once oversaw a carefully managed immigration system that prioritized “highly skilled workers,” the report said Ottawa has now “ramped up significantly” the intake of foreign students and other low-skilled temporary workers.
“Poor administration and the abuse of some programs are damaging the credibility of the system for immigrants and Canadians,” warned the report, which also cautioned that the “large and rising inflow of workers with lower skills” risks depressing wages.
- Amnesty is still on the table.
Notwithstanding the above ‘signals’ it is surprising to see the same Minister continue to talk about a broad amnesty to regularize those without status in this country:
In an interview, Mr. Miller said he is preparing to create a “broad and comprehensive program” that would allow many without valid documents to apply for permanent residency. Among those included would be people who entered the country legally, as temporary workers or international students, and then remained here after their visas expired.
The minister said he plans to present a proposal to cabinet in the spring on allowing undocumented immigrants to “regularize their status.” But he acknowledged the policy may face opposition.
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But he said he understands how some immigrants who came to Canada legally may feel about people they think “got a pass.”
“These are people that are already here, already contributing and have kids,“ he said of undocumented workers. “People do get worked up about numbers, but the reality is that they are already here.”
He said it “makes absolutely no sense” that people who have been here for decades and have children have not been able to obtain legal status. He added that Canada’s immigration policy needs refining and “tailoring to the reality on the ground.”
I canvassed this issue earlier this year but I’m surprised it’s still being discussed and it remains to be seen whether it will get past cabinet. It doesn’t take a soothsayer to surmise that such a policy might inadvertently incentivize actions that compromise the integrity of the immigration system, potentially leading to an increase in illegal immigration and other undesirable outcomes; and such a policy would be at odds with the signaling to date regarding high numbers of temporary residents and immigrants fueling inflation, health care strain, and housing affordability (or lack thereof).
- Those here with TRVs are applying for asylum in greater numbers.
"The number of refugee claims made by study permit holders has gone up about 2.7 times to 4,880 cases last year from 1,835 in 2018, as the international student population also surged by approximately 1.4 times to 807,750 from 567,065 in the same period."
There’s also been an increase in the number of Indian nationals that are doing the same.
- The Federal Court seems OK with the use of tools like Chinook in processing TRVs.
Many counsel were understandably intrigued and concerned with the government’s use of “Chinook”, overstated by some early accounts as artificial intelligence.
In Haghshenas v. MCI 2023 FC 464, the Court (Brown, J.) dismissed a challenge against a refusal to issue a visitor visa.
This 2023 case is notable because, in addition to the emphasis on the visa context and the minimal duties at play, the Court assessed the Applicant’s arguments impugning the legality of using Chinook which turned out to be a decidedly low-tech Microsoft Excel-based tool developed by IRCC designed to improve processing efficiency.
Brown J. found no unreasonableness or procedural unfairness in IRCC Officers using Chinook when making a negative decision on a TRV application. The Court felt comfortable that the applicant was given an opportunity to present their case and the resulting decision was reasonable and procedurally fair. Justice Brown found that the use of the tool did not change the change the decision-making process; while Chinook helped in assembling input for the decision it didn’t render the decision itself. Justice Brown took the Department at its word —that it does not use AI or advanced analytics for decision-making; that final decisions are always made by officers. Ultimately the Court gave short shrift to the applicant’s concerns about the reliability or (inappropriate) involvement of Chinook in the decision-making process.
The take-away? The involvement and engagement of Chinook in a TRV refusal on its own is not enough to carry the day.
- “Lost Canadians” are lost no more.
Those who were lost are now found. Another Harper era citizenship restriction finally falls before the courts. From the Toronto Star: "In a ruling that critics hope will finally settle the longstanding "lost Canadian" controversy, the Ontario Superior Court of Justice has given the federal government six months to repeal what's known as the "second-generation cut-off" rule and amend the Citizenship Act."
Chris Selley of the National Post eviscerates the long-standing restriction:
"...This is a country that let in 430,000 people in a three-month period this year — somewhat by accident, it seems — and many of those have no connection to Canada whatsoever. Why is the government at war with Canadian parents who happen to live abroad, as so many Canadians do? The immigration minister can grant anyone citizenship he likes — and he does, fairly routinely — and yet the simplest, lowest-profile cases of obviously Canadian children rarely seem to get to the top of his pile."
- Jaskirat Singh Sidhu is one step closer to deportation.
Mr. Sidhu pled guilty and accepted responsibility for a horrific crash that claimed the lives of many and forever changed the lives of many more. I have discussed his case over the past few years, including with Jon McComb; then radio show host Danielle Smith; and two years ago, on a podcast with Chantal Desloges and Cathryn Sawicki.
Mr. Sidhu sought to challenge the decision to write and refer a section 44 report alleging inadmissibility. Given the length of the sentence imposed, he does not have a substantive appeal. His judicial review was heard and dismissed by Chief Justice Crampton of the Federal Court:
[1] The circumstances leading to these proceedings are heartbreaking. I cannot recall any case more truly tragic for everyone involved.
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[4] By all accounts, Mr. Sidhu has demonstrated an extraordinary degree of genuine, heart-wrenching remorse. He now faces removal to India, after he and Ms. Mann spent many years of hard work to establish themselves in Canada.
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[8] Unfortunately, regardless of my determinations, the healing required to return to some form of a better life may become more difficult for some people who wish for a different outcome than the one I reach.
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Does one act define an individual? Perhaps. There is still the possibility of relief from the normal operation of the IRPA. The CJ has with this decision provided a nice runway for a future humanitarian and compassionate application (H&C). He's still a PR until the removal order kicks in (after the Immigration Division inevitably issues same) and the H&C will have to be filed at that moment. However, a filed H&C does not stay removal and the CBSA has a statutory duty to enforce a valid removal order.
The Minister of course can grant Mr. Sidhu a TRP to allow him to remain in Canada notwithstanding his criminal inadmissibility. Conrad Black, a convicted felon in the United States was granted a TRP (by an officer) upon his release from a federal prison in Florida allowing his entry to the country of birth (he had renounced his citizenship years prior, thumbing his nose at then PM Jean Chretien who had blocked his appointment to the House of Lords).
As an aside, an update will be necessary to my book given the FCA decision of Obazughanmwen 2023 FCA 151 and CJ Crampton discussion of same in Sidhu. As the CJ states, the law is now settled and Officers/MD have at most deli meat level thin discretion when it comes to writing reports dealing with serious criminality/organized criminality (the deli meat analogy is, of course, mine and not the CJ’s).
- India-Canada relations are colder than a Winnipeg winter.
This year we witnessed, in real time, the unraveling of ties between two formerly friendly nations. This freeze and deterioration in diplomatic relations will fray the fabric of friendship. Years of bitterness may lay ahead. Not sure how this impasse will resolve.
India suspended visa services for Canadians and I discussed this unprecedented development on CBC News Network.
I discussed this issue with Nicholas Keung of the Toronto Star:
Calgary-based immigration lawyer Raj Sharma said the measures are unprecedented against Canadians.
“It’s like throwing a rock into a pond,” he said. “There’s going to be unintended consequences.”
In addition to the travel disruptions, Sharma said Indian nationals pending deportation from Canada would not be issued travel documents from Indian officials, who were co-operating in the past to receive the deportees.
Canada may also see a spike in asylum claims from Indians, who are involved in Khalistan activities in Canada, just like what prompted the previous waves of Sikh refugees to the country, based on religious persecution."
Thankfully and after the passage of some weeks, India has reinstated visa services. The rift however has led to the expulsion of Canadian diplomats including a large number of visa office staff leaving CHC Delhi short staffed.
India’s reaction to more recent US allegations of an attempted assassination of an American citizen is markedly different to its response after PM Trudeau’s bombshell announcement in the House of Commons.
- It’s 2023 and Bangladesh’s most wanted criminal is still living in Canada.
In a remarkable investigation by the Fifth Estate we learned:
"Chowdhury is currently the most wanted criminal in Bangladesh. He was convicted in absentia and sentenced to death for assassinating the country’s president, Sheikh Mujibur Rahman, in 1975, and helping to plan the massacre of 21 members of the president’s family and household, including his 10-year-old son.
Despite a deportation order issued by Canada’s Immigration and Refugee Board in 2006, Canada has been publicly silent on its reasons for allowing him to stay, driving a wedge between the two long-friendly countries."
- Canada does not have an obligation to repatriate citizens stuck abroad.
The Federal Court of Appeal in Canada sided with the government's stance that the Charter does not require the government to take action to repatriate 4 Canadian men held in Syria. Justice Henry Brown of the Federal Court initially ruled and required Ottawa to request repatriation and issue emergency travel documents, but this was seen as creating a new right for citizens to be brought home by the government, which was corrected by the Appeal Court's interpretation. The Supreme Court declined to hear the case, effectively upholding the decision that the government is not obliged to engage in actions that could be seen as intervening in the affairs of another country, even if the citizens are in distressing or deplorable conditions.
The submission on behalf of the four men said the top court had an opportunity to decide whether Canada has a duty under the Charter to assist Canadians abroad when they clearly face egregious violations of fundamental human rights.
In its own filing with the Supreme Court, the Canadian government said no one disputes that the men face deplorable conditions, but the reason they cannot enter Canada is their imprisonment abroad by foreign captors.
"The Federal Court of Appeal applied settled principles of law and Charter interpretation to unchallenged findings of fact," the government said.
"Especially where there is no participation by Canada in the detention of a Canadian citizen in a foreign country, there can be no obligation under the Canadian Charter of Rights and Freedoms for Canada to secure their release and effect their repatriation."
- I’m still working on Mohamed v. MCI
The applicant, Bhaona Mohamed was a front line health care worker during the pandemic yet the IAD (twice) failed to take her service and the resulting "moral debt" into consideration (Ms. Mohamed was seeking H&C relief to overcome her non-compliance with the residency obligation imposed on all Permanent Residents of Canada). I discussed it at length on the Borderlines podcast and I’m hoping that 2024 will see this matter finally put to rest.
- The global shift against migrants.
Let’s start here at home. There’s been a drop in public support for immigration in Canada.
High levels of support have unfortunately been eroded through deliberate and inadvertent policy choices by this government. From the Toronto Star:
"Two-thirds of Canadians say this country’s immigration target is too high, suggests a new poll that points to how opinions on the issue are taking shape along political lines — a shift that could turn immigration into a wedge issue in the next federal election."
The decline in public support for immigration in the past year is a predictable consequence of governmental policies that have significantly amplified the numbers of temporary residents and immigrants to Canada. Canadians' concerns about affordability and housing are now intertwined with the influx of newcomers. A recent survey by the Environics Institute for Survey Research in collaboration with the Century Initiative reveals that 44% of Canadians believe immigration levels are excessive, marking a rise from 27% just a year prior.
Notably, this shift in public sentiment is the most significant Environics has witnessed in over four decades of polling on the subject. Just a year ago, the Canadian public was overwhelmingly in favor of immigration. However, mounting economic challenges, such as escalating inflation, growing interest payments, and a deepening housing crisis with soaring resale prices and rents, have been intertwined with the surge in immigration, impacting public attitudes.
This change in attitude and the concomitant messaging from our politicians seems to be in step with many other countries. The world it seems is leaning towards restrictive policies. The recent rhetoric used by former President Trump, is particularly concerning:
"(He's) accusing immigrants of “poisoning the blood of our country” in the face of widespread public condemnation linking Trump’s phrase to the “contamination of the blood” concept articulated in Adolf Hitler’s antisemitic manifesto “Mein Kampf.”"
But this vilification of newcomers is not isolated to the United States but is mirrored in other regions where we've seen the ascendance of figures like Geert Wilders in the Netherlands, the enactment of stringent laws by the National Rally (supported by the centrist Macron) in France, the EU’s recent ‘deal’ on dealing with migrants, Viktor Orban's razor-wire policies in Hungary, the UK's controversial (and near farcical) Rwanda refugee plan and other efforts to decrease migration (legal or otherwise), and to go further afield, anti-Syrian/Arab sentiment in Turkiye. These developments collectively make it increasingly challenging for immigrants, who must navigate an ever more complex and often unfriendly international landscape.
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