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The basic tenets that are cornerstones of Canadian immigration law

Back in 2005, Citizenship & Immigration Canada (“CIC”), which was the department that was responsible for both the policy and operations mandate of Canada’s immigration program, had its enforcement and port of entry (or border) functions hived off into a new agency called Canada Border Services Agency (“CBSA”).

CBSA is an amalgam of a number of different units of several departments, including Canada Customs which was previously part of the now Canada Revenue Agency. The two entities, CIC and CBSA, have a joint operations mandate with regards to immigration, although CIC retains the exclusive policy mandate. Which one a prospective immigrant/worker deals with largely depends on where they are. If they are dealing with a visa office abroad, or an immigration office within Canada, they are likely dealing with CIC. If they are facing deportation or other kinds of enforcement action, or seeking entry at the border, they are dealing with CBSA.

A third agency, Service Canada’s Foreign Worker Unit, which is part of the Ministry of Human Resources and Skills Development Canada, is responsible for Labour Market Opinion.

The Immigration & Refugee Protection Act (“IRPA”)

“IRPA“ refers to the Immigration & Refugee Protection Act, which is the key piece of legislation that governs Canadian immigration. Passed in June of 2002, this legislation was a massive overhaul of the Canadian immigration system and brought in many important changes, including the creation of “permanent resident cards” to replace old Records of Landing, as well as modernizing the regime regarding residency obligations, spousal undertakings and many other key components of the immigration system. The last time this had been done was the late 1970’s.

Landed Immigrants/Permanent Residents

“Landed Immigrants” and “Permanent Residents” are one in the same and refer to the status that new immigrants to Canada have when they are admitted as permanent settlers. Permanent residents can live any where, work any where and have the same entitlement to such rights as health care, social insurance numbers, employment insurance, etc. as Canadian citizens.

The only difference is that they cannot have a Canadian passport, vote or stand for office, and must meet a residence obligation in order to keep their status (730 days of physical presence in any 5-year period). If they have lived in Canada for three years out of four, they may apply for Canadian citizenship.

Selection and Admission

When CIC considers an application, it always makes two decisions: a “selection decision” and an “admissibility decision”. The selection decision depends upon the category under which the applicant is applying. For example, in the case of an investor immigrant, do they have recent business experience and sufficient net worth are the key questions. In the case of a skilled worker, English language ability, education and age are often determinative. If someone is a refugee, the questions is do they meet the definition of Convention refugee as defined in the United Nations Convention that Canada signed back in the 1950’s.

The admissibility decision is pretty much the same for all applicants and, broadly speaking, it means “Is a person admissible to Canada?” Here, a person must prove that they have no recent criminal record, they pose no security threat, they do not have serious health problems, they can establish their identity with credible documents, they are not a member of any groups whose goals are not in line with our democratic values.

Temporary Foreign Workers vs. Permanent Residents

Foreign nationals cannot work – or even obtain a work permit – in Canada, unless their perspective employer has obtained a Labour Market Opinion from Service Canada’s Foreign Worker Unit that the hiring of this individual will not have a negative impact on the Canadian labour market.

Whereas the above applies to the vast majority of people, there are exceptions based on Canada’s bilateral treaties with other countries for such things as holiday programs, free Trade agreements that include a labour mobility provision (for example the North American Free Trade Agreement). Once a foreign national has a work permit, their ability is limited to working within the parameters of their initial work permit.