May 25, 2022

New COVID-19 Strains Causing Pains for Immigration Canada: Undocumented Canadian Immigrant Programmes is Now the Time?

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Posted by Mario Bellissimo - Bellissimo Law Group PC

A number of months ago I wrote the race is on. 

On one side new variants of Covid-19. On the other side, health care professionals and scientists scramble to adapt testing, vaccine development/responsiveness and effective treatment. 

Caught right in the middle is our nation’s economy (record high 13.7% unemployment in May) with unemployment hovering between 8 and 9% and by extension Canada’s immigration program.  Immigration, Refugees and Citizenship Canada (IRCC) have been bold in their attempts to stem the tidal wave that is COVID-19.  Despite extensive modernization efforts, the pandemic is outpacing IRCC.

Now we see staggering backlogs and a scramble to address our immigration issues. 

I stand behind that we need to consider an Undocumented Canadian Immigration Programme as part of larger initiatives. 

I remain optimistic that improvement is possible, through such programmes and leveraging new technology like Artificial Intelligence (AI) but it will require measured study, resources and most importantly a robust legislative framework.

Efforts to transform immigration delivery must include equal measures being put in place for transparent (plain language), responsible (restrictions on certain algorithms), and innovative AI governance (recognizing historical data is the new oil that drives the technology) by virtue of legislation.  The legislation must promote protection of fundamental rights in the use of AI, robust and secure technology, the production of an Algorithm Charter (like that in New Zealand), specialized training thresholds, external audits with enforcement powers and mandatory external consultation to list a few of the ten recommendations.

Training for one, must be undertaken that is reflective and responsive to vulnerable persons and groups, such as racialized workers, LBGTQA+, women, persons with disabilities, and children including legislated personnel allocations to ensure diversity and inclusion balances are maintained for those that train and drive the technology.  It is essential to have for inclusive, diverse and representative programmers.  

The need to work with all stakeholders is acute given the rapidly evolving challenges ahead.  IRCC is staffed by many hard-working well-intentioned individuals that want to make a positive change.  Our counsel, academic, and AI community in Canada are also well positioned to make a meaningful contribution to IRCC.

If we put in the collective work now, pressing for a strong legislative framework, collaboration, oversight, transparency, and responsible implementation, we have the potential to become a world leader. This is an exciting time to reimagine, revolutionize, and reorder our Canadian immigration processes in a manner that preserves our international reputation as a country of invitation, fairness, and openness while also delivering an unprecedented “just in time” Canadian immigration program predicated on a strong legal and technological foundation grounded in legislation. A foundation undisturbed, no matter the international and technological pressure that may be on the horizon.  So, what about undocumented workers?  Bellissimo Law Group PC sent our recommendations to the Minister’s Office and other government officials.  Our recommendations included a look back for a look forward:

Previous Amnesty Programmes

Since 1960 Canada has developed at least nine programmes directed at regularizing the status of undocumented persons:

  1. Chinese Adjustment Statement Program:1960-1972
  2. Section 34 and the Immigration Appeal Board Act: 1968-1973
  3. Adjustment of Status Program:1973
  4. Special Regularization Program for Haitians in Quebec: 1981
  5. Minister’s Review Committee:1983-1985
  6. Administrative Review 1986
  7. Backlog Clearance Program 1989
  8. Deferred Removal Orders Class (DROC): 1994-1998
  9. Special Regularization Procedure for Algerians in Quebec: 2002

They ranged in size and scope from regularizing as few as 900 persons to over 100,000.  Many required in person applications, good moral character some form of lengthy residency and a need for more workers, response to political or backlog pressure and market adjustment were most often the impetus behind the measures. The 1960 programme guaranteed no prosecution or detention while the 1973 program was well advertised and as such received considerable response but only allowed a sixty-day period in which to apply.  As a result of the Backlog Clearance Program from 1986 to the end of 1992 approximately 160,000 applications were accepted.

The 1986 program was efficient and effective but there was a serious flaw in that there was a significant delay in implementing a new refugee determination system that would allow for an oral hearing for each applicant. During this delay, tens of thousands of new refugee applicants flooded into Canada, believing that Canada was offering a kind of amnesty.  The 1973 programme also led to a significant backlog. 

  To address many of the competing and complex interests involved as well as to avoid the mistakes of the past, a two-tier approach may be considered.  One category for persons deemed eligible for permanent residency consideration and the other for a temporary work permit program.          

Permanent Resident Class – Programme I

Many factors could weigh into proposed criteria including length of residency, employment, criminality and security, family, establishment and integration.  It should be noted that any programs must exempt employers from any prosecution. Any such programme must consider the competing interests of addressing the acute need for such a program but deterring future unlawful migrants.    In short, the criteria must walk the line between competing interests – much like Canada’s H&C program. 

Potential Criteria

   Mandatory

  1. Any non-status person living in Canada for 3 years or more (similar to 1994 programme);
  2. Applicants would have 120 days to apply (similar to 1973 programme) or upon completion of programme II (see below) after they receive an invitation to apply (ITA) preceded by an expression of interest;
  3. Applicants to apply online within Canada;
  4. Must have identity document (similar to 1981 programme);
  5. Must be between the ages of 22 to 49 unless they apply by virtue of programme II (see below);
  6. Must pass security, medical and criminal checks (most programmes);
  7. Must have applied for a status document after entry to Canada including an extension, protected person claims or in Canada permanent residency application (similar to 1983 programme);
  8. Special consideration to front-line workers;

Additional Non-Mandatory Factors or Sub-groups resulting in additional points:

  1. Currently employed or subject to a positive Labour Market Impact Assessment (LMIA) (similar to 1994 programme); and
  2. Must not have accessed social assistance excluding disability (1994 Programme).
  3. Applicable language levels (1981 programme);
  4. Family in Canada additional points (1983 programme);
  5. Integration and establishment (1986 and 1989 programmes);
  6. Positive history with CBSA – any history of active avoidance i.e., failure to attend an immigration hearing, interview.

Important Considerations

  1. Agreement from CBSA not to remove during processing of permanent residency application.
  2. Appeal of a refusal would go before the Immigration Appeal Division (IAD) so program would have oversight.  Given pending backlog at IAD may not be a popular position.

This recommended class balances a potential need for a pool of immigrants but also imposes various backward working criteria to ensure we are landing only those identified as a need while attempting to preserve elements of the integrity of our immigration program.  As suggested an expression of interest stage followed by invitations to apply for permanent residence in Canada can ensure program targets, control and no backlog.  At the same time, a one-time program will not sufficiently deal with the need and if we are to learn from past programmes there must exist a fail safe or secondary programme of a longer duration to resolve any gaps, oversights and unresolved needs in the first programme.

VII. Temporary Worker Class – Programme II

Criteria

Mandatory

  1. One year pilot project;
  2. Any non-status person living in Canada for 1 year or more;
  3. Applicants to apply online – point system resulting in ITAs;
  4. Must have identity document (similar to 1981 programme);
  5. Must pass security, medical and criminal checks (most programmes);
  6. Can apply for permanent residence after two years and must apply within 180 days;
  7. Must be sponsored financially by a person or an organization (similar to 2002 programme);
  8. Employment skills in areas of need special consideration – again frontline workers;

Non-Mandatory Factors

  1. Bona fide job offer or subject to a positive Labour Market Impact Assessment (LMIA) (similar to 1994 programme); and
  2. Must not have accessed social assistance excluding disability (similar to 1994 programme).
  3. Language skills (1981 programme);
  4. Family in Canada (1983 programme);
  5. Integration and establishment (1986 and 1989 programmes); and
  6. Positive history with CBSA – any history of active avoidance i.e., failure to attend an immigration hearing, interview.

Important Considerations

  1. Agreement from CBSA not to remove during processing of permanent residency application.
  2. Appeal of a refusal would be an application for leave before the Federal Court of Canada.

 Conclusion

Canadian demographics continue to support the need for a huge influx of immigrant labour.  Canadians are not making up for gaps in the labour force for a myriad of reasons. 

If IRCC does decide to go down this road, it is incumbent upon the government to launch the initiatives in conjunction with any new policy a comprehensive communication and educational campaign to allay such concerns with ample notice.  If implemented effectively, in the future, these programmes will not be perceived as rewarding poor conduct, but potentially a necessary and innovative response to an incredibly challenging time.

I end as I began.

Undocumented Canadian Immigrant Programmes Is Now the Time as well as other initiatives?

Yes

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