Citizenship and Immigration Committee on Feb. 25th, 2008

[The Chair, Conservative, Norman Doyle]

We now have a quorum, and I will call our meeting to order.

Today we are receiving a briefing on undocumented workers. We have here today the Department of Citizenship and Immigration, the Canada Border Services Agency, and the Department of Human Resources and Social Development. Our witnesses will be Mr. Les Linklater, director general of the immigration branch; Heidi Smith, director of permanent resident policy and program development; Robert MacDougall, director general of the enforcement programs directorate; and Andrew Kenyon, director general, temporary foreign workers directorate.

Welcome to all of you. I think you are familiar with how we proceed. I'm sure you have opening statements you want to make. So we will proceed in the order you want to make them, and then our committee will engage in some discussion and questions.

Welcome.

[Les Linklater, Director General, Immigration Branch, Department of Citizenship and Immigration]

Thank you, Mr. Chairman.

I also want to thank the committee for its interest in these issues.

The issues of undocumented foreign workers and temporary foreign workers are complex and involve a number of stakeholders across the government of Canada, provincial and territorial governments, municipalities, employers and labour.

Within the Government of Canada, Citizenship and Immigration Canada, or CIC, works closely with both the Canada Border Services Agency, the CBSA, and Human Resources and Social Development Canada, or HRSDC, on these key issues.

I am pleased that colleagues from those two departments are here with us today to respond to your questions.

CIC has the broad responsibility for developing the policies and programs related to the selection of permanent and temporary residents in Canada.

Together with HRSDC, CIC manages the temporary foreign worker program. HRSDC manages from the perspective of labour market impacts and the assessment of employer requests for temporary foreign workers; CIC assesses individual workers against the jobs offered by Canadian employers to ensure that they have the necessary skills and qualifications to perform the work and that they do not pose a criminal threat to Canada or to the health and security of Canadians.

The CBSA has the mandate for all immigration enforcement activities, including removals. Undocumented workers or those here working without legal status are a concern to all departments, given the need to manage access to Canadian territory and the labour market.

Today I would like to provide an overview and ask my colleagues to do the same from the perspectives of their departments.

First I would like to address the issue of undocumented workers.

I think it is very important to underline that most information we have about the undocumented population is not based on hard data. While a number of stakeholders have expressed views on this issue, there is no way of validating their estimates of the size of this population. What we do know is that many undocumented workers have been in Canada for some time--in some cases for many years--while many thousands of individuals are waiting to have their applications to enter Canada processed through normal legal channels.

There is no mechanism under the legislation, the Immigration and Refugee Protection Act, for someone who is illegally in Canada to become a permanent resident legally unless there are exceptional circumstances that warrant an application for permanent residence under humanitarian and compassionate consideration. Normally an undocumented worker needs to leave Canada and apply for legal admission through an overseas mission, with proper authorization, and subject to medical, criminal, and security checks.

I would now like to turn to temporary foreign workers. In 2006 approximately 112,000 temporary foreign workers came to Canada. While final data are not yet available, to the end of the second quarter of 2007 we saw an increase of approximately 25% over the same period in 2006.

In partnership with Human Resources and Social Development Canada, we are enhancing the temporary foreign worker program to make it even more responsive to the needs of Canadian employers. Following a series of administrative measures announced since November 2006--including improved employer outreach, streamlined processes, and increased federal-provincial-territorial collaboration--Budget 2007 provided new funding for CIC and HRSDC to deal with increasing volumes more efficiently and to fill gaps in the current programming, including the need for enhanced employer monitoring and compliance.

We are acutely aware of the need to improve the program to ensure employers are meeting their commitments to workers and that workers have the tools to raise their awareness of their rights and responsibilities.

At the same time, provinces and territories, which are largely responsible for monitoring employment standards and occupational health and safety, are actively engaging on this file. Under the Canada-Ontario immigration agreement, we have been negotiating an annex with the province to allow it to take a stronger role in identifying the temporary foreign workers it requires. The recently signed Canada-Alberta and Canada-Nova Scotia agreements also contain provisions to negotiate an annex on temporary foreign workers in the coming months, including recognition of the need to protect the interests of these workers.

To better support labour market needs, the government announced in Budget 2007 that it would permit, and indeed facilitate, the process of allowing skilled temporary foreign workers, including the skilled tradespeople who are already in Canada as legal temporary foreign workers, to apply for permanent residence without leaving the country. It is the government's intention to apply the same provision to foreign students who have earned Canadian credentials and work experience. We expect that by the time the program is up and running at full capacity, likely within five years, eventually some 25,000 people will be granted permanent residence status in Canada each year through this new mechanism.

In addition, the government has facilitated the entry of temporary foreign workers through various initiatives, such as the construction recruitment external workers services program, or CREWS, which helps to bring skilled construction trades into the Toronto area, and the memorandum of understanding for the entry of temporary foreign workers for projects in the Alberta oil sands, which facilitates the entry of the skilled workers required in that specialized sector.

These measures will help to ensure that our immigration system continues to play its traditional important role in growing Canada's economy. Taken together, these additional pathways, along with improvements to the temporary foreign worker program, should not only improve labour market responsiveness but also encourage the legal movement of workers to Canada.

I would now ask my colleagues from the CBSA and HRSDC to provide you with their perspectives on these issues.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. Linklater.

Mr. MacDougall.

[Robert MacDougall, Director General, Enforcement Program, Enforcement Programs Directorate, Canada Border Services Agency]

Thank you, Mr. Chair, for the opportunity to appear before you today and to provide you with information on immigration enforcement, in particular how it relates to undocumented workers.

The Canada Border Services Agency is responsible for enforcing the provisions of the Immigration and Refugee Protection Act.

Clearly an effective immigration program requires controls. The CBSA's enforcement approach has several layers. As the first layer, migration integrity officers abroad screen documents and persons before they board flights to Canada. Next, border services officers at ports of entry screen those who arrive in Canada. Finally, for those who are already in Canada, inland enforcement officers identify, arrest, detain, and remove those who are inadmissible, including those who work illegally.

Once someone has been found to be inadmissible, they are entitled to various levels of appeal. In addition, those under removal order may apply for a pre-removal risk assessment to ensure that there is no risk to return to their country. Once all avenues of appeal have been exhausted, the Immigration and Refugee Protection Act is clear: a person under removal order must be removed as soon as reasonably practicable.

Controls such as removals ensure that Canada's best interests are taken into consideration in terms of safety and security, the economy, and our humanitarian and family reunification goals. A removals program supports continued compliance and is a deterrent for those who may choose to ignore our laws.

The CBSA prioritizes its removals. The first priority is those who pose a threat to our national security, who are involved in organized crime or crimes against humanity. The next priority is lesser criminality, followed by failed refugee claimants and all inadmissible persons, such as those who work without permission to do so.

The CBSA follows the priority system as closely as it can, but there may be times when a lower priority removal may be processed. For example, when work on higher priority cases has gone as far as it can, officers must move down the priority line. As well, removal priorities can shift, depending on when travel documents or the pre-removal risk assessment decision become available.

Enforcement activity, including removals, is not based on religion, race, nationality, ethnic origin, or gender. The country of nationality or the religion of persons being investigated by CBSA are not considered when deciding to pursue a case. Canada's removal policies are universally applied and do not target such specific groups as illegal workers.

In conclusion, Mr. Chair, the ability to remove inadmissible people is vital to the safety and security of Canada. Any deviation from this practice will act as a draw factor for illegal migration to Canada and will jeopardize the integrity of the immigration program.

Thank you.

[The Chair, Conservative, Norman Doyle]

Thank you, Mr. MacDougall.

Mr. Kenyon.

[Andrew Kenyon, Director General, Temporary Foreign Workers Directorate, Department of Human Resources and Social Development]

Thank you, Mr. Chairman and members of the committee.

I would like to thank the committee for this opportunity to speak to you on the issue you are studying, that is, undocumented workers and the Temporary Foreign Worker Program.

My name is Andrew Kenyon and I am the Director General of the Temporary Foreign Workers Directorate in the Skills and Employment Branch of Human Resources and Social Development Canada.

Mr. Chairman, today I will be speaking to HRSDC's role in the temporary foreign worker program, which we co-deliver with Citizenship and Immigration Canada. I'll explain briefly how the program functions within the Canadian labour market and how HRSDC manages its portion of the program in order to balance employer needs with those of Canadian and foreign workers. I'll also speak to what generally foreign workers do here, to certain challenges we face in operating our portion of the program, and to some new initiatives that we're undertaking to address those challenges from the HRSDC perspective.

HRSDC's role in the temporary foreign worker program is to assess temporary job offers by Canadian employers to foreign workers against a set of criteria and to evaluate the potential labour market impact of those job offers. The HRSDC assessment is called a labour market opinion, and it's provided to the employer and to Citizenship and Immigration Canada. The labour market opinion is “positive”--meaning there's no adverse impact on the labour market--“neutral”, or “negative”.

The labour market opinion, or LMO, is developed based on the analysis of factors found in the Immigration and Refugee Protection Act regulations. For example, did the employer conduct reasonable efforts to hire or train Canadians for the job? Is the foreign worker filling a labour shortage? Are wages and working conditions comparable to those offered to Canadians working in the same occupation? And will the hiring of the foreign worker affect a labour dispute or the employment of any Canadian worker involved in a labour dispute?

The department issues labour market opinions to cover periods as short as two days or as long as three years for high-skilled workers. For low-skilled workers, for example, long-haul truck drivers, meat packers and general labourers in construction, changes were announced in February 2007 allowing the extension of the labour market opinion period from 12 up to 24 months, with wages being reviewed after 12 months.

Labour market opinions are required for approximately 50% of the work permits issued by Citizenship and Immigration Canada. The main exceptions are workers who come in under international agreements such as the North American Free Trade Agreement and intra-company transfers.

Mr. Chairman, to avoid potential misperceptions about the temporary foreign worker program, it's important to note two things. First, the program is driven by employer requests and there are no numerical limits or quotas. Second, HRSDC processed LMOs for over 163,000 workers in 2006. Despite this, temporary foreign workers represent less than 1% of the Canadian labour force.

To give you an idea of who the temporary foreign workers are in Canada today, the United States is Canada's top source country for temporary foreign workers, followed by Mexico, France, the United Kingdom, and Australia. About 45% of foreign workers entering Canada are in the managerial, professional, entertainment, and technical trade occupations. About 55% are in the lower-skilled occupations, and nearly half of these workers are seasonal agricultural workers who meet the temporary needs of Canadian agricultural producers during peak harvesting and planting periods, when normally there are shortages of Canadians.

I'll move on now to the challenges we face and some of the solutions we're initiating.

One of the biggest challenges we face is the steadily growing demand for labour market opinions in certain regions and sectors. This, combined with the Immigration and Refugee Protection Act requirements for case-by-case assessments, has resulted in backlogs and increased processing times, notably in Alberta and B.C.

Program changes have been announced to address the situation, including the creation of lists of regional occupations under pressure for B.C., Alberta, Ontario, and Quebec, and others as they are developed; ensuring employers will have shorter and simpler advertising requirements prior to hiring temporary foreign workers where shortages are clear and ongoing; the creation of online labour market opinion applications; concurrent processing of labour market opinions by HRSDC and work permits by Citizenship and Immigration; the creation of federal-provincial working groups in Ontario, B.C., Alberta, and Manitoba; and most recently, the expedited labour market opinion process, allowing eligible employers to receive labour market opinions in specified occupations in B.C. and Alberta much more quickly than under the regular LMO process.

In January of this year Minister Solberg announced the expansion of the E-LMO pilot project from the original 12 occupations to 33 occupations, representing 50% of the total volume of labour market opinion applications from employers in B.C. and Alberta.

These changes are taking effect and we expect to see the benefits, particularly with the addition of funding from Budget 2007. However, with the total number of TFW requests up 100% between 2000 and 2006, and with a 200% increase in Alberta and a 40% increase in BC in the first six months of 2007 as compared with the same period in 2006, the pressure is likely to continue to grow.

An additional challenge we face is to ensure a balance between the facilitative elements of the program and adequate worker protection. As I noted earlier, temporary foreign workers have the same protections as Canadian workers under federal and provincial laws. Provinces and territories have the primary responsibility for establishing and enforcing employment standards and occupational health and safety, such as wages and working conditions.

Nevertheless, we're working with Citizenship and Immigration Canada to improve information for foreign workers regarding their rights and recourse mechanisms. We are producing and releasing a pamphlet to foreign workers in a number of languages to advise them of their rights and the recourse mechanisms available to them.

As well, HRSDC is implementing improved information to employers about their responsibilities and the requirements of the program. We're also developing information-sharing agreements with the provinces to allow us to identify and share information where there have been violations of labour standards.

We still have a lot of work to do. What we're hearing is that we are moving in the right direction.

I'll conclude on that note.

Thank you, Mr. Chairman.

[The Chair, Conservative, Norman Doyle]

Did you mention your estimate of the number of undocumented workers we have in Canada? What would the estimate be of that?

[Les Linklater]

Mr. Chair, neither CIC nor stakeholders are really able to determine the exact number of persons who are in Canada illegally, including undocumented workers.

There is no hard data, as I said in my opening remarks, to accurately support an estimate of undocumented workers or illegal persons. Estimates range from 80,000 to 500,000, depending on the source, and while media and the stakeholders often cite very high numbers, these are not based, as I said, on supportable evidence.

What the department has done relates back to 2005, when we compiled our own estimate of undocumented workers, which we calculated to be between 80,000 and 120,000. This was an estimate arrived at after consulting with industry associations, labour groups, and regional CIC offices across the country.

Really, for us to have an accurate estimate of this population, Canada would need to have exit controls so we could track the entry and exit of people and therefore understand how many people have overstayed.

[The Chair, Conservative, Norman Doyle]

Okay. Thank you.

We will go now to Mr. Telegdi.

Mr. Telegdi, you have seven minutes, please.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Thank you very much, Mr. Chair.

Actually, that's a good point to start off with. When we did touring on this, our estimates were from 200,000 to 500,000.

You mentioned some figures here that say we're taking in 165,000 folks, 45% of whom are high-skilled and 55% of whom are low-skilled.

I really want the committee members to understand this. The low-skilled folks are the ones who were eliminated as possible immigrants to Canada at the time the point system was changed. Just so the committee members know, the committee was overwhelmingly against the way the point system was changed. It was the classic case of a minister who knew little being convinced by the officials that it was the way to go.

If you start looking at the low-skilled workers and the way you categorize them--not the professionals--you're talking about 90,000 people. The new point system has been in operation now for a long period of time. So if you multiply 90,000 people by five years, you have 450,000 people.

The problem is that the system is not very functional, and that's why there's such a huge shortage. It doesn't matter where you go in this country. From the Maritimes, where fish plants are threatening to close down, to the west coast, to up north, we're in a real mess. And it comes back to the point system. Skilled trades have a hard time coming in. Labourers have a hard time coming in. So having the point system and the way it was changed has created a real problem.

There is talk about protecting Canada and what have you and protecting security in the country. Can you tell me how many people we are trying to deport right now because of criminality, Mr. MacDougall?

[Robert MacDougall]

I can tell you a little bit about 2006-07 and the record for that year. There were 12,636 people removed from the country, and 15% were criminals. Therefore, we're looking at around 1,900 or just under 2,000.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

No, I don't want to go in the wrong direction. Let me clarify.

How many people have we identified as criminals, right now, who have had status in the country as permanent residents, but because of their criminal activity, we are in a position to deport them or the government is taking action to get them out of the country? How many of those people do we have?

[Robert MacDougall]

I don't have an exact number of criminals we would be working on that I can give you right now. We have a working inventory of around 22,000 who are removal ready right now. About 8% of those in the working inventory who are ready for removal have criminal backgrounds.

[Andrew Telegdi, Liberal, Kitchener—Waterloo, ON]

Just so we totally understand each other, and I expect that you will provide the committee with the answer, right now there are thousands—2,000, 3,000, 4,000—of people who have status in Canada, but because of serious criminality concerns, Canada is rightfully trying to get rid of them. There's a real bottleneck, and the bottleneck is not being able to get a date with the Immigration Appeal Division. They can't be processed until they have their hearing before the Immigration Appeal Division. All permanent residents are entitled to a hearing prior to being removed from the country. I really want to get a handle on those numbers, and I want you to provide that to us, because I know you have the figures and I know they're in the many thousands.

My concern is this. Instead of focusing on those folks who we rightfully have identified are a concern because of criminality and who, to create a more peaceful community in Canada, if you will, we want to get rid of--we can't get rid of them because of the lack of positions on the Immigration Appeal Division--we're getting rid of undocumented workers, a problem that we have created because of the point system, which doesn't work for the economy. They seem to be getting all the priority, even though it hurts the economy. It would seem to me that if we're going to get rid of folks on a priority basis, it should be at the level of the ones we want to get rid of because of criminality.

The other issue is that the previous minister, not of this government but of the previous government, was working on some program of regularization that was trying to come to grips with undocumented workers. How far did you get in that process? I know it was quite a way along.

[Robert MacDougall]

I guess that question would probably be for my colleague. But if I may, Mr. Chair, I would just respond to the criminal element briefly.

I'd just like to say that when you look at how we remove people.... We have a priority list, as I mentioned, which starts off with the serious criminals and works its way down to failed refugee claimants and then others in an inadmissible class that would include illegal workers. So that's our priority system. When we look at the history of what happened last year, we look at a total of, as I mentioned, about 8% in the global inventory, if you like, of those people to be removed who have a criminal history.

Last year, of the 12,636 people removed, 15% were with criminal backgrounds. I think what that demonstrates is that certainly the priorities of removing criminals are being respected in our regional offices. They did remove a larger percentage than exists in the overall global inventory, and of course then they worked their way down to the others.

So I just wanted to provide you with those numbers, but I'll pass on the second part of your question.

[The Chair, Conservative, Norman Doyle]

His seven minutes are up, but I think we need a response here.

[Les Linklater]

Mr. Chair, just to clarify, in 2006, while HRSDC processed 165,000 labour market opinions, in fact, only 112,000 temporary foreign workers came into Canada, and of that number, approximately half were high-skilled and half were low-skilled.

With regard to the selection criteria and avenues for low-skilled individuals to come into Canada, there are a number of avenues that are open to them. The first would be provincial nominee programs, where we have extensive documentation of strong provincial history, particularly in Manitoba and Atlantic Canada, with the nomination of low-skilled workers, as well as the arranged employment scheme, which provides bonus points to individuals who have secured a permanent job offer validated by colleagues at Human Resources and Social Development.

At the same time, Budget 2007, as I mentioned in my opening remarks, has announced the government's intention to create a new mechanism to allow temporary foreign workers, including the skilled trades and other individuals in technical occupations, to transition to permanent residents.

With regard to the question related to the previous government's activities on this file, work was indeed carried out in the past on possible initiatives to regularize the status of undocumented workers. In 2005, a draft memorandum of understanding with the undocumented workers coalition was developed at the working level. However, it was never signed and it was not endorsed by the previous government.

[The Chair, Conservative, Norman Doyle]

Thank you.

Mr. St-Cyr.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

Thank you very much, Mr. Chairman.

Thank you all for being here today in this rather subdued meeting room. I have a few questions for either Mr. Kenyon or Mr. Linklater, for the person who feels more qualified to respond. These questions pertain to the Temporary Foreign Worker Program. I merely want to understand the mechanics of this program.

You mentioned that when a request is made, a labour market opinion is required. The request comes from an employer who is experiencing a labour shortage and wants to hire foreign workers. If I understand correctly, it is the employer who requests permission to hire foreign workers.

Is that how things work? Fine.

So, taking into account the criteria that you listed, you will either grant, or deny, this employer the right to hire foreign workers. Is that correct? So far so good.

Of the four criteria mentioned in your presentation, there is one that appears very important and obvious to me:

Are wages and working conditions comparable to those offered to Canadians working in the same occupation?

I would image that the aim here is to avoid a situation where companies hire cheap foreign labour.

Practically speaking, how do you ensure that this criterion is being satisfied?

[Andrew Kenyon]

Thank you for your question.

What we call the “prevailing wage”, the wage that Canadians would be paid in that occupation, is an average based on a variety of data sources. We draw data from EI databases to identify wages that Canadians are paid in that occupation. We look at employer surveys. We look at provincial wage surveys as well. Both Alberta and B.C. have extensive information on wages that are paid for a variety of occupations. In some instances we'll go so far as to do surveys of competitors in a particular region to determine what people in that occupation are being paid.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

As far as the other criteria are concerned, for example, “Is the foreign worker filling a labour shortage”, I imagine you still use the same kind of market data?

[Andrew Kenyon]

To determine whether there is a shortage of workers, one of the key places we look is whether there are a number of Canadians currently receiving employment insurance because they are unable to find jobs in their occupation. If the number of Canadians on employment insurance in a given region is relatively high, that would indicate that there's not actually a shortage of workers in that occupation.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

So then, you can conduct a broad-based labour market analysis to arrive at a decision. However, at the same time, you must have rather extensive knowledge of the company in order to make that decision.

In order for you to get an answer to the question “Did the employer conduct reasonable efforts to hire or train Canadians for the job?”, the employer must provide sufficient information in his request and the department must have sufficient knowledge of that employer to respond appropriately.

[Andrew Kenyon]

One of our main tasks in assessing an employer request is insisting that an employer provide proof that they have undertaken extensive advertising in local newspapers, on the national job bank, and other sources, depending on the type of occupation and the region in which they're operating. They do actually have to provide proof of the work they've done in that area to ensure that Canadians are not missing out on employment opportunities.

[Thierry St-Cyr, Bloc, Jeanne-Le Ber, QC]

How do you assess the last criteria which concerns labour disputes?