Citizenship and Immigration Committee on Oct. 20th, 2016

[The Vice-Chair, NDP, Jenny Kwan]

Committee members, we're going to get started. As you may know, our regular chair is tied up in the House of Commons. I believe he is speaking to a motion at this moment, so he'll join us as soon as he can. In the interim, I will chair this portion of the committee meeting.

First, I'd like to thank all our witnesses. We have three witnesses here and one on video conference. We will begin with Jamie Liew, immigration lawyer and law professor from the faculty of law, common law section, University of Ottawa; also Lobat Sadrehashemi, lawyer; and then we will have Patricia Wells, barrister and solicitor.

Lobat and Jamie will get seven minutes together, and then Patricia Wells will get seven minutes on her own. Then Anabela Nunes on the videoconference will get seven minutes on her own.

We will begin. Jamie.

[Jamie Liew, Immigration Lawyer and Law Professor, Faculty of Law, Common Law Section, University of Ottawa, As an Individual]

Thank you for inviting me. I'm here to talk to you about one provision in the regulations and particularly section 117(9)(d). This provision defines who is not in the family class and therefore persons who are not eligible to be sponsored by a permanent resident or a citizen of Canada through the imposition of a lifetime ban on sponsorship.

This provision does not apply to refugees only but everyone who wants to bring family to Canada.

We are told that this rule aims to protect the integrity of the immigration system by preventing misrepresentation in family reunification. Under this rule, if an applicant does not disclose the existence of a family member at the time of their immigration application, irrespective of whether they came as a refugee or economic migrant, they are subject to a lifetime ban and can never sponsor that family member, even if they are genuine family members.

When a law purports to combat a problem, many of us take for granted that it is doing so effectively and also that it is not harming people.

When we are talking about section 117(9)(d), the research that I and some others have conducted shows a completely different picture. There are five reasons why section 117(9)(d) should be repealed.

First, the evidence shows that the problem of fraud in family reunification is benign. And looking at the reasons for non-disclosure and non-examination, 90% of cases that had section 117(9)(d) applied to them had nothing to do with fraud but involved tragic and heartbreaking reasons. There are five general headings of reasons why people don't disclose their family members. The first is misunderstanding, the second is failure to update an application, the third is fear of exposure, the fourth is lack of knowledge or bad advice, and the fifth is lack of awareness a child existed at the time.

Second, the provision does not provide any discretion or flexibility on the part of the decision-maker to exclude cases where fraud is clearly not an issue. And while the government has pointed to alternative remedies such as humanitarian and compassionate assessments, our research reveals a disturbing finding that this option is applied unevenly. At best, the option provides relief to only half of the 90% not engaged in fraudulent activity. Further, where relief is given, it means repeated attempts through multiple applications, appeals, and therefore extremely lengthy separation, not to mention the high costs of legal support.

In our research, approximately 45% of successful cases had to wait five years or more to be reunited with family. We have observed one ongoing case waiting for 16 years and counting.

Third, this exclusion clause has prevented families from reuniting with their children, despite the best interests of the child clearly being reunification.

Fourth, the regulation not only imposes family separation, but also places a chill on persons seeking to bring their family to Canada. This is because applicants fear they will lose their status when they submit an application and where the regulation applies.

Finally, the immigration system already has in place tried-and-true mechanisms for dealing with misrepresentation. This can be found in section 40 of the act.

For all these reasons, the status quo is not acceptable. The law as it's stated now is overbroad, arbitrary, and harsh. The provision is simply not needed, given that the problem of fraud is overblown and mechanisms are already in place to deal with misrepresentation. Not only does this exclusion clause erode the humanitarian and compassionate objective of reunifying families provided by the act, the provision does extreme harm by permanently separating genuine family members. It penalizes vulnerable individuals, including children, with the pain of separation for a lifetime.

Thank you.

[The Vice-Chair, NDP, Jenny Kwan]

Thank you very much.

We'll move on to Ms. Sadrehashemi.

[Lobat Sadrehashemi, Lawyer, As an Individual]

Thank you for inviting me to testify.

In my time I will address two issues that touch the core of the lives of many thousands of immigrant women: conditional permanent residence for sponsored spouses; and the unacceptable delays in processing the permanent resident applications of live-in caregivers.

This committee has recently heard from Minister McCallum that the government is planning to move forward with the regulatory amendments to eliminate conditional permanent residence for spouses. This issue is very close to my heart because I have seen first-hand in my office women who are suffering through making the awful decision of remaining in abuse or living with the fear that they may lose their status in Canada.

I will make three points on this issue. First, what we should do right now, even before amendments are passed into regulation; second, what is required in the amendment; and third, the kind of education that will be required to implement this change effectively.

We must act now, even before regulatory change comes into effect. This measure has been in place for four years. We know women are staying in abusive relationships because of it. If the government is committed to eliminating it, it can take a number of actions right away.

On a daily basis, people enter Canada as permanent residents and are told their status is conditional on living with their spouse in a conjugal relationship for two years. We should not allow for one more woman to believe that she must endure abuse or risk losing her status. Officials should be providing a letter on arrival explaining that no action will be taken against them if they breach the conditional requirement.

Second, IRCC and CBSA could issue an operational bulletin directing that investigations be halted on breaches of conditional permanent residence requirement. As to the content of the regulatory amendment, the amendment has to be the elimination of the conditional category altogether. The minister has said this is what he will be proposing. Nothing short of this can be accepted.

The amendment also has to deal with retroactivity. No one should have to live with the perpetual fear that they could be reported for having breached the condition in the past. This fear of reporting is a tool used by abusers. We should be able to tell our clients that without a doubt they will not be subjected to an investigation for breaching this condition.

Lastly, the damage of this provision is not cured simply by changing the law. The idea that you must live with your spouse for two years is now very ingrained in communities and I have no doubt that the legend of conditional permanent residence will continue. To be effective, this type of change requires a serious multilingual communication strategy that makes it clear that the government is not requiring you to live with your spouse to maintain your status.

On another topic, I would be remiss not to state to a committee studying family reunification that something must be done to deal with the totally unacceptable backlog of processing for permanent resident applications of live-in caregivers. I checked yesterday; the average processing time is 51 months, so four and a half years. This is after they've already been separated from their spouse and children fulfilling the two-year work requirement.

For other economic categories, it's six months. The requirements are the same: medical and criminal checks, and examination of overseas dependants.

I heard Minister McCallum say to this committee that there would be a general effort to reduce the backlog but the focus would be on nuclear family sponsorships, and not on the caregiver category. If we value this program, we have to do something about it. The backlog is at a point where it requires a targeted effort.

Thank you.

[The Vice-Chair, NDP, Jenny Kwan]

Thank you very much.

We will move on to Ms. Patricia Wells.

[Patricia Wells, Barrister and Solicitor, As an Individual]

Thank you. I come to this committee with a background of about 32 years as a refugee and immigration lawyer. I deal a lot with the Spanish-speaking community, so I have a lot of experience with people from Central and South America, but also other parts of the world.

I want to talk today about a case that comes from a different part of the world, the Philippines, and it's a case of a live-in caregiver. I want to use this case to illustrate two problems that I would like the committee to deal with.

One is the gap in the legislation about processing of overseas dependants of people who have made applications in Canada on humanitarian and compassionate grounds, H and C.

The other is about the age of dependency. Also throughout I think you'll hear, from all the submissions, that the delays in processing are causing serious issues in many of the programs we deal with.

In the case I'll cite, Marcellina was a nanny who came to Canada in 1999 as a live-in caregiver. As was just mentioned, live-in caregivers are able to bring their families after they have satisfied certain requirements. They can be landed in Canada with their family members whether they're overseas or not. Unfortunately for Marcellina, she was not able to be landed as a live-in caregiver under that program, because her husband was found to be medically inadmissible.

That turned out to be a mistake, later on. He was diagnosed with liver failure, but it turned out to be kidney stones. In the meantime she lost her ability to apply through the live-in caregiver program and therefore was obliged to make an application on humanitarian and compassionate grounds. The shift from being a live-in caregiver to applying on H and C grounds meant that she lost the ability to include her children in her own application for permanent residence, and that was catastrophic for Marcellina and her children.

Seventeen years later, her children and her husband were finally interviewed by the Manila visa office and it was found that there were no humanitarian reasons why the family should come here, even though she had fought and fought for years to be able to bring them. The reason so many caregivers choose Canada is that they know they'll be able to bring their families with them once they meet the requirements. In Marcellina's case, the only thing that was different, that made her not able to bring her children, was the fact that she was eventually landed on H and C grounds and not as a live-in caregiver.

In the submission I'm making, I recommend that section 69 of the immigration and refugee protection regulations be changed to allow people who are landed in Canada on humanitarian grounds to have concurrent processing for permanent residence of their family members overseas. That would not only have made a big difference for Marcellina but will make a big difference for many other people.

Concerning the delays, I'll just briefly say that now the delay is 51 months for a live-in caregiver. At the time Marcellina applied, the delay was much shorter, and to review her H and C application took five years. Then it took another year for her to get her papers so that she could sponsor her family, and by that time all her children were too old to be sponsored under the rules. As I say, it was devastating for the whole family.

I would like to briefly deal with the age of dependency. In 2014 the maximum age for a dependent child changed from 22 to 19, which means that children aged 18 and under are now eligible but those 19 and over are not. I know that the government has announced and reiterated that they will be changing this back to the former maximum age of 22. I hope they will also include the other provisions that used to apply before 2014, allowing children of any age to be considered dependents as long as they're still in post-secondary education. It seemed to work well. Again this change has made a big difference in people's family lives and their decisions about whether they can come to Canada.

I would urge that whatever legislative changes are needed be made as soon as possible, but in the meantime, there have to be some interim measures, which can be done through ministerial instructions or through policy change, to allow people who are now facing separation from their family members, or their children who are 19, 20, or 21 right now, to immigrate with the rest of their family.

So, if any interim measures could be made, it would be very good for the families and very good for the country as a whole, too.

I'll leave it there.

Thank you.

[The Vice-Chair, NDP, Jenny Kwan]

Thank you very much, Ms. Wells.

We will now go to Ms. Anabela Nunes, who is with the Working Women Community Centre, on video conference from Toronto.

[Anabela Nunes, Settlement Counsellor, Working Women Community Centre]

Good afternoon, and thank you for inviting me.

My name is Anabela Nunes, and I'm a settlement counsellor at Working Women Community Centre. Part of my role as a settlement counsellor is to provide accurate and up-to-date information regarding various immigration programs to anyone who seeks this type of service.

For the past five years, our centre has seen an increase in the number of people looking for assistance with the family reunification program. It is important to clarify that we do not provide legal advice to our clients. Our role is simply to guide them through the process and review applications for their completeness, in order to prevent applications being returned and to avoid further delays in processing times.

For anyone who has not gone through the process of sponsoring a family member, I can say that it can be a daunting and challenging experience, given all the requirements, eligibility criteria, and constant changes. The amount of paperwork involved in one of these applications is substantial, and the information on the IRCC website can be overwhelming.

My objective today is to highlight some of the challenges my clients have encountered when submitting requests and applications, and share professional observations dealing with the various immigration forms.

I would like to start off by talking about the processing of sponsorship of dependent children and adopted children. It should be a priority for this government. The current age of 18 as a cutoff age to be sponsored should be eliminated and increased to the age of 22, as it was a few years back. Children 19 to 22 years old are still greatly financially dependent on their parents. Many of our clients see that the current policy separates families and forces parents to leave the children behind either on their own or with family members.

In addition, given the fact that children under the age of 18 do not have to provide criminal records, the processing of these applications could be much quicker and straightforward, but in reality, it's taking 12 months or more to have them finalized.

In terms of the two-year conditional permanent residence currently in place, it is unfair and forces people to remain in relationships where they are vulnerable and at the mercy of an abusive sponsor.

We are familiar with some of the exceptions under this policy; however, if there is emotional or psychological abuse, many applicants tend to remain in the relationship for fear of their PR being revoked. We have encountered clients who are too afraid to call and make a report to the police. Police involvement can be a very traumatic experience, and if children are involved, there is the added fear that the Children's Aid Society will be called in.

Another issue is that submitting a sponsorship request does not confer any status in Canada. This forces people to keep renewing either their visitor visas or student permits, spending more money on fees, and applicants who are out of legal status can be deported at any time and have their applications cancelled.

It should be considered that, once a sponsorship has been submitted, all applicants should be given implied status. They should not be living under the constant threat of being separated from their spouse or partner.

Open work permits are another issue. They are being issued within three to four months after application submission, which is great. However, they are only issued to people who have legal status in the country.

It is a well-known fact that many employers hire people with no status, but there are no protections afforded to these people. IRCC should consider that, given the reality, all should be given the opportunity to work legally and contribute to the Canadian economy without any fear of being caught by border services during the processing of their application, regardless of their current status.

Another complaint from our clients is with respect to the call centre. Our experience is also that the IRCC call centre seems unable to provide consistent and accurate information. It is common to get different answers to the same question from different call centre staff.

The online status verification is also ineffective. Information is not updated on a regular basis, and it is difficult for clients to update any personal information. Emails are usually sent via webmail, but confirmation that the information was received is often not sent to the client.

In terms of the actual immigration forms, some of the validated forms are regularly updated and changed by IRCC. This causes applications that were submitted four months prior to be returned to the sponsor for resubmission on updated forms. These can be lost in the process because they are sent to clients by regular mail, and fail to reach them. This can be very problematic because some of the documents, especially criminal records, have to be re-requested from the country of origin and translated again, at significant cost, and new original supporting documents have to be resubmitted as well. If information needs to be updated, the request should be sent in an email or letter requesting the specific form rather than returning the full package.

Fee payment is another obstacle for clients. Payment can only be done online with a credit card, and not everybody has credit cards and having to ask someone to borrow their credit card is not always an option.

Emails are sometimes sent requesting additional information of clients but some clients never receive the requests, due to incorrect email addresses, etc. This results in the cancellation of the application. Some of these may have been in process for two years or more.

We would like to put some recommendations on the table.

Members of Parliament play a very important role in the immigration process and it should be part of their role to facilitate communication exchange between clients and IRCC. We do refer some clients to their local MPs, and with their involvement they were often able to have a positive impact in the application processing times.

Overseas visa offices should be working closely together with the processing centre in Canada. They could, for example, start the background checks on the application while reviewing or completing the sponsor eligibility stage. This would reduce wait times.

Additional processing offices should be set up, such as the one in Ottawa. Applications being processed in the Ottawa office are being finalized in four to five months compared to 10 to 14 months overseas.

The two-year conditional permanent residence should be eliminated. If there is a report of marriage fraud then IRCC should start an investigation by interviewing both parties involved in order to reach a fair decision.

Emails requesting additional information should be followed by a written letter in order to ensure the client receives it. What is at stake is too important to leave to vulnerable email accounts.

There should better communication between border services and IRCC, and they should expedite the processing of applications under deportation orders.

The government, in our opinion, should also consider allowing the sponsorship of siblings.

Finally, multiple options for the payment of processing fees should be available.

Thank you.

[The Vice-Chair, NDP, Jenny Kwan]

Thank you very much, Ms. Nunes. We will now go to questions on a rotational basis.

Mr. Tabbara, you have seven minutes.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Thank you, Chair.

Thank you, all of you, for being here today with us and for helping us conduct our study on family reunification. I want to take a moment to thank you again for all the work that you do. I am pretty sure myself and my colleagues want to thank you for all the work that you do in helping bring families together.

My first question will be to Ms. Wells. I am reading here from an article that says that a former caregiver's fight to bring family to Canada is dragging into its 17th year. It's regarding her children she was trying to sponsor from the Philippines. Would you say that maintaining a lock-in date would be essential for families?

[Patricia Wells]

Yes, that's another of the things that this caregiver, Marcellina, lost when her case became a humanitarian case instead of a live-in caregiver case. If there is concurrent processing of overseas dependants, the children overseas are locked in at the age that they have. If they're 10 years old when their application starts, they will forever be considered dependants, even if 10 years go by and suddenly they're 20 years old. As long as they were the age of dependants when they started, they will be locked in at that age.

Having the same lock-in date possibility for the overseas dependants of H and C applicants would definitely go a long way towards curing what happened to Marcellina in this case.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Would you say that a lock-in date is required for children overseas of people who are accepted on humanitarian and compassionate grounds, who submit a family-class sponsorship?

[Patricia Wells]

Yes, I think that would be easy to do, even by way of policy or ministerial instructions. As far as I know, it's something that was dealt with very quickly and expeditiously. When they changed the date of the age of dependency two years ago, they did have transition provisions that locked in dates at that time. I think it should be very easy to do that, and it should be done definitely. Anybody who has overseas dependants who may face delays, and therefore age out and get too old to be sponsored, should have the benefit of that provision.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

As far as I'm aware, the lock-in date was brought in August 2014. Do you think the lock-in date should also apply to cases prior to August 2014?

[Patricia Wells]

It is, as I understand it, retroactive in that sense. For instance, in the case of live-in caregivers—and perhaps someone can correct me if I'm wrong—the age of the child was locked in at the date when the live-in caregiver first applied for a work permit to come to Canada. If they were dependants at that time, then they would forever be dependants. In that sense, it is retroactive, and I think that it can be easily managed by instructions or a simple change in the policy.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Thank you.

My next question is for Ms. Liew. In your submission, you noted five general reasons why applicants do not disclose their family members, and that most of these reasons have nothing to do with fraud. Can you provide more examples?

[Jamie Liew]

Yes, I provided five different categories.

For example, under the category of “misunderstanding”, an applicant thought that children who were not in her custody didn't need to be listed, when that is obviously not the case.

The second category is “failure to update an application”. For example, an applicant informed immigration that she had a child after she had submitted her application, and this child was barred for the rest of this sponsor's lifetime from being sponsored.

“Fear of exposure” is the third category. A number of examples can be brought to light here. An applicant feared telling her second husband about children from her first marriage, and therefore she did not include them in her application when she was coming over with her husband. Second, some people don't want to reveal the existence of children, for example, from extramarital relationships for fear that the interpreter or the consular office officials in their local community could share confidential information, or a person fears the reveal of a child as a result of rape.

The second last category is “lack of knowledge or bad advice”. This is obviously bad advice given by a person in a community or by a lawyer.

The last one is “unaware a child was existing at the time”. One tragic story is that a woman came and didn't know that her children were still alive. The International Red Cross had identified them, and they notified her that they had found her children after some time, but our immigration rules still prevented her from being reunited with her children.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

As you mentioned, these cases are just misinterpretations, or they forgot to fill out a single form or an area on their application sheet.

Can regulation 117(9)(d) be fixed, or must it, in your opinion, be completely repealed?

[Jamie Liew]

I think there is a simple way to deal with this. It's a very harsh tool that's being used right now. This is in our research, and I provided in my written submissions links to two research papers that I, along with some others, have written. It's very clear that the problem of fraud is not needed. There are other tools in our immigration system that deal with this problem in a more fair and balanced way. As I said, 90% of cases deal with non-fraudulent reasons. There are innocent mistakes, misunderstandings, and language and cultural factors that play into why these persons might not have been identified in the first place, and it has nothing to do with fraud.

There's no breathing room or mechanism to allow for an immigration official who is reviewing a family reunification sponsorship application to consider these things or to provide any leeway in deciding otherwise. This provision applies automatically, and it's very harsh. I think the only way to remedy this is to get rid of that provision.

[Marwan Tabbara, Liberal, Kitchener South—Hespeler, ON]

Thank you.

[The Vice-Chair, NDP, Jenny Kwan]

Thank you very much.

We'll now move to Mr. Saroya, for seven minutes.

[Bob Saroya, Conservative, Markham—Unionville, ON]

Thank you to all the witnesses for coming in and giving us your point of view. It is a difficult file.

Ms. Liew, I'm having a hard time listening to what you're saying. Somebody has kids. Then she tells them she had kids. She didn't tell her husband she had kids. What will happen when, three or four years down the road, she tells him that she has two kids, and one kid's in the back.

Please explain further on it. Maybe I misunderstood. Where are we coming from?

[Jamie Liew]

Basically, the typical way that this could happen is if, for whatever reason, they don't list, for example, a child on their application form, regardless of the kind of immigration stream or category that the person is coming under. It could be for some of the reasons that I spoke about earlier. Then, years later, or some time passes, and they're eligible to become a sponsor, and they want to bring that child over.

The regulation 117(9)(d) applies automatically. If you try to sponsor that person, immigration officials will go back and look at the immigration forms. They will look at the file to see if immigration officials examined that person, the child. If they weren't examined, if they weren't disclosed, then the provision applies automatically.

It prevents you from bringing that family member forever. There's no recourse other than maybe putting in an H and C application, but, as I've said, it is an uneven remedy. Not everybody gets relief through that, and it's expensive. It leads to lengthy delays. It's expensive for the immigration system, for the government.

There isn't a reason to allow such a strict application of this rule. If you're concerned about fraud, there are other mechanisms in the immigration system that deal with this already. There are processes by which to examine whether or not fraud has occurred in this case.

In a lot of cases, we're talking about genuine family members. These are not people who are not bona fide family members of the sponsors. I think this regulation shouldn't exist. It is overbroad and applies harshly to people who are already contributing members of our society.

[Bob Saroya, Conservative, Markham—Unionville, ON]

How often do you see this situation?

[Jamie Liew]

It's hard to say. In our study, we noted that there were a number of cases where people failed to even pursue alternate remedies or H and C remedies, for example. This is because they feared that they could receive punishment or repercussions as a result of losing their status for being perceived as lying to the immigration system.

It's hard to say how many people this affects. When some people are advised by legal counsel that they're going to have a hard time sponsoring the family member because they're caught under this provision, they might say, “Well, I'm not going to take any chances. I want to keep my status in Canada, and I don't want to lose it on this basis.”

It's unknown, but it does affect quite a number of people.