Archive | October, 2009

The (slow) death of the Entrepreneur Class immigrant to Canada

26 Oct

In my Canadian Immigration law practice over the past (almost two decades), I have since the Entrepreneur class of business immigrants to Canada slowly die out.  

The statistics tell the story.

Principal Applicants under the Entrereneur class category have declined steadily from 1,668 in 1998, to 447 in 2008. At the same time, the Investor class of business immigrant to Canada has risen from 1,138 in 1998 to 2,831 in 2008. A similar rise has taken place in immigrants applying to provincial nominee programs for business immigration to specific provinces fro, 151 Principal applicants in 1999 to 8,343 in 2008 (these would be a combination of those selected in PNP occupations programs and PNP business programs).

So what do these numbers tell us.

First, the Investor class is attractive to business immigrants to Canada because it is one of the “fast tracked” programs at visa processing sections at our Embassies/Consulates/ Processing Centre’s outside Canada. There is a rough quota of 2,000 such cases to be approved each year and given the large dollar amounts involved, Program Managers feel the pressure to get the Immigrant Class investor applicant approved as soon as possible. These individuals each have a net worth in excess of $800,000 CDN and are investing $400,000 with an approved Canadian investor fund for a 5 year period. Many Investory class applicants (some rumors say up to 95%, choose to simply pay the $120,000CDN payment and forfeit any refund).

Second, that the Provinicial Nominee Programs also offer a faster processing time for business immigration to Canada. While each province has its own specific emphasis on the type of business immigrant it seeks, they all seem focussed on expediting the application and in providing before and after counselling on how to best succeed in business in their respective province.

Third, the Entrepreneur class, by virtue of it being in a slow processing stream, having very little pre and post immgration support for the new entreprenuer business immigrants, and a very long time frame to remove the terms and conditions imposed upon landing, has become the “option of last resort” for many who seek to Canada with entrepreneur skills and substantial net worth.

Instead of clearly stating that the Entrepreneur class of immigration is in its death throes, it appears that Citizenship and Immigration Canada, is letting the program die a quite death.

It is unfortunate that the Entrepreneur class seems on its way out (though no formal announcements have been made to this effect). In my practice I saw several examples of entrepreneurs from other countries immigrating to Canada and making a major success of themselves and creating Canadian jobs in the process.

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Canadian Refugee Law 101 – Essential Resources

19 Oct

The recent interest in Canadian refugee law, sparked by the arrival of a boat full of Sri Lankan migrants off the west coast of Canada, has led to a renewed debate about whether Canada is too “lax” about refugees.

An important element missing from the debate is a basic understanding of  how the refugee process works in Canadian law. Below is a basic list of resources (web sites) to learn more about this topic.

1.0 The basic legal framework for Canadian refugee law is contained in the Immigration and Refugee Protection Act.

2.0 Canada’s international obligations to protect refugees arise from the 1951 Refugee Convention and its 1967 Protocol, which Canada became a party to on June 4, 1969.

3.0 A great resource to understanding how Canada’s refugee process works is the Immigration and Refugee Board of Canada website.

4.0 The Canadian Council for Refugees website advocates on behalf of refugees in Canada and does an excellent job of highlighting the key issues which refugees face.

5.0 Canadian refugee law does not operate within a vacuum but is influenced by and influences the body of international refugee law. There are numerous sites which place Canadian refugee law within an international context. Some sites of note are a Guide to International Refugee Law Resources on the web by Elisa Mason. Ms. Mason has also prepared other resource guides on the topic of refugee law which are detailed and useful.

6.0 The website of the United Nations High Commissioner for Refugees (UNHCR) is, of course, an essential website for anyone trying to understand the complex laws and processes which govern the rights of refugees.

The above list is only a beginning but should provide a basic overview.

No Simple Answers – Migrant Boat in BC Waters

18 Oct

Today I was asked by a reporter if Sri Lanka was off the coast of Africa. “Pardon my ignorance,” he said. He was writing a story about a  boat with 76 migrants from Sri Lanka which appeared off the coast of British Columbia on Saturday October 17. “No”, I explained, “Sri Lanka is just below India”.

Another reporter asked me if the migrants would be held in jail. “Yes”, I said. “You mean like criminals?”, the reporter asked. “Yes”, I replied, “with criminals and those charged with crimes in pre-trial detention centres”.

Yet another asked, “can you explain briefly how the process works?”. When I began to explain the interaction between the RCMP and the Canada Border Services Agency (CBSA), how Canada was a signatory to several international conventions and protocols to assist refugees, how the process worked at the Immigration and Refugee Board – Refugee Protection Division (IRB-RPD), and more, the reporter quickly stopped me and wanted to know if there was a simpler way to explain the process.

I raise these examples, not to point fingers at the media, but rather to show how the media in its desire to get the story out, is pushed to report it quickly, with reporters who have had little time to research and prepare, and with a burden to present both sides of the story so as to be “fair”.

I was involved with a similar story back in the Summer of 1999 when four ships arrived of the coast of British Columbia carrying approximately 599 migrants from mainland China (mainly Fujian Province). The hysteria at that time was that Canada was about to be overrun by illegal migrants from China and that Canada was being too lax in granting access to the refugee process from those who had arrived on the ships. A group named DAARE has prepared a detailed report of that episode in Canadian immigration history.

Ten years after that episode what amazes me is that the issues around “irregular” migration flows (that is the terms used to describe those who enter Canada without the appropriate visas or documents), continue to polarize the Canadian public. The media in response to the public interest responds by framing the issues in black and white contrast, the complex middle ground appears to be  too difficult to report.

As I write about this latest episode of migrants coming to Canada’s shores, it is the complex middle ground that interests me. Here are some of my thoughts.

First, the real story is not that this boat came to Canada but why we do not see more boats of migrants off the coasts of Canada. The Canadian public should realize that there are significant irregular migration flows all over the world. Migrants are driven from their home countries by civil wars, persecution, global climate changes, and more. Millions are on the move, 42 million in total of which 16 million are refugees. Canada’s IRB-RPD has projected an intake of about 36,000 new claims for 2008-2009. Now do the math. Canada, due to its geography (separated from most refugee producing countries by big oceans and a well watched land border) and intensive interdiction practices, takes very few of the global flows of refugees.

Second, processing refugees is expensive and complex. In addition to the costs of the IRB-RPD process (approximately $4700 per claim) there are social programs and other costs. Why is this surprising or unacceptable to many Canadians? The costs related to honouring international humanitarian commitments are high, but it is (in part) Canada’s adherence to such commitments that repeatedly results in Canada being ranked as one of the best countries to live in. I would argue that respecting the legal and human rights of migrants is part and parcel of what makes Canada the country that it is. The very people who argue that migrants have too many rights and receive too many “appeals”, I would venture, are the same people who would want to have access to all the legal safeguards and appeals if they (or their loved ones) were charged with an offence.

Third, the challenges related to irregular migration flows will only grow with time. As the results of climate change take hold, as resources decline and as the divide between the “haves” and “have nots” grows, managing global migration flows to Canada will become one of Canada’s major challenges. We can see how some of these pressures are manifesting themselves as Canada tries to manage the flows by imposing and removing visa restrictions on various countries, and by negotiating trade agreements that include the flow of migrant labour (skilled and unskilled) to Canada.

This latest story of the ship which arrived off the coast of British Columbia is symptomatic of a larger complex problem. Sorry folks, no simple answers.

Canada Immigration Minister announces language vouchers – Will they work?

16 Oct

The Minister for Citizenship and Immigration, Jason Kenney, announced a pilot project today in which the government of Canada will hand out 2000 language vouchers to new immigrants who settle in Ontario, Alberta and Nova Scotia.

The provinces were chosen to reflect their sizes (small, medium and large) and because these provinces have agreed to be a part of the pilot project. The government of Quebec administers its own immigrant settlement language programs.

The Minister was specifically asked why the pilot program is being launched. Below is the transcript of the Q&A:

Question: Why has there been such reluctance on the part of newcomers to take advantage of language training and class availability?

Jason Kenney: I haven’t heard a really good answer to that question. I have asked it myself many times. I think partly, the – you know, many people who come are focused obviously on getting started in their jobs, in settling their families. Sometimes people typically will work two or three jobs and they don’t have a lot of time to go to language class, which is why we need to find innovative ways. Like one of the ideas here is that by empowering the consumer, they can therefore shop around the different centers providing language training. Hopefully those centers will provide more and better hours, more convenient locations, will do more to provide programs that are really relevant to the language needs that people have. I really believe as a Conservative in market solutions and I think this is creating hopefully a marketplace for language training so people will get better services, more competition, better hours and I think therefore a higher level of uptake.

Part of it is also though just lack of awareness, like a lot of people just don’t know and that is one of the reasons we are doing this. We are going to send these certificates directly – these vouchers directly to people. They will get it in the mail and it is going to have like an ostensible value and I think if someone has a certificate that has a face value, like 500 hours of free language training, that will – they will be more likely to take that up than just like looking through the yellow pages for a settlement organization.

There is no doubt that English and/or French language skills greatly assist new immigrants to settle in Canada. It seems to me that if the vouchers lead to more language skill acquisition by newcomers, it may be a good thing for all. It will be interesting to see how the program rolls out and how it’s effectiveness is measured.

Deportations on the increase

13 Oct

A recent story in the media notes that deportations from Canada are on the increase. In a recent report, the Canada Border Services Agency noted that deportations from Canada had increased from 8,361 in 1999 to 12,732 in 2008. This is not surprising given the increased enforcement powers provided in the Immigration and Refugee Protecion Act (IRPA) in June 2002 and the creation of the Canada Border Services Agency in December 2003.

A brief review of the CBSA’s Reports on Plans and Priorites for 2005-2006 and 2009-2010, shows that spending on the enforcement area was projected to rise from approximately $158,729,000 (in 2004-05) to $326,392,000 (in 2006-07) to $367,145,000 (in 2011-12). The reports are at the CBSA site.

Critics of this heightened focus on enforcement (including myself) have often raised concerns about the fairness of the deportation process and the human rights risks which deportees face upon return to their countries of origin. This is not to say that no one should be deported but rather, that in many cases, the process followed makes it impossible for failed refugee claimants, overstays and others to get the facts of their case before a decision maker.

Janet Dench, Executive Director, of the Canadian Council for Refugees notes:

The Canadian Council for Refugees says the figures debunk the widely held notion that Canada is a haven for asylum seekers.

“This totally contradicts people who continue to say in the media that claimants are never deported from Canada. Once you put your foot on Canadian soil, you can stay here forever,” said Janet Dench, the council’s executive director.

“These facts contradict it and that’s what people who work with refugees know — that this is a daily business, a daily experience that claimants are very routinely removed from Canada.”

Refugee advocates and others have repeatedly noted that in the context of failed refugee claimants, the decision making process of the Immigration and Refuge Board is flawed.

Hiring New Immigrants – Challenges

4 Oct

I have known Nick Noorani, the publisher of Canadian Immigrant magazine for some years. I was among the first Canadian Immigration lawyers to be supportive of his book “Arrival Survival Canada”. Nick has been a one person “force of nature” on the Canadian immigration scene since his arrival to Canada.

He recently posted a slide presentation on his Linked In site entitled “Leveraging Immigrant Employees in your Business”.

Nick clearly lays out the arguments for why recent immigrants to Canada should be hired (they are well educated, offer new ideas, provide access to global and ethno-specific markets, etc.) and why Canadian businesses need to take the risks involved to hire new immigrants. It is worth a read.

I was part of the (Vancouver) Mayor’s Task Force on Immigration (MTFI) and the MTFI issued its Report to Vancouver City Council in November 2007.

On of the key recommendations of the MTFI dealt with immigrant employment:

The Task Force recommends that the Mayor and Council, in partnership with other
governments and key partners, convene a Summit meeting on Immigrant Employment
Issues in the spring of 2008. The purpose of the Summit is to bring together key employer
groups and corporate and business leaders, to discuss the feasibility of creating a
Vancouver regional-based, multi-sectoral initiative which can address skilled immigrant
employment-related issues.

The recommendation of the MTFI was accepted by Vancouver City Council and led to the creation of a working group by the Vancouver Foundation (co-chaired by myself and Faye Wightman, President and CEO of the Vancouver Foundation), a summit on immigrant employment in Vancouver, and the creation of the Immigrant Employment Council of British Columbia.

Creating employment opportunities for recent immigrants to Canada continues to be a challenge, especially in recessionary times. Canadian employers are risk averse to hiring new immigrants since they do not have “Canadian experience”  (a buzz term which can mean many things, but ultimately results in exclusion from gaining experience in the Canadian work environment). New immigrants, in turn, cannot gain  “Canadian experience” without being given a chance in the first place.

I wish the new Immigrant Employment Council of BC much luck with this difficult but important task.

Metropolis British Columbia – research and policy

1 Oct

I am on the Board of Directors of Metropolis British Columbia (MBC). MBC is a research body which based at the University of British Columbia and Simon Fraser University. It has two co-directors, Krishna Pendakur from SFU and Miu Yan from UBC.

At today’s Board meeting, we grappled with some interesting issues related to the relationship between migration research and policy.

In the case of immigration law, the federal government plans legislation and programs to meet certain policy goals. The provincial governments also have an increasing policy role given the growth of Provincial Nominee Programs (PNP’s) where the provinces set their own policy priorities for temporary and permanent immigration.

For example, if Canada has a shortage of audiologists, then a possible policy goal would be to encourage the immigration of audiologists to Canada by changing the laws so that applications by audiologists are fast tracked, etc. As a lawyer, most of work my interaction with policy is when it is implemented. For example, I get retained to facilitate the audiologist’s application to enter Canada.

For many academic researchers, the policy implications of their work simply do not exist (the work does not relate to policy at all) or they do not see/are not interested in the policy implications. For the latter group, how does MBC make the tweezing out of policy implications more sexy, more of an imperative? These are some of the questions the Research Committee will deal with over the next few weeks.

My own involvement with the nexus between research and policy was as one of the investigators of a Metropolis funded research project (also funded by the Law Foundation of British Columbia) in 2007-2008. The topic was “The Impact of Security Based Racial Profiling of Muslims” researched and authored by Alnoor Gova and Rahat Kurd. The project consisted of gathering and assessing a number of in depth interviews with the “subjects” of racial profiling. In the process of assembling the project parameters, there was an intense awareness that the project had to have practical policy implications. The research was in aid of formulating policy responses.

Some of the practical policy suggestions which came out of the research were:

1. That all government agencies involved in security issues (including the
CBSA and CIC) publicize their policies and practices regarding racial
profiling.
2. That all government agencies involved in security issues keep records of
their practices and make such records available so that the Canadian community
can assess claims about government practices.
3. That community agencies providing services to newcomers to Canada also
provide human rights education so that individuals who are likely to be
targeted are aware of their legal obligations.
4. That targeted funding be made available for such training.
5. That security agencies engage in regular conversations regarding their
policies and practices with communities that are likely to be particularly
affected by these policies.
6. The place of birth identification be removed from Canadian passports.
7. The all government agencies involved in security issues continue to pursue
diversity hiring.
8. That mainstream media be encouraged to portray accounts like the ones
we heard during this project to provide some balance to security profiling
in the media.

Since the publication of the study, the challenge has been to follow up with government to ensure that the dialogue between the report recommendations and actual implementation, continues.