CITIZENSHIP APPLICATIONS AND MISREPRESENTATIONS

Nowadays, many people know that “permanent residents or foreign nationals” can be found inadmissible on the grounds of misrepresentation “for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the Act [ Immigration and Refugee Protection Act].

However, most people are surprised to learn how widely the definition of misrepresentation is being interpreted by immigration authorities, that it can even capture honest mistakes and oversights, and how aggressively Canadian immigration authorities are trying to catch persons for “misrepresentation”. Also, few people seem to understand that misrepresentations can come and haunt them for years after they become permanent residents – especially when they apply for citizenship.

The Act is clear “permanent residents” can be guilty of misrepresentation. Therefore, if  permanent residents are applying for the extension of their Permanent Resident Cards, or sponsoring their spouse, or even were questioned upon re-entry to Canada, a permanent resident can be found to have misrepresented if immigration authorities believe that the person directly or indirectly misrepresented or withheld material facts relating to a relevant matter that induced or could induce an error in the administration of the Act.

One of the most common instances that people are caught for misrepresentation is when applying for citizenship. Often times people are caught for misrepresentation when they apply for citizenship after having come to Canada by virtue of being sponsored by a spouse who they then left “soon after” having been landed. Of course, the definition of “soon after” is also being broadly interpreted. We have defended clients who were caught when applying for citizenship (or sponsoring a new spouse) because they had left their spouse only a few months after landing whereas some did so over a year after landing but were still alleged to have misrepresented.

This problem can be compounded if a lawyer/paralegal, when putting together the un-contested divorce, backdates the date of separation, to get a quicker divorce. On paper, this reduces the actual period that the couple was, in fact, living together.  We have even seen cases where the separation was back-dated to a time prior to the applicant even coming to Canada. While there are solutions to these challenges, the old adage: “An ounce of prevention is worth a pound of cure” holds true.

Is my Child born through Surrogacy Arrangements eligible for Canadian Citizenship by descent ?

The answer, it depends.

 If the child is born outside Canada and they have a genetic link with a parent who is a Canadian citizen, the child is a Canadian citizen by descent.  However, if the child is born through surrogacy arrangements but there is no genetic link, then the child may not be eligible for citizenship by descent. This has been confirmed by the Federal Court of Appeal in Canada (Citizenship and Immigration) v. Kandola, 2014 FCA 85 (CanLII), where the Court noted that a “genetic contribution, however made, is the only way in which a child” – can get Canadian citizenship by descent.

With the advent of AHR (Assisted Human Reproduction), the citizenship laws are creating aggravation for new parents who want to bring their child back to Canada as Canadian citizens.  The citizenship laws need to change, and the Federal Court of Appeal said as much:

[75]  The more pressing policy issue which arises from the analysis is that Operation Bulletin 381, inasmuch as it provides for different and more demanding conditions for the grant of derivative citizenship to children born through AHR, has no legal foundation. While no Charter issue had been raised before this Court, I note that this interpretation would create an unequal treatment between children of Canadian citizens depending on the manner in which they are conceived.

 [76] Several important policy issues also arise because of the novelty which this case presents. For instance, because a genetic link is the only connection required in order to convey derivative citizenship under the Act, a Canadian donor conveys that right like any other Canadian procreator. Also, by reason of the new reality created by AHR technology, it cannot be excluded that a child is “né […] d’une mère” when borne by a gestational mother, in which case the gestational link would also be capable of conveying derivative citizenship. These questions are worthy of further consideration and risk being answered by the Courts unless Parliament exercises its prerogative to deal with them by way of legislation.

However, until now, no changes have been made to the citizenship laws on this front.   The other immigration options that can be pursued to bring the child to Canada, if there is no genetic link, is by adoption; or to apply for a grant of citizenship under subsection 5(4) of the Citizenship Act as a Special Case;  or through an application under s.25 for humanitarian and compassionate consideration for permanent residency, and once the child becomes a permanent resident to apply for citizenship under subsection 5(2) of the Citizenship Act.

It is important for you to understand these immigration consequences before you decide with international surrogacy, as clearly, it will impact the citizenship of the child, the time it will take to bring the child back to Canada, and many other issues related to the child’s status in Canada.

EXPRESS ENTRY- CEC APPLICATIONS AND EMPLOYMENT LETTERS

A recent decision of the Federal Court may be of interest to those who may be able to apply for Canadian immigration under the current Express Entry regime, in the Canadian Experience Class, or need letters to support their work experience. 

For an officer to assess whether one is eligible to apply for permanent residence as a member of the CEC Class, the officer must evaluate whether the applicant meets the criteria of subsection 87.1(2) of the Immigration Regulations.  One of the requirements is that you must have – at least one year of full-time experience in one of the appropriate NOC (National Occupational Classification) code within Skill Type O (Managerial Jobs), or Level A (Professional jobs), or Level B (Technical jobs and skilled trades jobs)  of the NOC.  Most applicants submit employment letters or letters of reference to prove they have performed the duties described in the NOC.  Similar examination has to be conducted in the Federal Skilled Worker and the Federal Skilled Trade class. We often see that the reviewing officers may find the content of these letters do not satisfy them, that the applicant has the requisite employment experience and they refuse the application. Why does this happen?

It happens because in some cases, the employment letters have simply copied verbatim what is described in the NOC for their occupation onto their employment letters, and in other cases, the employment letters do not describe the duties sufficiently in detail to show the applicants meet the description in the NOC.

Keep in mind, to qualify, applicants must meet all the duties described in the lead statement of the NOC, including all the essential duties and most of the main duties listed. If the applicants are unable to show that their experience meets the description in the NOC, they run the risk of their application being refused.

The Federal Court in a recent decision where our firm represented the applicant, discusses how officers must assess the applicant’s claim that he belongs to the NOC:

 [14] In Qin v. Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 30, Justice Gleason set out the process by which an officer must assess an applicant’s claim to belong to a NOC:

In evaluating whether or not an applicant’s experience falls within a permissible NOC Code, an officer is required to understand the nature of the work performed and the degree of complexity of the tasks undertaken, to determine whether or not they fall within the duties listed in the relevant NOC Code descriptors.  The requisite analysis necessitates much more than a rote comparison of the duties listed in the NOC Code with those described in a letter of reference or job description. Rather, what is required is a qualitative assessment of the nature of the work done and comparison of it with the NOC Code descriptor… Thus, it is beyond debate that the officer must undertake a substantive analysis of the work actually done by an applicant.

(Emphasis added)

[15] In other words, an officer must look to the substance of the work done and avoid a superficial analysis of the language used in the job description.  In this case, however, the Officer, in stating that there was “no mention in the letter that you are assigning and reviewing the work of clerks under your charge, as outlined in the lead statement” (AR at 8), ignores the substance of the letter in favour of the specific words used.  As the Applicant correctly notes, being “in charge of” something and “supervising” it are equivalent; this is particularly so when one considers the other duties outlined in the letter of reference, such as “training reservation operators and agents”.

[16] Requiring the Applicant and/or East Link to have said more amounts to a requirement to repeat the language of the NOC’s lead statement verbatim.  Justice Russell, faced with a similar dispute in Song, had the following to say:

[29] It is clear  that the duties listed in the employer’s letter do not use the same words that appear in NOC 0621. But this will inevitably be the case because applications have been refused when an employer simply reiterates the wording of a NOC.  So employers are obliged to describe in their own words exactly what applicants do.  This requires officers to examine applications carefully and not to reject them because the same words are not used.

 Chen v. MCI, 2016 FC 611, Diner, J.

This guidance from the Federal Court is certainly instructive as it helps inform potential applicants what they must provide to meet their burden of proving they have the requisite experience to qualify under the CEC class.

Misrepresentation Leading to 5 Year Ban

MINOR OVERSIGHTS CAN LEAD TO FINDINGS OF MISREPRESENTATION WHICH CAN LEAD TO A FIVE (5) YEAR BAN

Immigration authorities has become increasingly aggressive, to the point that they try to make a minor oversight, a reason to find applicants inadmissible for 5 years.  Our office is seeing this happen more often to persons seeking entry into Canada.  

The scenario which commonly leads to this finding, occurs when these applicants have previously applied to go to a Western Country (usually the United States) for a temporary purpose (visit, study, work), but their application was rejected.  Sometime later they apply for a visa to Canada.   However, the officer advises that not only is he looking to reject their visa application, but he also states that he has found the applicants to have engaged in misrepresentation in their application for Temporary Resident Visa and believes that they may be inadmissible to come to Canada. 

The letter further explains that the misrepresentation finding renders the applicants inadmissible for a period of five (5) years. Meaning these applicants are banned for 5 years from entering Canada.

In many cases, this is the result of a simple oversight or misunderstanding.  In most cases, for example, for a visitor application, Form IMM 5257, has a question in the Background:

Section, 2(b) – Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country.

Many clients misread this question.  Let’s be clear, if you have a previous refusal to the U.S., Australia, U.K. or “any other country,” you must answer YES.  Not doing so, or checking the wrong box, can lead to a finding of misrepresentation and a ban of 5 years.

The law is set out in subsection 40 (1) (a) of the Immigration and Refugee Protection Act, which reads;

Misrepresentation

       40 (1) A permanent resident or a foreign national is inadmissible for misrepresentation

(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;

       Application

(2) The following provisions govern subsection (1):

(a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of five years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced;

So what can you do if you have received such a ban?  Obviously, it is better that you seek legal help when you receive a letter from the visa post asking you to explain why you have not disclosed the previous refusal to prevent the officer finding you inadmissible, especially if you mistakenly checked off the wrong box.  But what if it’s too late and a finding of inadmissibility is already made, and the ban is imposed on you.  You have the right to seek a judicial review of the officer’s finding in Federal Court. 

New Canadian Citizenship Act – What’s Your Intent?

As promised, we will discuss in greater detail one of the biggest problems that the section of the new Citizenship Act, which is not yet in force, will present to applicants for Canadian citizenship. The problems are to be found in S. 3 (C) (c.1) of the new Act, which reads:

(c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, has, subject to the regulations, no unfulfilled conditions under that Act relating to his or her status as a permanent resident and has, since becoming a permanent resident,

 ..................

(c.1) intends, if granted citizenship,

(i) to continue to reside in Canada,

(ii) to enter into, or continue in, employment outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person, or

(iii) to reside with his or her spouse or common-law partner or parent, who is a Canadian citizen or permanent resident and is employed outside Canada in or with the Canadian Armed Forces, the federal public administration or the public service of a province, otherwise than as a locally engaged person;

The problem is that the Act compels the applicant, at the time of his/her applying for citizenship, to state that he/she has the intent to “continue to reside in Canada” or to continue to meet the other two requirements.

While the applicant may have every intent to do so at the time that he/she submits the application for Canadian citizenship, he/she may subsequently be required to leave Canada, due to circumstances beyond his/her control.  Furthermore, what happens if the processing of the application takes several months, or  maybe even a year or more, and during that time, an Officer at the Border stops the applicant because he/she has been outside Canada for an extended period of time? Or, what about the situation where once the person is granted citizenship he/she leaves Canada, let us say, for reasons of a lucrative overseas employment opportunity or to study or for whatever otherwise valid reason which could not have been foreseen at the time the application for citizenship was submitted but where a prolonged absence from Canada is required?  What happens if that person approaches a Canadian consulate abroad to, let us say, apply to renew his/her Canadian passport and the authorities  realize that a year or more after he/she became a citizen  moved away from Canada?  What happens in such a situation? How long is this "intent" supposed to last, anyway?

Our guess, despite the assurances otherwise from the Minister, is that in all such and many more similar cases, the Minister will at the minimum investigate the “intent” and possibly move to try to revoke person's citizenship because the Minister will argue that that person in fact made a misrepresentation when he/she applied for citizenship and that he/she in fact did  not intend to continue to reside in Canada at the time the application for Canadian citizenship was submitted.

Therefore,  the Minister will argue that the applicant had made a "false representation" as described in S. 10 of the new Act.

The said section reads:

Revocation by Minister  — fraud, false representation, etc.

10. (1) Subject to subsection 10.1(1), the Minister may revoke a person’s citizenship or renunciation of citizenship if the Minister is satisfied on a balance of probabilities that the person has obtained, retained, renounced or resumed his or her citizenship by false representation or fraud or by knowingly concealing material circumstances.

Based on the historical pattern of actions of the Minister in the past several years, we have every reason to suspect that this section will be used extensively, and that the definition of what constitutes a “false representation” will be stretched to the limit. 

We are getting ready for this; we hope that those applying for citizenship are as well. Since the Act is not retroactive, there is a limited window of opportunity for remedy for those who are eligible, by applying for Canadian citizenship as soon as possible, before these sections come into force.

Historically, the movement of Canadian citizens has never been hampered by Immigration controls. The new Citizenship Act, however, seems to have done away with that philosophy, and will, seemingly, create two classes of citizens: those who acquire citizenship by virtue of birth, who will be privileged, and those who acquire citizenship through naturalization, who will be subject to Immigration controls.

ERRORS IN IMMIGRATION PROCESSING

As a firm who handles immigration litigation, one of our long time challenges has been to respond to clients who are told that pursuing litigation of negative decisions by immigration officials is futile. We have always stated that it is not. Citizenship and Immigration Canada (CIC) does make mistakes, and the following article by Nicholas Keung in the Toronto Star -  ‘High error rate’ found in Canada’s immigration processing - proves it.  To read the full article:

 

 http://www.thestar.com/news/immigration/2015/01/05/high_error_rate_found_in_canadas_immigration_processing.html

  

Of particular interest is this quote by a union representative for the CIC employees - “The government keeps changing its policies. It is a challenge to keep up with all the changes that come every other week". We have argued that precise fact before the Federal Court recently. We have long argued that these constant changes to policy are detrimental to the Rule of Law.  It goes against the fundamental Canadian value of good governance, as such changes bring uncertainty and confusion not only for the applicants and counsel, but clearly to those charged with administering the law as well.

  

It has long been a contention of luminary legal scholars such as Joseph Raz and Lon Fuller that such actions are in breach of the Rule of Law, and lead to the failure of legal systems (Lon L. Fuller The Morality of Law (Revised ed., Yale University Press, New Haven, 1969) 33–38). Professor Fuller criticized such government actions and believed that "inconsistent adjudication", failure to properly publicize changes in the law, rules that are hard to understand, retrospective legislation, contradictions in the law, unreasonable demands on the applicants, and inconsistency between the stated intent of legislation and the decisions made by those charged with making decisions under the legislation, all lead to the failure of a legal system. This article makes it clear that many of these criticized government actions seem to be happening with immigration here in Canada. So the question is: despite all of its touted successes, is the system on the way to failure if it keeps on its present course ?

MAJOR CHANGES TO THE CITIZENSHIP ACT

Beginning January 1st, 2015, the application fee to apply for citizenship will increase to $530 for each adult applicant.  Many other changes beyond application fees are being introduced that will have more significant impact on the nature of Canadian citizenship.

In the coming days, we shall post blogs in regard to the major changes that have been made in Canada’s Citizenship law, discuss what we believe the effects of these changes will be. To begin, we will outline some of the changes to be made.  When the law comes into force, to become a Citizen, a Permanent Resident will have to:

·         be physically present in Canada for at least 1,460 ( 4 years)  days during the six years immediately before the date of  the application ( the current requirement is 3 out of 4 years);

·         the applicant must be physically present in Canada for at least 183 days during each of four calendar years within this six years (this bring us back to the  residency requirements of the pre 2002 Immigration Act);

·         Must file a return of income in respect to the four taxation years within the six years; (logically proof of this will have to filed with the application);

·         MUST intend to reside in Canada once he obtained citizenship ( this in our view is a section that is highly problematic and our next blog will deal with it in great detail);

·         The age for which language and knowledge testing will be required will be raised to 65    (meaning that you will be expected to meet the language and knowledge requirements until that age);

·         It should also be noted that the language requirements will have to be met on the date of the application, and not when they call you in, it is our understanding that they will require applicants to submit test results (CELPIP-G, IELTS or TEF with the application);

·         ENFORCMENT will be a major focus. 

o    Grounds for the denial of citizenship for “reasons of national security” will be expanded ( it should be understood that one does not need to have a criminal record to be excluded for “reasons of national security”);

o    Revocation of Citizenship process will be streamlined (we expect that revocations will go up - meaning that they will go after individuals to revoke their citizenship- including we believe due to alleged contravention of the “ intent to reside” provision;

 

All of the above, we believe will have major impact on applicants and will be discussed in greater detail in our future blogs. 

There are also;

-New provisions to address various classes of people who have been left without citizenships due to previous changes in the law.

- Greater ability to share information with other departments (this will facilitate greater and wider investigations of the applications for fraud, misrepresentation etc).

-“allowance for alternative proofs of citizenship including establishing citizenship by electronic means “ .