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Making sense of shifting COVID-19 immigration laws | Ravi Jain

Tuesday, March 24, 2020 @ 11:02 AM | By Ravi Jain

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Ravi Jain
Immigration lawyers have been grappling with a flurry of new rules relating to COVID-19. There have been Transport Canada announcements as per the Aeronautics Act, Program Delivery Instructions and “Special Instructions” by Immigration, Refugees, Citizenship Canada (IRCC), pronouncements by the minister of public safety, the deputy prime minister and even the prime minister. There has been a travel ban and then exceptions to the travel ban. There have been Orders in Council amending earlier versions of the same and also amendments to the Regulations to the Immigration and Refugee Protection Act.

Of course, there have also been litigation-related announcements and guidance around stays of removals. It’s all been quite dizzying!  

Several lawyers have voiced concern and some disappointment around the decision to return asylum seekers who wish to enter Canada from the U.S. — even if coming at an irregular border crossing under the “loophole” of the Safe Third Country Agreement. While there are some narrow exceptions for those with ties to the U.S., it seems COVID-19 has finally managed to accomplish what I suspect Canada had long been seeking but the U.S. was resisting given that President Trump was likely content to see asylum seekers flowing out of the U.S.

Immigration lawyers were also confused as to whether foreign students and foreign workers would be able to return to Canada and whether holders of newly issued student visa and work visas would be allowed in and whether it made a difference if it was by land or air. Lawyers also pondered whether those with approved permanent resident visas would be allowed to enter. It was clarified that all of these individuals would be able to enter by air at a date to be announced soon.

Also, language suggesting one had to have “already committed to working, studying or making Canada their home” caused lawyers to worry that new applicants need not apply. Fortunately, the minister’s office clarified the latter point to me, indicating that the phrase actually had no meaning and that all foreign workers would soon be allowed in and not subject to the travel ban.

Of course, there was also an announcement relating to the Canada-U.S. border as both countries agreed to restrict “non-essential” travel. This was later clarified to mean that tourism and recreation was not permitted.

Another area of concern related to “flagpoling,” which involves a foreign national leaving Canada to briefly enter the U.S. and return to Canada for the purpose of obtaining an immigration service. While lawyers were reporting that clients were still obtaining work permits, the government has spelled out that flagpoling is non-essential travel and that students and workers should apply to renew their permits online.

Also, those who are in Canada and who are in the final stages of their permanent residence application are being advised to await instructions relating to “telephone landings” which IRCC has experimented with in the past and will be using again to avoid in-person processing at local offices.

Lawyers were also quite concerned about “removals” of clients to unsafe countries and the Canada Border Services Agency confirmed that deportations have been temporarily suspended.

Other concerns related to processing issues and IRCC confirmed that automatic extensions were being provided and that no application would be refused due to delays caused by COVID-19. This addresses announcements around biometric collections being suspended by Service Canada offices throughout Canada. Indeed, deadlines for Express Entry applications for permanent residence were given blanket extensions to 90 days from 60.

Citizenship interviews, tests and ceremonies have also been cancelled at this time and Federal Court hearings and Immigration and Refugee Board in-person hearings and mediations (other than some detention reviews) have been postponed.

The travel ban’s definition of “family member” seemed initially restrictive but it was later clarified that “immediate family member” is defined more broadly than in the IRPA (which defines it as spouses and common law partners, their dependent children and any dependent children of their dependent children) and includes the foreign national’s own parents or stepparents, the parents or stepparents of the foreign national’s spouse or common law partner and the foreign national’s guardian or tutor.

Finally, I have asked IRCC if it will consider:

  • Renewing permits beyond passport validity (given some foreign consulates are not renewing passports right now).
  • Accepting electronically reproduced signatures (just as Trump announced that the U.S. would do effective March 13).
  • Allowing lawyers to receive Permanent Resident (PR) cards of clients who are abroad and mail them to these clients as opposed to requiring clients to fly to Canada to pick them up in person.
  • Permitting students to be able to work beyond 20 hours per week.
  • Permitting those here in visitor status who have approved work permits at visa offices abroad (including working holiday work permits) to obtain them inland.
  • Permitting lawyers to submit spousal applications without photos (normally this would deem them incomplete).
  • Permit applications to be submitted electronically as opposed to by mail.
  • Allow originals like police certificates be sent in later.
  • Permit spousal sponsorship applications to be accepted with the record of solemnization as opposed to requiring marriage certificates given that new ones cannot be provided currently.

I am advised that more announcements will be made in the coming days and so immigration lawyers’ heads will continue to spin.

Ravi Jain is a senior managing lawyer at Green and Spiegel LLP, a certified specialist in immigration law and is the national chair of the Canadian Bar Association (CBA) Immigration Law Section.

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