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COVID-19 and immigration law: Difficulties and opportunities

Monday, May 04, 2020 @ 8:42 AM | By Ravi Jain and Aris Daghighian


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Ravi Jain
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Aris Daghighian
With the world in isolation, perhaps no legal sphere is as acutely affected as the transnational practice of immigration law. Our field is dependent on the free movement of workers, family members, visitors and students across borders, to which the pandemic is anathema.

As with other facets of society, there is the growing tension between moving forward with those services that are deemed necessary, while maintaining health and safety as the paramount priority. But the difficulties we face now may also lead to opportunities for greater efficiencies and reform in the long term. This is readily apparent in several areas of immigration practice, some examples of which follow.

Workers

The order-in-council with respect to the travel prohibitions allows for exceptions, including those who hold a valid work permit or are issued a work permit approval.

Immigration, Refugees and Citizenship Canada (IRCC) has identified a number of priority occupations, but no specific occupation is exempted. In some cases, these individuals are necessary to the ongoing operation of a business, adapting a business to continue operating remotely, or otherwise adjusting to the new landscape to stay afloat. As a matter of policy, such applications can be submitted and evaluated on a case-by-case basis.

However, as a matter of practice, biometric collection centres are closed around the world. Without this, no new workers are able to enter Canada from outside North America, regardless of whether they are in a priority occupation or otherwise. We have suggested several workarounds including having biometrics collected at airports upon arrival, as well as the waiver of biometrics for those working in priority occupations for whom there is no adverse information. We are hopeful we can work with the respective ministries to find solutions that will work in the short term and also provide long-term solutions for future circumstances in which private biometric facilities are not operating.

Application submission

In order to maximize safety and processing efficiency, IRCC has wisely required all applications be submitted online to the extent possible. This works for study, work and other similar applications which are set up to be submitted electronically. However, there are many other applications for which an online process has never been created. This includes for example sponsorship applications for spouses and applications on humanitarian grounds. These applications must still be physically compiled and submitted by paper in a time when clients, lawyers and staff should be in self-isolation. Moreover, the policy has remained that wet ink signatures are required on forms (electronic is not acceptable), as well as physical photographs.

The current circumstance thereby presents an opportunity for transitioning more applications online and disposing of outdated barriers such as the requirement for original signatures.

Students

Students have now been allowed to work remotely online for up to 50 per cent of their course work, while still being considered compliant with the terms of their permits and entitled to post-graduate work permits. However, students who have spouses abroad have been left with the choice of either being separated from their spouse or leave Canada, where they have established homes and forgo future qualification for post-graduate work permits and an eventual chance at permanent residence.

Adjudication

The need for innovation in legal proceedings was recently emphasized by former Chief Justice Beverley McLachlin, as well as the Chief Justice of the Ontario Superior Court, Geoffrey Morawetz, which has made remarkable strides.

Likewise, our bar is in the process of working with the relevant ministers to hasten the process by which federal tribunals, courts and counsel adapt to proceeding with matters on a remote basis. With sufficient resources, we believe this can be done safely while facilitating access to justice during this difficult time. Our fear is that if this does not occur, it will not only have devastating effects for those clients who are in precarious positions waiting for a hearing, but also cause permanent damage to litigation practitioners. Many in this category manage small firms serving vulnerable communities but may be forced out of practice if changes are not adopted to allow them to operate during this time.

Beyond the current period, the pandemic may spur the necessary transformations toward modernization on a long-term basis, including electronic filing and service, many of which were underway but slow to materialize. As former Chicago mayor Rahm Emanuel said, we shouldn’t let a crisis go to waste. Our present predicament can be a catalyst for a more efficient and equitable adjudicative system.

In the end, the response to this crisis is a testament to the dedication of the public service, from policy makers who are creating and adapting directives on a daily basis, to front-line border services officers who are now more than ever risking their safety to protect our well-being. The hope is that their efforts will not only see us through this period but get us to a better place on the other side.

Ravi Jain is a managing senior lawyer at Green and Spiegel LLP and a certified specialist in citizenship and immigration law by the Law Society of Ontario. Aris Daghighian is an associate with Green and Spiegel LLP.

Photo credit / Lazy_Bear ISTOCKPHOTO.COM

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