Citizenship Law in Canada: (Almost) Everything You Need to Know in 500 Words

Citizenship Law in Canada: (Almost) Everything You Need to Know in 500 Words

Since my (almost) everything you need to know about Canadian immigration law in 500 words post was so popular, I thought I'd follow it up with a companion citizenship law post.

Don't make the mistake of thinking just because the Citizenship Act is so much slimmer than the Immigration and Refugee Protection Act, that citizenship law in Canada is somehow simpler than immigration law. If anything, citizenship is more complex and more is at stake because you may need to dig through a patchwork of shifting repealed or amended legislation dating back to 1947, and people may be very well established in Canada by the time they run into citizenship problems. 

But there are a few core principles one can pull from the historic fog which can be a great aid in figuring out any citizenship conundrum. Here's my take on Canadian citizenship law in 500 words.

1. IF YOU WERE BORN IN CANADA YOU’VE GOT IT MADE

Canada confers citizenship merely by being born in Canada. Birthright citizenship is being eroded elsewhere, like in Ireland which changed its laws in 2005 to require a "genuine link to Ireland."

Birthright citizenship can't be revoked, so you're good for life so long as you don't explicitly renounce by sending in paperwork to the Government of Canada. Merely taking an oath of other citizenship to a country that doesn't recognize dual citizens will not void your Canadian citizenship. 

2. DESCENDANTS OF CANADIANS MAY ALSO BE CANADIAN

Canada also recognizes citizenship for children of Canadians who are born outside Canada, though year of birth is as important as place of birth, as at various times foreign births needed to be registered with a Canadian consulate (which almost no one did), or children needed to claim citizenship by 28 years of age (which most didn't realize was required). Since 2009 (based on birth date) there is an absolute prohibition on second generation citizenship (children born outside Canada of children born outside Canada) acquiring citizenship by descent, with very limited exceptions. 

Previously, second (or subsequent) generation citizenship was possible, but any ancestor claimed through must at least have been a "British Subject" in 1947 (the year the first Canadian Citizenship Act came into force). So don’t think that because your great-great-great-great grandmother was born in Winnipeg, and moved to Mississippi when she was two years old, that you’re a Canadian.

3. PERMANENT RESIDENTS MUST DEVELOP CITIZENSHIP STRATEGIES UPON RECEIVING PR

Because Canada is increasingly challenging PR card holder over their right to citizenship or even to maintain their PR, PRs need to develop a citizenship (and PR maintenance) plan as soon as they land that meticulously tracks their days in Canada through documentary proof, like passport stamps, airline ticket, and credit card receipts. To either gain citizenship or maintain a PR there are usually two core requirements: 

a. a minimum period of residency in Canada (currently 3 years out of last 5 years for citizenship, and 2 out of 5 years for PR);

b. not becoming inadmissible (usually through criminality). 

Citizenship will usually have a third core component:

c. minimum language and knowledge skills (subject to testing).

4. CITIZENSHIP CAN BE REVOKED FOR MISREPRESENTATION

Even after you obtain citizenship, the government is now going after an increasing number of people to revoke citizenship based on “misrepresentations” on citizenship applications. Coming clean before being flagged should be considered. With some luck, a voluntary disclosure might earn humanitarian and compassionate points sufficient to stay in Canada.

5. APPEAL ROUTES EXIST FOR CITIZENSHIP

A denial of citizenship is usually appealed to the Citizenship Commission. If you lose there or don't have an appeal route there (just because the government makes a decision against you, doesn’t mean you get an automatic right of appeal), seeking leave to bring a judicial review to the Federal Court may be your only option. Be aware JRs can have very short leave filing limitation periods.

Immigration Law in Canada: (Almost) Everything You Need to Know in 500 Words

Immigration Law in Canada: (Almost) Everything You Need to Know in 500 Words

Lawyers like words. And have a reputation for being wordy. My published law books are about 250,000 words each! But I believe it’s possible to condense an area of law down to 500 words for (almost) everything you need to know. That’s no more than a short magazine article. Here’s my top 500 words on immigration law in Canada. 

1. KNOW YOUR STATUS

There are four immigration classes of people in Canada: Citizens, Permanent Residents, Temporary Residents, and those with No Status. It’s possible to slide up and down through the classes, sort of like social mobility, by applying for different status and meeting technical requirements. The higher your class, the harder it is to slide down. The lower your class, the harder it is to pull yourself up. 

2. GUARD YOUR STATUS

It’s very important to do whatever the law requires you to do to retain your immigration status, because you’re at huge risk of being kicked out of Canada if you lose all status. If you’ve got 182 days in Canada as a Visitor, make sure you renew before 183 days. If your study permit doesn’t let you work, make sure you don’t do anything that might be construed as work - even volunteering. 

3. AVOID MISREPRESENTATIONS

Making a “misrepresentation" to the Government of Canada is probably the biggest common immigration sin, leading to the most dire consequences. It’s far better to come clean over past immigration indiscretions - overstaying a visitor visa, illegally working, being convicted of a criminal offence - than lying about them when asked on a form or by an officer. It may be possible to absolve yourself of many types of indiscretions if you ask really nicely and get lucky. But actual misrepresentations are rarely forgiven, and could get your citizenship revoked. A misrepresentation can even be accidental. 

4. AVOID APPLICATION ERRORS

The government focusses on the most minor of inconsistencies, discrepancies and errors in immigration applications. Photo size off by a millimetre: rejection! Documents professionally translated but not accompanied by precisely the right certification affidavit: rejection! Listed all your nine brothers and sisters, but left off a step-brother because you don’t know where he lives and you ran out of space on the form: rejection and possible allegations of misrepresentation!

5. PROCESSING TIMES VARY GREATLY

How greatly? Try from one day to five years! Processing speed depends on where you apply, when you apply, what you apply for and who is applying. So before applying, consider all those factors to determine your fastest route. And if the process seems to be taking a ridiculously long time, consider a government nudge, and in the worst cases consider a Federal Court mandamus judicial review application to expedite things. 

6. FIND OUT WHY YOU FAILED

An Access to Information Act or Privacy Act request could obtain internal government notes better explaining why your application was rejected, so that you can fix the issues on a resubmission. 

7. CHALLENGE WACKY DECISIONS

Sometimes government decisions are just wacky. You don’t need to put up with them. But get a lawyer to challenge them. Don’t try to do it yourself or you could dig yourself into an even bigger hole. Decisions might be challengeable at the Immigration and Refugee Board or before the Federal Court, in part on grounds of violation of procedural fairness and natural justice. 

And if you don't think that's 500 words on the nose, you can take it up with wordcounter.net

Gordon S. Campbell is an immigration and citizenship lawyer practicing throughout Canada who has served as legal counsel to the IRCC and CBSA, and argued public law cases as high of the Supreme Court of Canada. 

THE IMMIGRATION & CITIZENSHIP LAW REPORT APRIL 2018

THE IMMIGRATION & CITIZENSHIP LAW REPORT APRIL 2018

THE CANADIAN BAR ASSOCIATION IMMIGRATION LAW 2018 CONFERENCE ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation & IRCC policy. Edited by Gordon S. Campbell, Barrister; compleximmigration.ca. 

This month we delve into the unwritten insider tips that you only hear at live conference immigration law panels. I’ve attended a lot of panels in different area of law over the years, and some have been real yawners. But the CBA National Immigration Law Section's annual conference is the best place in the world to find out the real scoop on what goes on behind the closed doors of the Canadian immigration and citizenship application review world. Only at these conferences will senior government mangers from the CBSA, IRCC, and IRB as well as immigration lawyers from private practice and the Department of Justice give you the real goods. The following are summary highlights of selected panel comments from the conference that may be useful in day to day practice.

DEALING WITH PORT OF ENTRY ISSUES (ACCORDING TO THE CBSA)

There is no right to counsel at a Port of Entry if a person is only being examined for the purposes of determining their admissibility to Canada, but there will be a right to counsel if that person is "detained." 

An "enforcement flag" within CBSA's data systems will usually result in the referral of a person to secondary examination upon every entry into Canada. Border Services Officers have discretion to modify enforcement flags upon request, though they might choose to not exercise that discretion.

Information on immigration documents issued by the CBSA that does not match the personal information in the entry passport of a person constitutes an error that must be fixed. Errors can be (1) fixed immediately if a person is still at the port of entry, (2) fixed inland or at another port of entry, but only if that office has the required secure paper to reissue the document, (3) fixed by completing a Request to Amend Record of Landings, Confirmation of Permanent Residence or Valid Temporary Residence Documents and sending it to the CBSA Operations Support Centre in Ottawa.

Flagpoling (leaving & immediately reentering Canada) to fix immigration issues can be very risky, as (1) it will kill implied status to work or study while the IRCC processes an inside Canada extension application, (2) reentry may be refused, (3) even if readmitted, it might be without a work or study permit and possibly with a removal order condition attached. 

Everything possible should be done to support the legitimate appearance of documents in a client’s possession, as there are no official CBSA standards on what are legitimate and what are fraudulent foreign travel documents. The CBSA might even just use Google to check document legitimacy, so having corroborating documents, having official document certification, and having affidavits in support of authenticity should all be considered if coming from a region with a reputation for document fraud. It only takes one CBSA officer to doubt document authenticity for entry to Canada to be refused.

YOUR MP HAS A DIRECT BACKDOOR TO IMMIGRATION STATUS UPDATES

Did you know that the majority of citizen demands for help from local Member of Parliament constituency offices involve immigration and citizenship issues? The demands are so numerous that the IRCC has set up a special backdoor telephone and email contact line for those MPs. Sort of like a Canadian Express Ultra Platinum Immigration Card. 

You and I submit questions to IRCC through normal channels, and maybe it takes weeks or months to hear back, if we can get the information at all. The MPs submit questions, and they get answers the same day! They don’t have direct access to IRCC computer systems, but they get concierge service from IRCC helpers who will dig around electronic files and make internal enquiries to figure out where things stand. 

As an immigration lawyer or consultant, you can’t directly access this MP highway to IRCC information riches. But your clients can. So have them make an appointment with the constituency assistant. Give them something in writing for what questions you want answered. And prepare to be amazed. 

GLOBAL CASE MANAGEMENT SYSTEM (GCMS) HAS ALL THE NOTES YOU NEED

Although governments are never too quick off the mark in developing modern nimble electronic information management systems, most departments eventually get around to doing something, and then connecting it to the Internet. IRCC now has a GCMS system that replaced (or at least supplements) several older non-online systems. But the only way for lawyers, consultants and immigrants to access its contents seems to be through Access to Information and Privacy Act (ATIP) requests. 

In fact, the immigration process seems to be one constant ATIP poke according to some practitioners. One can make an Access to Information request for $5 and a Privacy Act request for free. Privacy Act gets you your own information, Access to Information gets you other government information. The problem with both requests is that they can take a long time for a response, and lead to extensive redacted information so that you then need to appeal, which in turn might go nowhere.

But refusal letters you might receive from IRCC could be so cryptic and brief that it is impossible to figure out what went wrong. And if you don’t know what went wrong, then it will be impossible to fix it in a new submission. Thus access to information and privacy requests are the only option to compel government disclosure of details, with Federal Court judicial review being a last resort if information requests and appeals are unsatisfactory. 

CBSA officers are directed to make GCMS notes that are (1) case relevant, (2) complete, (3) factual and (4) detailed enough so a reader can conclude what transpired during an interaction with a client, what directives were provided to a client, and what are the next steps. However, while previous non-online systems depended on narrative notes to describe steps and interactions, GCMS depends more on attached documents to be self-explanatory as to steps, with narrative notes to be kept to a minimum. 

In addition to the IRCC's GCMS system, the Integrated Customs Enforcement System (ICES) is where you will find records of seizures, other enforcement actions, lookouts, intelligence and investigation cases, and information from external sources relating to enforcement. Though because of exemptions, externally accessing that information may be challenging. 

IMMIGRATION APPEAL DIVISION MOVING TO SKYPE MODEL

When government departments get desperate, it's impressive what they can accomplish. My experience of two decades in government was that it was staffed by smart, hard working people who were sometimes held back from implementing innovative ideas that could result in great efficiencies, because of bureaucratic red tape and inertia. But when government Ministers wade in at the highest levels with orders to make things happen, red tape can get cast aside. 

Thus the IAD of the IRB is casting aside that darling of the 1980s the fax machine, in favour of email hearing scheduling. It’s also going to run hearings by Skype (or other video app) rather than in person, with telephone as a backup, so that witnesses don’t need to travel long distances within Canada, or face the impossibility of travelling from abroad. Indeed, IAD total inventory case backlogs are falling as overall IAD applications rise, so something is being accomplished.  

THE IMMIGRATION & CITIZENSHIP LAW REPORT MARCH 2018

THE IMMIGRATION & CITIZENSHIP LAW REPORT MARCH 2018

THE IRB & FC PRACTICE ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation & IRCC policy. Edited by Gordon Scott Campbell, Barrister; compleximmigration.ca. 

NEW & NOTABLE RUNWAY

Minister's Request for Postponement of Hearing Denied - Federal Court Upholds IAD Refusal - Burden on Minister to Prove Management Allocation of Resources Reasonable

Where a spousal sponsorship refusal had resulted in an almost five year process after the date of marriage to get before the IAD of the IRB, the IAD refused the Minister's request for a postponement, finding the Minister "must show that not only did it claim not to have available resources or hearing officers, but also that is had no reasonable alternative other than postponement."

Canada (Citizenship and Immigration) v. Chung, 2018 FC 238

Not All Hearsay Admissible in Citizenship or Immigration Proceedings - CAIPS Notes Inadmissible Without Affidavit For Statements

The court noted that one must "distinguish[...] notes assessing a written application from notes recording statements at an interview ... an oral interview constitutes an investigation, and the resulting notes describe evidence from the interview without any collateral guarantee of authenticity ... a declarant may be motivated to record details from the interview in a manner that supports his or her own conclusions."

Canada (Citizenship and Immigration) v. Vujicic, 2018 FC 116

Federal Court Has Authority to Issue Directed Verdicts of Citizenship - Citizenship By Descent Not Question of Ministerial Discretion But Rather Right

"The language at s. 3 of the [Citizenship] Act is declaratory: once the requirements ... are met, the person is a citizen, irrespective of Ministerial action. Thus, if the Applicant's grandfather was employed 'in or with' the federal public administration - which is not a question of discretion, but rather one of fact - then the Applicant is a citizen. As such, the issuance of a directed verdict in the case at bar does not impinge on Ministerial discretion."

Fisher-Tennant v. Canada (Citizenship and Immigration), 2018 FC 151

STAT & POLICY INTERP COLUMN

As many may already be aware, challenging immigration decisions is more about "judicial review" (JR) than "appeal." There are a few rights of appeal provided for in the Immigration and Refugee Protection Act, but often you're stuck with no option but to seek "leave" (permission) to bring a JR application to the Federal court. 

Life is much more simple with appeals. You can always argue error of law, sometimes error of mixed fact and law, and occasionally even error of fact. With JRs, the courts have fallen into an abyss of disagreement over "standard of review" and whether that standard is "reasonableness" or "correctness." The Supreme Court of Canada's decision of Dunsmuir v. New Brunswick, 2008 SCC 9 is largely responsible for the mess. It's now been cited (according to CanLII) by 14,337 other cases!

If you don't see much of a difference between "reasonableness" and "correctness," you're not alone. I've been trying to reconcile the two terms for years, including why there is even a distinction, and I just don't get it. Even the Chung case (2018 FC 238) already cited in this report found: "As with many judicial reviews, the shifting sands of standard of review almost overcome the real issues in dispute." 

So no need to obsess over your burden to meet in challenging an immigration decision, rather just focus on getting the forum to challenge it in correct: submissions directly to the Minister, process within the Immigration and Refugee Board, or JR to Federal Court will always be the main options. 

RETRO CASE CORNER

Potential Foreign Hardship Can Be Considered For Any Removal Order, Not Just Refugee Matters

"The I.A.D. is entitled to consider potential foreign hardship when exercising its discretionary jurisdiction ... the onus is on the individual facing removal to establish exceptional reasons as to why they should be allowed to remain in Canada."

Chieu v. Canada (Minister of Citizenship and Immigration, 2002 SCC 3

The Immigration & Citizenship Law Report February 2018

THE FIRST ISSUE

Selected analysis of IRB & Federal Court jurisprudence, legislation and IRCC policy. Edited by Gordon Scott Campbell, Barrister, compleximmigration.ca. 

STAT & POLICY INTERP COLUMN

Although sound principles of statutory interpretation may be more about common sense than anything else, it took a prof at the University of Ottawa named Elmer Driedger to pin statutory interpretation concepts down in the English language Canadian common law world. The Supreme Court of Canada has since adopted his principles repeatedly, like in my case of R. v. Ulybel Enterprises Ltd, 2001 SCC 56: "today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament." 

Though his seminal book under the assumed authorship of Professor Ruth Sullivan is now in its 6th edition having been renamed Sullivan on the Construction of Statutes(LexisNexis, 2014), really Driedger's 1983 2nd edition of Construction of Statutes is the classic because it’s so slender and to the point. It remains the one I always cite.

RETRO CASE CORNER

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 is the seminal case to cite whenever you're sure the government is not being fair, but you're unsure of which rules or principles to point to as supporting your fairness breach arguments. It codifies procedural fairness principles. It talks about the weight to place on policy rather than law. It’s cited as leading authority by all manner of non-immigration judicial review cases.

Key is: "underlying all these factors is the notion that the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker" (para. 22).

NEW & NOTABLE RUNWAY


Spousal Sponsorship Refusal - Was Marriage Entered Into Primarily for Purpose of Acquiring Status - IAD Applies Predominant Purpose Test in Allowing Appeal

“Although the relationship may have been initiated primarily for the purpose of Dien acquiring status in Canada; nevertheless, in the opinion of the tribunal, by the time of the marriage, acquiring status in Canada, was no longer the dominant driving force of the relationship.”

Tran v. Canada, 2017 CanLII 87447 (CA IRB)

Are Gladue Principles Applicable to Immigration Removals where Indigenous Child Involved - FCA Overturns FC in Allowing JR

Although decided back in 2017, this case is of sufficient importance to still highlight. The Federal Court of Appeal overturned the judgment of the Federal Court which had dismissed the application for judicial review to defer deportation of a Guyanese permanent resident pending a Humanitarian and Compassionate application determination, on the basis that he had sole custody of a 9 year old Indigenous child.

The FCA held: "enforcement officers may look at the short-term interests of the children whose parent(s) are being removed from Canada, but cannot engage in a full-blow H & C analysis of such children's long-term best interests ... aboriginal children are doubtless among the most vulnerable in Canada ...  this description [of the enforcement officer] belittles the profound nature of the degree of connection to culture, heritage and territory that is likely important and desirable for an indigenous person to maintain. Thus, the Enforcement Officer's treatment of these issues was insensitive, which Baker instructs is the antithesis of the requisite analysis of the best interests of the child" (at paras. 61, 86, 91).

Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130

How Can Americans Immigrate to Canada? Top 5 Tips to Enjoying More Maple Syrup & Moose Burgers than You Thought Possible (Tofu Substitutes Shaped Like Beavers Also Available)

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How Can Americans Immigrate to Canada? Top 5 Tips to Enjoying More Maple Syrup & Moose Burgers than You Thought Possible (Tofu Substitutes Shaped Like Beavers Also Available)

Canada is now taking in more permanent residents per capita than any other country on earth. And those numbers continue to climb year over year. But somewhat ironically, it can now be a lot trickier to qualify for the permanent residency golden ring up front than it used to be. Citizens of the United States of America have several advantages in their quest to move to Canada, starting with being visa exempt to visit Canada, and possibly having NAFTA work permits available (at least until someone rips up NAFTA). 

Here are my top five tips as a Canadian immigration lawyer to maximize your chances as an American (or other national) of qualifying to settle in Canada permanently. 

1. Get a Job in Canada

Canada increasingly awards permanent residency qualifying points to those who already have work experience in Canada. I know it might seem a bit of the chicken versus egg problem of you wanting permanent residency so you can get a job in Canada because most jobs are not available to foreign nationals, but if you work at it you'll find there are lots loopholes available (albeit some very complicated ones) to come to Canada to work as a foreigner.

High skilled occupations - especially in the IT sector - may be able to get work permits. Francophones working outside Quebec may find permits. There are sometimes permits available to those who are self-employed. Sometimes getting a job that qualifies through what's known as a provincial nominee program (PNP) which is an immigration program administered by a Canadian province rather than the Federal Government (though you eventually need to apply to the Feds) may also be a viable path to permanent residency. 

Yes, finding an available job without already having permanent residency is a hassle. No one said immigration was easy. But if your plan is to uproot your life, and move yourself, your family, your career, your future to another place, then all those logistics are going to take lots of planning. As in years of planning. Hopefully you’ll find it’s worth it. My parents went through that hassle when they immigrated to Canada, and I thank them every day for having done so. 

Starting with an immigration lawyer might be your best bet as an American wanting to work in Canada as a path to permanent residency, since an immigration lawyer can explain all the options to you (and there are lots of them). You might also need to work with a recruiter, or even start with a recruiter, depending on your profession.

2. Study in Canada

Always thinking about doing that Masters or PHD degree, but never got around to it? Canada has lots of outstanding internationally ranked post-secondary schools at bargain prices, relatively speaking. The fact of you having a Canadian degree will generate major points in your favour towards Canadian permanent residency, as will the fact that you have an advanced graduate qualification. It's not a guaranteed in - you'll also need other factors in your favour - but it's a major plus. 

But even coming to school in Canada as a foreigner isn’t as simple as just submitting a school application and showing up. You’ll need a study permit issued by the Government of Canada, and those permits can be a hassle to get when Immigration, Refugees & Citizenship Canada (IRCC) starts challenging whether you have enough money to support yourself while studying in Canada. You’ll probably be allowed some limited part time employment, but it won’t cover most of your expenses. You might even get hassled by IRCC over the legitimacy of the program you're enrolled in. 

Again, my advice if you’re serious about studying here is to start with an immigration lawyer after you’ve identified some schools of interest. No, the process definitely shouldn’t be such a hassle that you need a lawyer. It’s in fact somewhat shocking that you do. But we constantly see people who have spent years planning and saving to study in Canada, and who are accepted by a great school, only to have their dreams destroyed or delayed because two months prior to starting their program the IRCC refuses their study permit for one reason or another. 

3. Start a Business in Canada

Although the immigrant passive "investor" programs are mostly dead in Canada (outside Quebec), there remain several viable active immigrant “entrepreneur” programs runs by provinces as provincial nominee programs. You’ll need some cash and some business experience to qualify, and to actually move to the province which accepts you even if your long term goal is to live elsewhere in Canada. And you’ll definitely need an immigration lawyer for these programs, as they're much more complicated in their applications than a normal work or study permit. But they remain very viable alternative immigration paths for Americans (and others) who might not meet the criteria for other paths to Canadian permanent residency. 

4. Hit the Express Entry High Score

Canada truly high grades its immigrants, largely based on its assessment on who will succeed the best once settled here, and who will contribute the most to Canada. Under the Federal Government's premiere permanent residency immigration program that's currently called "Express Entry," Canada thinks you’re slowly dying after 29 years of age (when you get the most points for age) and are totally dead after 44 (when age-based points disappear completely).

You can still immigrate at an older age, but the more boxes you can’t check (29 or under, PHD, fluent in French AND English), the harder time you’re going to have making the cutoff score. As an American who has lived all your life in Florida, you’re competing against Americans (and others) who have spent years working or studying in Canada. So you need an edge. You might in fact have that edge, but you need to work every angle, and be prepared for alternatives to the Federal Express Entry program where I often find our clients have trouble meeting the required cut off score the first time around, but there are lots of alternatives paths to permanent residency. 

If you're thinking Express Entry, your own Internet research is probably the best starting point. You might be able to figure out an approximation of your likely Express Entry points without anyone’s help. You might find you’re extremely close, or you might not even be in the game. But once you’ve done that initial research, you should think about seeking out professional help. 

The irony is that prior to my becoming an immigration and citizenship lawyer, I was convinced that this wasn’t a “real law” area; that this was something anyone could do by themselves. Criminal charges?  Family law problems? I’d always urge people to run out to find a lawyer. But immigration? The only reason I now know different is that I see up close the thousands of disastrous cases per year where people have done their best to do everything right, indeed sometimes they have submitted a "perfect" immigration application that should definitely be accepted, but isn’t for some unfair reason.

So immigration lawyers don't just perfect applications (because you actually might be able to do that yourself), rather they also worked to fix unjustified rejections through dealing with Canadian governments, and also steer clients to immigration paths with the lowest risk of rejection, because they leave less discretion in the hands of government officials. 

5. Check if You Might Already be a Canadian Citizen. 

Don’t get your hopes up. I’m frequently contacted by Americans hoping that their link to their Canadian great-great grandmothers will get them in the door. It won’t.

But if you’re family is originally from Canada, it’s worth checking out if you might already be a citizen since I believe the vast majority of those not living in Canada who might be able to claim Canadian birthright citizenship tend to be Americans. 

 

Gordon S. Campbell is a Canadian immigration & citizenship lawyer who previously served as counsel to the IRCC and Canada Border Services Agency. Learn more at compleximmigration. ca

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How to Challenge Negative Immigration Decisions in the Federal Court: Top 7 Things You Need to Know as an Immigrant, Consultant or Lawyer

Most of the Canadian immigration legal world ticks away, with nary a thought of going to court. That’s the way it should be. If every government application wound up before a court ... Yes, I know, not a pretty notion. 

But the problem with that reality is that when legal issues do need to go to court, it can be hard to spring into action. It can be difficult to decide if court is the best or even a possible option. It can be challenging to decide what grounds to plead before a court. And it can be especially tricky to find counsel to take on, put together, and file your case before the expiry of the deadline. This is especially so with immigration matters.

As an immigration lawyer who goes to court a lot, here are a few of my top tips on what Immigrants (and the consultants and lawyers who help them) need to know about the Federal Court process of reviewing immigration decisions. 

1. JUDICIAL REVIEW IS ONLY AVAILABLE IF YOU'VE EXHAUSTED ALL RIGHTS OF APPEAL

I used to be plenty confused in law school over the difference between a "judicial review" and an "appeal." They both seek the same thing: the overturning of a lower court or official decision. So why the different names?

I eventually learned it's because appeal rights are fundamentally based on statute. Meaning, if Parliament has written somewhere that your client can appeal an adverse decision of a particular type to some higher body, then that's the way to go. But if you can't find a right of appeal anywhere in the legislation, you might be stuck with a decision you can't live with. Enter the concept of judicial review.

Judicial review is fundamentally concerned with natural justice and procedural fairness, based on the principle that even if you can't appeal, if you're suffering a true injustice some Superior Court in Canada should be able to help you out. In the case of immigration, that's the Federal Court.

The formal concept of judicial review is just a codification of the Royal prerogative writ extraordinary remedies of certiorari (which quashes a lower decision), mandamus (which forces a lower official to do something), prohibition (which stops a lower official from doing something), plus the less commonly cited habeas corpus and quo warranto writs, all of which are mentioned at s. 18 of the Federal Courts Act as being incorporated into judicial review.

Lawyers and non-lawyers alike can get tripped up by attempting to bring premature judicial review applications when there are outstanding rights of appeal that must be utilized first. You must carefully assess - preferably in conjunction with legal counsel- whether a JR is available as a measure of last resort.

2. THE FEDERAL COURT IMMIGRATION JR DEADLINE IS CRAZY SHORT

How’s 15 days from the date of the challenged decision for short! And you might have already lost half of that with mailing delays from the IRCC or IRB.

It’s no secret this brevity was an intentional political move to make it very difficult for those with legitimate immigration problems to seek court relief. Don’t blame the Federal Court - it didn’t draft the Immigration and Refugee Protection Act - blame the politicians. Though the normal judicial review limitation period of 30 days in the Federal Courts Act to seek JR for other kinds of cases isn’t much better. The only way to tackle a 15 day deadline is to be ready to go BEFORE you get a negative decision. Start sketching out the Notice of Application for judicial review, figure out the likely grounds, find a lawyer. Just in case.

And don't count on the longer 60 day deadline for immigration judicial review "in the case of a matter arising outside Canada" being applicable. Do you really want to bet your future on arguing the difference between "the case of a matter arising in Canada" (15 days) and "the case of a matter arising outside Canada" (60 days)? If you are now in Canada, or were in Canada, or something was done or not done in Canada, the 15 day deadline might apply, even if an application was filed outside Canada. Sure, it also might not apply, but gambling the entire success of the case on how the Federal Court defines where the matter arose is foolish if you can possibly meet the 15 day limit. Of course if you've already missed it you might need to argue that only the 60 day period applies.

Be aware that it's possible to petition the court in extenuating circumstances for an extension to the 15 day (or 60 day) JR limitation period, but you need a very good reason to have missed the deadline, you can't have missed it by much, and you'll need very strong grounds for review which engage the sympathy of the Court.

3. THE ODDS OF SUCCEEDING ON AN IMMIGRATION JR ARE REASONABLE

As of 2016 the government stats (http://cas-cdc-www02.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Statistics/statistics_dec16) say 5313 immigration cases were commenced before the Federal Court (3538 of which didn’t involve refugee applications). That’s more than the entire rest of the Federal Court’s workload combined.

By comparison, there were only 338 intellectual property cases and 121 admiralty cases, both traditional mainstays of the Court. And you can add to the immigration numbers another 454 citizenship cases, which by themselves almost outclass the IP and admiralty cases. It's rarely talked about, but the popularity of migration to Canada has turned the Federal Court largely into an immigration and citizenship court. 

Of those 5313 immigration cases, the Federal Court granted leave to proceed with a judicial review in 1258 cases, a rate of 24%. That rate of success is almost identical to the typical 25% rate of success for civil appeals in other courts, like those before the Tax Court of Canada or the Court of Appeal for Ontario.

If you consider that many of those 5313 may have been self-represented without lawyers, some were hopeless cases, and some were abandoned, the true rate of success where a plausible argument for review existed and a lawyer was involved could in fact be far better than 25%. Those are actually quite good odds.

Although it's true that immigration JRs supposedly involve a two stage process, where even if you’re granted leave to proceed with a JR you might still lose the JR argument on the merits, in reality you’ve likely got a far better than 50-50 shot if you get leave because increasingly the Minister simply consents to immigration JRs that get leave, prior to the Court hearing the JR, perhaps in order to avoid a bad precedent, or at least to avoid wasting lawyer and court resources.

Why not consent to good arguments before leave is granted? Having worked for years in the Department of Justice, I can tell you that I found in many parts of government the most popular decision is no decision at all (because you're apt to take flak for sticking your neck out). Thus the "let the Court decide" attitude may be the politically safest course of inaction, where DOJ requires direct instructions from the IRCC who is Justice's "client" in order to consent, and it proves very difficult to obtain such instructions.

4. JRs CAN BE HARDER TO SUCCEED ON THAN APPEALS

Notwithstanding the encouraging rates of leave being granted by the Federal Court for immigration JRs, and Ministerial consent after leave, you need to know that the burden an applicant faces on a JR can be harder to meet that that faced by an appellant in a traditional appeal. With an appeal, you usually only need to show an error of law, or mixed fact and law, that could have affected the result in the case. With a JR, there's a constant tension in the jurisprudence between whether the standard of review is “reasonableness” or “correctness.” I’ve never understood the debate, and I’m a constitutional lawyer who spends a lot of time thinking about such things. In theory the standard leads to results like: “they got it wrong below, it was incorrect, but it was still reasonable, so I’m not going to do anything about it.” Make any sense to you? 

There are lots of academic papers out there on this reasonableness-correctness distinction. Though the debate is perhaps best summed up by a concise Tweet I recently saw one lawyer (Jason Morris) Tweet in response to a BadLegalLLP Twitter remark: “Correctness is what we call the standard of review when a) the lower court messed something up, and b) we are not okay with letting it slide this time.” 

As someone seeking judicial review, you need to know that the more errors you can identify in the lower adverse decision to be challenged, the more serious those errors are, and the greater the impact of the errors on the rights of the applicant, the better the chances of success on a JR. Since JRs rely on legal precedent, you should also keep your eye out for useful legal precedents on CanLII within the Federal Court (www.canlii.org/en/ca/fct) and IRB (www.canlii.org/en/ca/irb) body of jurisprudence, where individuals with similar facts were successful. 

5. ONLY LAWYERS WELCOME 

Only lawyers can represent people before the Federal Court. Why? This is simply one of those just the way it is legal monopoly kind of things, that also applies in all other Superior Courts in Canada. 

Litigants can represent themselves without any lawyer involvement, but I don’t recommend it. A Federal Court JR is legally very technical, and very unlike the small claims courts of Canada which encourage self-reps, or even family courts which tolerate them. Certainly at the IRB there are lots of self-reps, some of whom might succeed because it's an in-person process focussed much more on the facts than the law. At the Federal Court it’s all about the law.

6. JR GEOGRAPHY DOESN’T MATTER

You can file an immigration application for leave to bring a JR at any Federal Court Registry found throughout Canada, regardless of where the applicant resides or the Ministerial or IRCC decision was made. Since all Federal Court judges are required to live in Ottawa, you might get a faster hearing date by filing there. Plus that is where the Court’s principal Registry is located, although electronic filing makes the actual location of the Registry somewhat irrelevant. Since JRs are largely paper processes not requiring live witnesses (unlike IRB hearings), you should probably just pick a lawyer you are comfortable with, and let that lawyer pick the place of the JR. 

7. FLAT BLOCK FEES POSSIBLE BUT NOT ALL JR FEES CREATED EQUALLY

Unlike civil trial slug fests involving solely private litigants in other Superior Courts dealing with family or commercial disputes where unpredictable hourly legal fees are the norm, for Federal Court judicial reviews some lawyers (including me) can offer all-inclusive block flat fees because the amount of work and the likely government response can be somewhat anticipated in advance. This introduces a degree of predictability and affordability in legal fees that can be wholly absent from other types of litigation.

However, you need to be aware that not all Federal Court immigration judicial review legal fees are created equally. I've been litigating cases for 23 years, and done hundreds of trials and appeals, including appeals at the Supreme Court of Canada. All judicial reviews or appeals consume a lot of lawyer time to do a good job and obtain an optimal outcome.

For non-immigration JRs before the Federal Court and provincial Superior Courts, I find most lawyers of similar experience and skills charge roughly similar fees for such JR work, perhaps within a range of about 1/3 higher or lower depending on who you call. This relative similarity of fees makes sense, since ultimately even block flat fees are based on time required to be spent on a case. If lawyer hourly rates are somewhat similar, then their block fees should also be similar. 

If you figure that a Federal Court JR for immigration or any other kind of matter requires a day in court to argue, plus several full or part days to prepare a detailed application record, draft a persuasive factum of written legal argument, research the authorities to prepare a compelling casebook, negotiate with Department of Justice counsel, and coordinate with the Court Registry, you can see that a properly prepared JR is really a lot more work than pretty much any kind of non-litigious immigration application like a spousal sponsorship or Express Entry. Additionally, more lawyer time as compared to law clerk time is usually required to be devoted to an immigration JR than is the case for non-litigious immigration applications.

Plus a Federal Court immigration JR requires even more work than a normal JR, because you’re fighting two battles: the first for the Court to grant leave to bring the JR, the second to argue the merits of the JR itself. Although the first stage is entirely a paper process, so there won’t be any day in court, there will still be lots of prep that can only partly be recycled later for the JR itself if leave is granted. 

However, having researched the issue I’ve noted a strange trend where relatively similar fees are charged by immigration lawyers - myself included - for immigration application paper processes like spousal sponsorships or Express Entry, but ridiculously low fees are sometimes charged for immigration JRs. All JR work is time based, so I can only conclude that very minimal time is being spent on their preparation. Much like the car that seems to be too good a deal to be true, beware Federal Court JR fees that are possibly even lower than an immigration paper application's fees, and question what those super low fees really get you. You may need to decide: do I prefer to save a few dollars, or do I prefer to stay in Canada. 

 

Gordon S. Campbell is an immigration lawyer who represents clients throughout Canada before the IRB, Federal Court, Federal Court of Appeal and Supreme Court of Canada. He previously served as counsel to the IRCC, CBSA and with the Federal Prosecution Service. Lean more at www.compleximmigration.ca.

How to Navigate Semantic Minefields of ETA Questions for Air Travellers to Canada #2: Interpreting the Criminality Question

How to Navigate Semantic Minefields of ETA Questions for Air Travellers to Canada #2: Interpreting the Criminality Question

In our continuing series on the still freshly minted and creating so much hassle for air travellers to Canada but here to stay ETAs, today we deal with the confounding question: “Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country/territory?” Might seem simple at first glance, but wait. They’re asking if you’ve ever done anything, anywhere in the world that no one other than you knows about! 

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The Creeping Expansion of “Criminality” Questioning for Immigration Admissibility

Canada has experienced a troubling creeping expansion of the wording of criminal inadmissibility immigration screening questions over the past few years in all Immigration, Refugee, and Citizenship Canada (IRCC) application documents. In the good old days you were only asked if you have ever been CONVICTED of any criminal offence in any country or territory. That’s consistent with the wording of s. 36 of the Immigration and Refugee Protection Act which rules foreign nationals inadmissible for certain types and degrees of criminality based on actual “convictions.” 

Having “committed” or been “arrested” or “been charged with” thus become of questionable relevance to legitimate immigration screening. True, there are some other vaguer immigration inadmissibility provisions in Canada’s laws concerning associations with organized crime, terrorism or war crimes, but these are going to be much less common skeletons in the closet for the vast majority of the world’s population than is a shoplifting or impaired driving conviction. However, now Canada seems to be demanding you disclose that pack of gum you stole from the corner store and no one found out about when you were 12 years old. 

Immigration Questions as Semantic Minefields

Canadian law doesn’t impose some subjective “good character” screen on everyone who wants to enter. You aren’t applying to be called to the bar! But the committed-arrested-charged wording nonetheless potentially poses a semantic minefield. 

To a lawyer, there is a huge difference between actually being “arrested” and only being “detained.” And what amounts to having been “charged” with an offence that is quickly dropped and expunged? And "committed," what does that even mean? 

It gets even worse, because no one can agree on what “criminal” even means. Is the criminalness to be measured by the standards where you are coming from, or by the standards of the place you are travelling to? In Canada, it certainly means anything found in the Criminal Code. But also usually includes offences in the Controlled Drugs and Substances Act. But does NOT include all entires appearing in a CPIC (Canadian Police Information Centre) printout, as those include federal regulatory offences, even though it is commonly referred to as a “criminal record.” 

Is it safest to err on the side of providing too much information in your ETA, and admitting to that chewing gum theft that no one else knows about? Or are you better to play dumb and coy, and not disclose those 3 impaired driving convictions because under Australian law they aren’t considered “criminal"?

Even as a lawyer who spends a lot of time thinking about these questions, I don’t have any ready answers other than to say everyone’s situation needs to be carefully evaluated on a case by case basis, according to both Canadian law and the current state of Government of Canada policy. 

Say “yes” too readily, and you’re likely to get denied entry for something that should not have excluded you from Canada. Say “no” too quickly, and you may be accused of a misrepresentation which could get you prosecuted and barred from future entry to Canada, even if the thing you said “no” for would not in itself have excluded you. 

Confused? I know I am. Thus my case by case approach to how these questions should be answered.

Top 5 Lawyer Tips Answering ETA Criminality Question

Overall tips I can offer:

  1. Canada will judge if an act is “criminal" by Canadian legal standards, so you need advice from a Canadian lawyer.
  2. Even if your “conviction” has been expunged under your own law, and thus in theory never existed, the legal concept of expungement doesn’t exist in Canadian law. We only do pardons, and we don’t even call them pardons anymore (they’re now record suspensions).
  3. “Charged” is a dangerous terms, because it potentially requires you to disclose all sorts of unjust accusations that never went anywhere. Here it is probably best to focus on its linkage to the word “criminal” as if it wasn’t a “criminal” charge, you don’t need to disclose it. But if it was criminal, and it was a “charge” in the sense of an official document that brought you before a court, you’ll likely need to say "yes."
  4. “Arrested” means different things in different countries. Although the English term derives from the French word to stop, the English term has taken on a strictly legal formal meaning that goes far beyond mere stopping someone from leaving. So if the police grabbed you, slapped cuffs on you, and threw you in the back of a cruiser, yelling “you’re under arrest” then yes, you were probably arrested. But if they just stopped you to talk to you, even telling you you weren’t free to leave, and then asking you to accompany them to the station to give a statement, at least under Canadian law that all might have been a detention. 
  5. Asking about “committed” I find downright offensive. You could in fact have been arrested for, charged and convicted of an offence, and never “committed” it. 

We're not likely to get much tribunal or court direction on ETA questions, as those excluded from Canada because of ETAs will rarely be before an independent decision maker to contest the process. So instead we all need to rely on what are proper grammatical interpretations, backed up judicial precedent formed in other contexts. 

Claiming Birthright Canadian Citizenship: Top 3 Application Errors to Avoid

It might not be all that surprising in the current climate, but my law firm continues to see a surge of applicants seeking to confirm their own or their children's Canadian citizenship. Confirmation of citizenship is quite different from applying to become a citizen. For those seeking confirmation they're already all citizens, but have never previously had a reason to seek out official confirmation from the Government of Canada that they have a right to work, study and live in Canada on an unlimited basis, including carrying a Canadian passport and voting in Canadian elections if they've reached the age of 18.

A lot of the people who retain us to help them with Canadian citizenship confirmation have already tried to apply for confirmation, but the government returned their applications unapproved because of failure to fulfill the requirements. Sometimes those applications have been returned multiple times, leading to many months - perhaps even years - of frustration.

Yes, there's a DIY guide to citizenship confirmation. And yes, you can do it yourself. But if speed, an error free application, and lack of frustration is important to you, you should give serious consideration to using a citizenship lawyer. The cost is pretty reasonable as compared to some other legal services, and is less expensive even than many other immigration law services.

The top three citizenship confirmation errors we've lately seen in our practice relate to birth certificates, translation of documents, and photographs. All seem deceptively simple things to provide to the government. And yet, the government finds fault again and again with what is submitted because the government won't hold your hand, won't coach you through the standards, and applies a standard of perfection. 

1. BIRTH CERTIFICATE ERRORS

a. Not understanding what is a certified copy

A certified copy isn't just a photocopy. And you can't take a copy into someone qualified to make certified copies without also bringing along the original, so that person can compare the original to the copy. That's what certified means: someone trustworthy has seen the original, carefully compared it to the copy, and then stamped and written on the copy, in the customary manner applicable in the territory the certification is being made in, that the copy is "true" to the original.

In Canada, notaries, commissioners of oaths and lawyers can usually create certified copies wherever your live. There may also be other officials like bank managers or school principals who are authorized to do so.

Overseas you should probably stick with a notary who can create a "Notarial Copy" which is generally even better than a certified copy.

Family members can't certify other family members' copies.

b. Attempting to use documents issued in Quebec prior to 1994

In Quebec, you might need to apply for a new birth certificate prior to applying for citizenship confirmation, even if you've already got a birth certificate or baptismal certificate. The Federal Government doesn't like those Quebec documents if they were issued prior to 1994.

Who knows why. I did two law degrees in Quebec, and I don't know why, though I suppose I could find out. You've just got to accept that that's the way it is, and apply for a more recent document. 

2. TRANSLATION ERRORS

In Canada we all know there are only two official languages: English and French. Other than those pesky documents from Quebec mentioned above, the Government of Canada does not have any firm rules on document standards from a country which has produced the documents you might be submitting, but it does require that they be in English or French, otherwise the Canadian government worker processing them won't be able to read them. The government won't translate your documents for you, you've got to pay to do it yourself.

The documents can be translated either in Canada or overseas. Probably in Canada is easiest, since then it's easier to prove you've used a certified translator; make sure you submit that proof. If done by someone who isn't certified in Canada, you'll need to submit a separate affidavit from that person attesting to not only the accuracy of the translation, but also the fluent proficiency of the translator in both the language being translated from and the language being translated to.

The government will NOT take your word on the accuracy of translations without an official translation.

3. PHOTOGRAPH ERRORS

You'd think photos would be the easiest thing of all to provide. We've all now got camera phones that take great pictures. I often try to justify my overpriced new phone to myself by thinking that I actually bought a really great camera, with a phone thrown in for free. But the Government of Canada has yet to enter the digital photo age.

When I went to get my United Kingdom passport (I'm a dual citizenship), they were more than happy to accept the $3 mall photo booth strip of photos I had procured. Not so with Canada. Mess up the photos, and your application will get returned, sometimes with little explanation as to what went wrong.

Photos have a mere 15 requirements to qualify as acceptable (as quoted from the IRCC website):

  • Photographs must be printed on quality photographic paper.
  • Provide the name of the photographer or the studio, the studio address and the date the photos were taken on the back of the photos
  • Print the name of the person on the back of the photos.
  • The photographs must be identical and taken within the last six months. They may be either black and white or colour.
  • The photographs must be clear, well defined and taken against a plain white or light-coloured background.
  • If the photographs are digital, they must not be altered in any way.
  • Your face must be square to the camera with a neutral expression, neither frowning nor smiling, and with your mouth closed.
  • You may wear non-tinted prescription glasses as long as your eyes are clearly visible. Make sure that the frame does not cover any part of your eyes. Sunglasses are not acceptable.
  • A hairpiece or other cosmetic accessory is acceptable if it does not disguise your normal appearance.
  • If you must wear a head covering for religious reasons, make sure your full facial features are not obscured.
  • The frame size must be 50 mm x 70 mm (2″ x 2 ¾″).
  • The photographs must show the full front view of the head, with the face in the middle of the photograph, and include the top of the shoulders.
  • The size of the head, from chin to crown, must be between 31 mm (1 1/4″) and 36 mm (1 7/16″).
  • Crown means the top of the head or (if obscured by hair or a head covering) where the top of the head or skull would be if it could be seen.
  • If the photographs do not meet the specifications, you will have to provide new photographs before your application can be processed.

Don't staple the photo to the application - a paperclip is the most severe form of attachment tolerated.

So to avoid errors, especially as to size, just go to a passport photo place. Drug stores often do this. For about $10 or $15 dollars, you'll get your two photos. The Government of Canada is really picky about its photos.

Succeeding in your citizenship confirmation application involves not just adhering to the letter of the law, or the letter of government policy, but also the letter of the minute application instructions. Misinterpret those instructions, and you'll be receiving a return to sender envelope from Immigration, Refugees and Citizenship Canada. 

Electronic Travel Authorization (eTA) Confidential: An Immigration Lawyer Tells You What You Need to Know to Not Be Refused Entry to Canada

Shocked you’ve suddenly got to fill out something called an Electronic Travel Authorization (eTA) in order to come to Canada by air, even though you’ve entered many times before Visa-free? Not sure how to answer the eTA questions? Refused entry to Canada because of an eTA, even though you've been welcomed many times before? You’re not alone.

What is an Electronic Travel Authorization (eTA)?

It’s been less than a year since the Government of Canada in November 2016 imposed the eTA requirement on nationals of all Visa-free entry countries (over 50 states), other than Americans. Although the Government seems to have promoted eTAs as not a big deal, in many ways these are mini-Visas, with all the attendant risks, hassles and delays that Visas entail. Supposedly 3.5 million people a year will be applying for eTAs. Previously, only a tiny fraction of those were asked the eTA's probing questions after arriving at a Canadian air port of entry. 

Canada Border Services Agency Officers have the right to ask foreigners seeking entry to Canada all manner of probing questions, but airports are busy places, and most people never were asked questions about things like prior arrests. Now, all foreigners (other than Americans) get asked through the eTA.

While you don’t need to apply for an eTA if arriving in Canada by land or sea, how many people actually do that other than Americans? Canada is not an easy place to get to unless you fly. 

What's the Difference Between a Visa & an eTA?

The main difference between an eTA and a Visa, other than cost and waiting period, is that the eTA is a self-reporting tool that is computer screened. Only if an applicant answers YES to particular questions, or is otherwise flagged in an electronic database, will the eTA application be escalated to human review. By comparison, all Visas supposedly get some human attention (some more than others). 

What's Risks Do eTAs Pose for Travellers?

While the Government of Canada rightly points to the fact that eTAs are only screening for the admission criteria that always applied to any foreigner seeking entry to Canada and which were already tested for in Visa applicants, detailed screening of another 3.5 million people a year is sure to result in thousands of additional refused entries to Canada.

While the government touts the huge numbers of eTAs successfully issued, what is not focussed on is the number of people refused entry because of an eTA. The most common reason for refusal is likely because of disclosure of minor criminal records that the Government of Canada would not otherwise have known about were it not for the eTA questioning. But refusal for health reasons, for being unable to financially support yourself while in Canada, or for being unlikely to leave Canada all also pose refusal risks.

How Should I Answer the eTA Questions?

If you only had to fill out your name, birthdate, address and purpose of visit, the eTA would be easy. But instead, you’re faced with questions like “Do you have a serious health condition for which you are receiving regular medical treatment?”

ou might be wondering, what qualifies as “serious” and what is meant by “regular” or even “treatment"? Good question! There are a lot of important nuances in that one question alone. You don't want to minimize a condition, and then be accused of lying. But you don’t want to unjustifiably exaggerate a condition, and then be refused entry when in fact your condition wasn’t all that serious, and your treatment wasn’t particularly regular. 

In future blog posts, I’ll deconstruct the ways to approach each questions. 

The Government of Canada has produced a 22 page guide on how to fill out the ETA: 

http://www.cic.gc.ca/english/pdf/eta/english.pdf

While the guide is helpful, in some ways it raises more questions than it answers, like in response to the medical question it states: "Select YES if you are receiving regular, ongoing medical treatment for any mental or physical condition.”

But note that the guide's "clarification" isn’t using the same question that was asked in the eTA. The word “serious” has disappeared. The word “ongoing” has appeared.” And mental as well as physical conditions have now been added, leaving one to wonder does taking a low dose anti-depressant need to be disclosed? To me, it certainly doesn’t qualify as “serious health condition” and “regular medical treatment,” but it might qualify as ongoing treatment for a mental condition, especially if some psychotherapy in thrown in. My take would be to follow the wording of the actual question, and not the wording of the guide. But you can hopefully see how confusing this can get, and how easily it might lead to misunderstandings leading to entry to Canada problems.

Three Guiding Principles for Filling out eTAs

For now, I offer you three guiding principles for completing an eTA:

  1. Don’t Lie - a "misrepresentation" can bar you from visiting, working or studying in Canada. The misrepresentation may be considered to be far more serious by the Government of Canada than the thing you were trying to hide. Even if you think the government will never find out, you can't be sure about what database access the government might have. I worked for the government for years, and I was never sure. You can be sure that eTA applicants home countries will share more data with Canada than will Visa-required countries, because the eTA countries tend to be close allies of Canada.
  2. Don’t Answer Yes Without First Obtaining Legal Advice - these are all loaded, legal questions. If you're asked one of them in person at an airport, you aren't going to be able to have the opportunity to obtain legal advice. But with an eTA, you can talk to a lawyer. A lawyer local to where you live won't be much good to you, because it's unlikely he or she will be qualified to give advice on Canadian law. 
  3. Don’t Book Travel Prior to Obtaining an eTA - they’re good for five years, and only cost 7 dollars. So this should be the first step of your trip planning. 

We offer “eTA Quick Legal Consults” (eTA QLC) for those faced with filling out an eTA, and who have concerns about how questions should be answered based upon their personal facts. And on how to resolve eTA refusals. 

The Government of Canada hasn’t changed any of the entry rules to Canada. Reasons for refusal remain the same as they have been. But with eTAs they’ll now have a lot more information on everyone, so you need to treat the eTA document as seriously as you would a Visa application to another country or a passport application in your own country. 

Why You Should Care About Jus Soli & Jus Sanguinis if You Want to Claim Canadian Citizenship

Why You Should Care About Jus Soli & Jus Sanguinis if You Want to Claim Canadian Citizenship

In 2017 I’ve seen a huge uptake in potential client enquiries, especially from Americans, about confirming their proof of Canadian citizenship.

Canada has one of the world’s more liberal citizenship regimes, where you can be eligible for Canadian citizenship and acquire proof of that citizenship primarily by way of: (1) location of birth in Canada; (2) at least one parent being a Canadian citizen; or (3) by a naturalization application process after being accepted as a permanent resident.

The Simplicity of Canadian Birthright Citizenship - Jus Soli (Right of Soil)

Lawyers love Latin, and citizenship law is no exception. Jus Soli is the technical legal term for citizenship acquired through birth. Only about 30 countries in the world - almost all of which are in North and South America - unconditionally grant citizenship to anyone born within their territories.

Lex Soli is the term used for the body of law governing if and how Jus Soli applies. Canada does have a narrow exception to Jus Soli in that if neither parent is a Canadian citizen or permanent resident, and either was employed at the time of birth by a foreign government or international organization in Canada, then you’re not entitled to Canadian citizenship even if you’re born in Canada. This is more than a theoretical exception, as Canadian-born Deepan Budlakoti found out when he was effectively rendered stateless through this process. 

A certified copy of your birth certificate from a Canadian province or territory is the main document you’ll need to submit with your application to claim Canadian Birthright Citizenship.

The Complexity of Canadian Citizenship by Descent - Jus Sanguinis (Right of Blood)

Citizenship by Descent - also known as Jus Sanguinis for Latin lovers - gets more complicated than Birthright Citizenship. There are several exceptions to Jus Sanguinis in Canada, and not just who you were born to but also your date of birth can be very important.

Generally the Citizenship Act grants Canadian citizenship to those born outside Canada to at least one Canadian parent, but the Act was recently changed to limit that citizenship by descent to one generation, meaning the children of children who so acquired citizenship by decent won’t also become Canadians automatically. Thus you’re a Canadian if one parent was a Canadian, but not if only a grandparent was a Canadian. 

However, and this is a BIG however, the "first generation rule" only came into force on 17 April 2009 and is not retroactive. So if you were born prior to 17 April 2009 when the new rule came into effect, you’re in luck and can still claim Canadian citizenship regardless of how many generations back your Canadian direct ascendents were born in Canada (subject unfortunately again to some exceptions). This is especially important for Americans, who may be descended from Canadians who moved to the United States for economic reasons a number of generations ago.

For proof of citizenship by descent, in addition to a copy of your birth certificate from the country in which you were born listing the names of your Canadian parent(s), you’ll also need proof of at least one of them being Canadian such as their own birth certificates or their citizenship certificates. If you’re hoping to prove a higher generation of descent, you’ll need birth certificates and proof of citizenship up the chain of descent. 

You’ll also need certified translations of any documents in languages other than French or English. 

Unlike Birthright Citizenship, Citizenship by Descent can get very complicated. I often recommend a consultation with an immigration lawyer for those hoping to claim Citizenship by Descent in order to avoid frustration and disappointment over (mis)assumptions and the proof required.

Why You Need to Apply as Soon & as Completely as Possible for Proof of Canadian Citizenship

Current Government of Canada processing times for proof of citizenship range from five months to a year, depending on the complexity of your application. Even the slightest error in the documents you submit can result in your application being returned and you having to completely restart the process. Thus you should apply as soon and as completely as possible. You’ll find all the required government application forms online, including an estimate calculator for current processing delay times.

Obtaining proof of citizenship is something I tell my clients they can do for themselves. But if success on the first try and in as rapid a means as possible is important to you, consider using an immigration lawyer. Our fees (and the fees of most other lawyers who handle citizenship) aren’t especially high as compared to other kinds of more complicated immigration processes.

Another option most lawyers will offer is a consultation on eligibility for citizenship, when you are thinking that you may or may not want to undertake the application yourself, but wish to definitely confirm before doing so whether or not you’ll qualify. Canadian citizenship through birth or descent isn’t discretionary - either you’ll qualify, or you won’t. 

Top 5 Solutions to Being Declared Inadmissible for Immigration to Canada

Top 5 Solutions to Being Declared Inadmissible for Immigration to Canada

While Canadians have lately been hearing lots of anecdotal refused entry stories concerning those travelling to the United States, we don’t hear as often about all the foreign nationals who are turned away at Canada’s borders after being declared inadmissible.

No, we’re not talking about arch-criminals or terrorists here. We’re speaking of regular people. People with jobs. With children. With dreams. But for whom past or current issues in their lives have led to Canada shutting its doors on them. 

The Five Main Types of Immigration Inadmissibility to Canada

This door slamming affects both those trying to enter temporarily, and more commonly those seeking to immigrate on a permanent basis. There are primarily five bases for inadmissibility:

  1. Criminal Inadmissibility;
  2. Medical Inadmissibility;
  3. Financial Inadmissibility;
  4. Misrepresentation Inadmissibility;
  5. Security Inadmissibility.

Everyone wanting to come Canada for a holiday, temporary work, to study, or to settle permanently needs to reflect on whether anything in their backgrounds might lead to Canada refusing entry. Even permanent residents already able to freely come and go from Canada can get trapped by criminal and misrepresentation inadmissibility, and wind up permanently barred from their country of choice!

How to Know if You Might Be Inadmissible to Canada

How do you know you might have an inadmissibility problem before the Canada Border Services Agency or Immigration, Refugees and Citizenship Canada tells you? Follow the following self test questions:

Q: Have I ever been convicted of a “criminal offence,” or an offence that even if it isn’t “criminal" in my own country, might fall into the criminal category somewhere else? For Canada, this generally does NOT include driving offences, unless alcohol, death or serious injury to another was involved. It does include anything to do with drugs (even very small quantities of “soft” drugs), theft, fraud, dishonesty to law enforcement or the courts, and violence.

Q: Do I have a medical illness that could require significant medical treatment - now or in the future. This usually won’t apply to those only seeking to come to Canada as visitors for a few months, but can be a major impediment for long term residency because of the free availability of publicly funded health care.

Q: Do I have enough funds (with proof) to support me while I am in Canada, or have I obtained authorization to work where that employment income would support me? 

Q: Have I lied or made a misstatement at any time in dealing with the Government of Canada concerning my immigration? This can be a tricky problem to diagnose, as you might have been truthful and the government thinks you were lying, or you might have inadvertently misstated something that you believed to be true at the time you said it. 

Q: Could I be considered a security threat to Canada? This is one you really shouldn’t worry about, as very few people will fall into this category, and making such a determination falls on the government. 

How to Solve Your Canadian Immigration Inadmissibility Problems

So what’s to be done? If you’ve got a potential or actual inadmissibility problem, you definitely need a lawyer. There are some forms of immigration that you might be able to do yourself, but inadmissibility qualifies as “complex immigration” with all sorts of convoluted policies and case precedents; get a professional to help you.

Each type of inadmissibility has its own fix, all of which depend on presenting strong factual evidence to the government that you aren’t in fact inadmissible, or should be excused from your inadmissibility because of your personal circumstances. 

  1. For criminal inadmissibility, you may have already been “deemed rehabilitated” if the crime(s) was minor and in the distant past. Or you might need to submit a formal application for rehabilitation. You may need to gather criminal record checks from every place you have lived, as well as court records concerning every criminal incident. An opinion from a foreign lawyer might even be required if there is debate over how to translate the offence you were convicted of to an equivalent offence in Canada, since offence severity has a significant impact on rehabilitation potential. 
  2. For medical inadmissibility, securing expert opinions from medical doctors may be required.
  3. For financial inadmissibility, producing bank account and investment statements and income tax returns could be necessary. 
  4. For misstatement inadmissibility, you might need to convince the government that you never really made a misstatement. 
  5. For security inadmissibility, you might need to convince the government that you are not the person the government thinks you are, or that the information the government has received about you is unreliable. 

Some of these fixes might be accomplished through negotiations, others by going to the Immigration & Refugee Board, and some might require recourse to the Federal Court.