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Success: Admissibility Hearing @ Immigration Division

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Clients come to CIL for all types of situations. We help clients apply for Passports. We help them apply for Police Clearance Certificates and Work Permit. We handle many applications for temporary status. Typically, those files are, relatively straightforward and the work is predictable. Then, there are complex, messy cases that take turn after turn. This was one of the latter cases.

Our client came to us more than one (1) year ago, after his Post Graduation Work Permit (PGWP) was refused. As you may have read from our Google Reviews, we have been successful with many international students who have had their PGWP refused and we were able to get them back on track to PR status. At the beginning, we thought that was one of those cases. We did the PGWP and Restoration application. Soon thereafter, CBSA got involved and the situation became serious. CBSA made the determination that our client was inadmissible based on A38 – Medical Inadmissibility:

  • 38 (1) A foreign national is inadmissible on health grounds if their health condition

    • (a) is likely to be a danger to public health;

    • (b) is likely to be a danger to public safety; or

    • (c) might reasonably be expected to cause excessive demand on health or social services.

In legal terms, we call the above test the “excessive demand” test. At that time, we got the disclosure package from CBSA and we knew this was going to be a tough case.

At the same time, our client let us know that he got married to a Canadian citizen. They had been living together and they seemed to have a genuine relationship but they were reluctant to get legally married with everything going on. They decided to make their commitment to each other, to try to ensure that our client would not be removed/ deported from Canada.

We then assisted them with an SCLPC Class application and submitted the package to IRCC. As per above, CBSA has already referred our client to the IRB based on A38 – Medical Inadmissibility. So our job was to give the IRCC Officer as much time as possible to make a decision on the SCLPC Class application. We needed to ensure our client was not removed from Canada. SUCCESS! We got a positive decision from the Immigration Division!

We have provided a rough timeline of events below. I want to give credit to Naomi for spending hours (upon hours, upon hours) on this file, making sure the client and his family understood every step.

Date Action

 
1 SEP 2022 Client met Alastair for consultation regarding PGWP refusal

 
8 SEP 2022 Client retained our services for PGWP and Restoration

 
12 OCT 2022 Our office submitted application for PGWP and Restoration

 
2 NOV 2022 Client met Alastair for consultation regarding Admissibility Hearing and Spousal application

 
21 NOV 2022 Client retained our services for Spousal application

 
6 DEC 2022 Client retained our services to post-pone and represent Admissibility hearing scheduled for 19 DEC 2022

 
7 DEC 2022 Our office submitted a request to the ID to post-pone client’s admissibility hearing

 
7 DEC 2022 The ID responded with alternative Hearing dates and we re-scheduled for 8 FEB 2023 @ 11:00 am CST

 
23 JAN 2023 Submitted SCLPC application

 
8 FEB 2023 Admissibility postponed to 25 APR 2023 @ 10:30 AM due to not having enough time for witnesses

 
21 FEB 2023 IRCC provided temporary application number for SCLPC application

 
1 MAR 2023 IRCC sent Medical Examination instructions

 
28 MAR 2023 IRCC sent a letter confirming Sponsor meets the eligibility requirements as a Sponsor

 
5 APR 2023 IRCC sent a letter about reassessing clients eligibility requirements

 
12 APR 2023 Our office submitted a webform to IRCC to put PR application on hold

 
14 APRIL 2023 IRCC sent a letter confirming PGWP and restoration application was transferred to IRCC office in Edmonton

 
25 APR 2023 Admissibility hearing postponed due to member availability

 
13 JUN 2023 ID reached out to our office to re-scheduled Admissibility Hearing for 11 SEP 2023 @ 10:30 CDT

 
29 JUN 2023 IRCC sent a letter confirming client meets eligibility requirements as a Principal Applicant but still needs to pass the medical, security and background checks to become a PR

 
6 JUL 2023 IRCC sent a letter to confirm his PR application is being transferred to the IRCC office in Etobicoke for further assessment

 
8 AUG 2023 IRCC refused clients PGWP and Restoration application

 
9 AUG 2023 Client retained us to submit a Spousal Open Work Permit based on SCLPC application in process

 
10 AUG 2023 Our office submitted Spousal Open Work Permit via the Representative Portal

 
11 SEP 2023 Date of Admissibility Hearing

 

Our office and the ID did not know if client is a member of the Family class and resumption of Admissibility Hearing was scheduled for 2 NOV 2023

 
20 SEP 2023 Our office submitted a webform requesting if client has been determined to be a member of the Family Class

 
3 OCT 2023 Our office sent an email to CBSA requesting if they know if client has been determined to be a member of the Family Class
5 OCT 2023 CBSA provided GCMS notes and let us know that he sent 2 emails to IRCC

 
5 OCT 2023 Our office provided a copy of the SCLPC and OWP application to the ID and CBSA for their consideration by email and portal

 
19 OCT 2023 Our webform that was submitted on 20 SEP 2023 was added to the file

 
19 OCT 2023 Clients received a cold call from IRCC – Interview regarding genuine marriage

 
26 OCT 2023 Received VERY GOOD NEWS! IRCC Officer provided confirmation that client is a member of the Family Class

 

Success: P/GP Appeal re MNI

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The Parent and Grandparent sponsorship application has a storied past. Previously, the Conservative government suspended the application causing significant distress and hardship for individuals in Canada who sought to have their parents and/ or grandparents with them in Canada. The Conservatives replaced this application with the Super Visa, thus cutting off parents and/ or grandparents from permanent resident status. The Liberal government made a campaign promise to reinstate this application and they acknowledged the importance of parents and grandparents in the lives of people in Canada. The Liberals were successfully elected based, in part, on their promises to support individuals and families in Canada, including immigration reform. The reinstatement of the P/GP application was an important plank of the Liberal’s message. At first, once they took power, they were reluctant to allow many sponsors; however, we pushed them and we reminded them of their promises. In the end, they have allowed many sponsors to bring their parents and grandparents to Canada. We continue to push the government to accept more parents and grandparents.

For many of our clients, they need their parents to be with them in Canada. There are cultures and traditions that are based on the extended family being together. We regularly fight for our clients so they can have all their loved ones with them – under one roof.

Yesterday, we got a positive result from the IAD on a sponsorship application that was refused. It was refused based on our clients not meeting the Minimum Necessary Income (MNI) requirement for the application. We were able to work with the family and produce multiple packages of documents for the tribunal and for Minister’s Counsel. The key to winning this case was all the time and energy that we spent on our disclosure packages. We were able to clearly demonstrate the strong H&C factors. We had multiple negotiations with the Minister to achieve a positive result.

Congratulations to our clients! This application has been in process for many years. This family has been trying to reunite with their family members for a long time. This decision does not, unfortunately, mean that the applicant will be on a flight to Canada tomorrow. Even after this positive decision by the IAD, there are more steps before the applicant will be granted PR status.

For this appeal, we relied on the IRCC guidelines for the MNI calculation:

Income required for the 3 tax years right before the day you apply (sponsors applying in 2022)

Total number of people you’ll be responsible for 2021 2020 2019
2 people $32,898 $32,270 $41,007
3 people $40,444 $39,672 $50,414
4 people $49,106 $48,167 $61,209
5 people $55,694 $54,630 $69,423
6 people $62,814 $61,613 $78,296
7 people $69,934 $68,598 $87,172
If more than 7 people, for each additional person, add: $7,120 $6,985 $8,876

Since many sponsors may have been affected financially by the COVID-19 pandemic, the income requirement for the 2020 and 2021 tax years have been reduced to the minimum necessary income, instead of the minimum necessary income plus 30%.

Manitoba Phase 2 Reopening

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Based on the sacrifice and hard work of Manitobans, the province is very safe. We are extremely grateful for the good governance in our province to manage services during this COVID-19 pandemic. We are in contract with first responders, health care professionals regularly to ensure we have updated information for our clients. On Friday, I participated in a high level call with Minister Marco Mendicino (IRCC), organized by the Canadian Bar Association. The federal government as well as the provincial government have been working hard to manage our immigration system. Today marks Manitoba’s Phase 2 reopening and we hope that residents will continue to be conscientious of physical distancing guidelines.

Phase 2

At Clarke Immigration Law, we made significant changes in JAN2020 and we continue to adapt to the circumstances. Our goal is to operate in a manageable capacity without sacrificing the safety of our clients or our staff. We regularly review all of the options and variables to ensure that we can provide the best quality of service.

To date, Manitoba has only had 295 confirmed COVID-19 cases for a population of more than 1,200,000 residents and ZERO patients are in hospital. For comparison, our neighbours in North Dakota have more than 2,365 confirmed COVID-19 cases in a population of only 762,000. As per the graph, courtesy of Manitoba Health, there have been very few cases for weeks. I am not going to guess the myriad reasons why there are so many more cases in the USA on a per capita basis. It could be poor leadership. It could be poor services. It could be poor health care. It could be poor physical distancing. Regardless, Manitobans should be proud how we have managed this pandemic thus far.

For Phase 2, many businesses will be reopening, at different levels. I spoke with a business owner yesterday who was very excited to open his business at 50% capacity. Public gatherings of up to 25 people inside are now allowed and up to 50 people outside. Businesses & activities to resume include:

  • Golf courses
  • Gyms (limited)
  • Restaurants (limited)
  • School services (limited)
  • Bars (limited)
  • Bowling Alleys
  • Nail Salons
  • Tattoo Parlors
  • Sports activities for children (group max 25)
  • Daycares (group max 25)
  • School playgrounds

For more information on the government’s plan to reopen, please consult the details of Phase 2.  The PDF with additional details is also available.

We are assisting many clients who are eager to come to Canada. Please contact our office to book a consultation. 

Major Changes to Medical Procedures

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We recently had a conference call with IRCC regarding the major changes in policy to the treatment of cases with medical issues. These cases involve family members with health problems that may cause “excessive demand” on Canadian resources. Our office has been assisting many families with many cases of medical inadmissibility. The Warkentin case, filed with Federal Court, was key to having the policies changed.

It has been a pleasure to work with the Warkentin family and the community. We are thrilled and honored that our hard work has paid off. This has been a national effort and I applaud our colleagues in Toronto, in particular Adrienne Smith and all her hard work.

The changes have been reported on the IRCC website included a few details on the changes to how they process allegations of medical inadmissibility. The two (2) major changes listed are:

The new policy on medical inadmissibility strikes a balance between protecting publicly funded health and social services and updating the policy to bring it in line with current views on the inclusion of persons with disabilities. The changes include:

  • increasing the cost threshold for medical inadmissibility to 3 times the previous level, and

  • amending the definition of social services by removing references to special education, social and vocational rehabilitation services and personal support services.

This case has also been reported in the Winnipeg Free Press in an article by Carol Sanders. Here is an excerpt that that article:

On Monday, Immigration, Refugees and Citizenship Minister Ahmed Hussen announced changes to the medical inadmissibility provision of the Immigration and Refugee Protection Act so that Canada’s immigration policies “better align with Canadian values and reflect the importance that the government places on the inclusion of persons with disabilities.”

“This is really good news,” Winnipeg lawyer Alastair Clarke said after a conference call with Jon Warkentin and federal immigration officials Monday.

“We’re changing the law,” he said of those who spoke out against the 40-year-old immigration policy.

“If it did, then that’s great,” said Jon Warkentin by phone from the family’s home 320 kilometres northwest of Winnipeg in Waterhen. “That’s what we were hoping for, for some changes there. If our family was part of that, then that’s great.”

The Warkentin family have been pillars of the community in western Manitoba. Our goal is to help all families achieve their goals – for their benefit as well as the benefit to Canada. In our practice, we often see that the contributions of the families with medical inadmissibility issues are overlooked. We firmly believe that our clients are truly beneficial to Canadian society and they represent the future of our country.

Have you or any friends or family been accused of medical inadmissibility?

Currently, the law is in a state of flux. The IRCC policy changes have been announced; however, all the cases in the inventory within the government may be reassessed.

The relevant section of the law in IRPA sets out the section:

38(1) A foreign national is inadmissible on health grounds if their health condition

  • (a) is likely to be a danger to public health;

  • (b) is likely to be a danger to public safety; or

  • (c) might reasonably be expected to cause excessive demand on health or social services.

Any applicants who may fall under the above section of Canadian immigration law may have their applications reconsidered under the new procedures. We highly recommend that any applications with medical issues be reexamined by a professional, certified immigration lawyer to make sure the cases are handled properly. Feel free to contact our office directly with any questions or concerns.

Health Care for Int’l Students

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The Manitoba government recently announced that they are planning to repeal Health Care benefits for international students. Here at Clarke Immigration Law, we fundamentally disagree with this decision and urge Premier Pallister and his cabinet to reconsider this decision.

International Students Benefit Everyone

Our former Minister of Immigration and former profession at the University of Manitoba, John McCallum gave the keynote speech at the national CBA conference for immigration lawyers across Canada in 2016. During that speech, he highlighted the importance of supporting international students. These are highly skilled individuals who have been vetted by our learning institutions and they pay more in tuition for the privilege of studying in Canadian schools. These students, some of the brightest minds in the world, then seek to establish themselves and, possibly, their families in Canada.

Health Care

The Canadian health care system is arguably the best in the world. Doctors, nurses, nurse practitioners, health care aides and many other professionals ensure that we receive the best services available. US media just had a field day when Canadian doctors protested that they are being paid too much. Presumably, this would be very unlikely south of the border.

International students are savvy. They look at schools in Manitoba and compare them with schools elsewhere. One of the benefits of coming to our province is the health care benefits. To attract these students, we need to ensure that they know they will be taken care of during their studies.

Long Term Policies

I fundamentally believe that maintaining health care benefits for international students is in the long-term interest of Manitoba. These students spend their summers working and their winters studying. They become settled in the province and they become connected to their communities. With the time that they spend developing their relationships, both personal and professional, they deepen their ties to this province. Keeping talent is in the best interest for the future.

Small Savings for Big Sacrifice

Let’s be honest. Cutting health care for international students is going to save very little on the bottom line. For the most part, these are young individuals with minor health issues. They have already been vetted before coming to Canada. This type of cost-cutting shows a short term perspective. The sacrifice to the province will be significant if international students decide to go elsewhere with their tuition dollars.

We urge the Manitoba government to reconsider this decision. This change in policy is not in the best interests of Manitoba.

 

WFP: American family gets another chance to stay in Canada

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Clarke immigration law has been representing the American family with their application for Permanent Resident Status in Canada through the MPNP-Business program. The media has been extremely supportive and this American family has received significant support from their rural community in Manitoba and across Canada.

The Winnipeg Free Press published an article with an update yesterday. Here is an excerpt:

MPNP

MPNP

The Warkentin family, faced with a looming deportation deadline, learned this week Immigration, Refugees and Citizenship Canada is allowing them to renew their application for permanent residency.

“Canada is letting us reopen our file and we have 60 days to resubmit more information and show our worthiness,” Jon Warkentin said over the phone from the family-owned Harvest Lodge outfitting business on the Waterhen River.

The Warkentins came to Canada from Colorado in 2013 to operate the outfitting business. They applied for permanent residency, intending to put down roots in the village of Waterhen, about 320 kilometres northwest of Winnipeg.

A year after they arrived, the family was given a bleak diagnosis: the youngest of Jon and wife Karissa’s four children, then-three-year-old daughter Karalynn, had epilepsy and global-developmental delay.

The diagnosis threw a bureaucratic wrench into the family’s dreams of staying in Canada.

Ottawa denied their application this spring on the grounds Karalynn might cause “excessive demand” on health or social services in this country. As a result, the entire family faced being the imminent prospect of being forced out of the country when their current work permit expired Nov. 24.

This summer, they hired Winnipeg lawyer Alastair Clarke to explore their options.

Clarke worked through the bureaucracy, trying to convince federal officials to give the family a second shot. At the same time, he filed a motion in to have a federal judge look at the case.

It was the bureaucracy that came through first, Warkentin said, adding the family now has the choice of withdrawing the court action. The second chance offered this week gives the Warkentins what they wanted from a judge, without the need for time in court.

“The permanent residency is back in process, and they qualify for an extension to their work permit,” Clarke said.

Click here to read the full story by Alexandra Paul.

We will continue to support this American family with their goals of coming to Canada. This family came to invest in Manitoba as business leaders. They have invested more than $600,000.00 in Canada and, we believe, they will be contributing to Canada for decades in the future.

Global News: Immigration Canada reopens application

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We want to thank Global News for highlighting our cases. The media attention and support from the community has been helpful to bring light to these important issues. We use all the tools available to us to make sure our clients get positive results.

Here is an excerpt from the article posted on Global News:

The decision to reopen the family’s case comes after more than a month of back and forth between the Department of Justice, which represents Immigration Canada in legal matters, and the family’s lawyer, Alastair Clarke.

Clarke said the decision by Immigration Canada to overturn its earlier ruling – which would have seen the Warkentins and their four children sent back to the United States once their temporary working visas expire in November – is a direct result of public pressure and attention placed upon the government following Global News’ in-depth look into the family’s situation.

“We received notification today from [Immigration Canada] that they have reversed their decision and reopened the Warkentin application,” said Clarke, who argued the government overlooked important information and relied on unfounded medical diagnoses when initially denying the family’s application. “We have been working on this file for a long time and thank you to Global News for all the coverage in addition to all the public support.”

For the full article, please visit the Global News website. For this case, we have also been working with the MP’s office as well as MPNP. We will continue to work on this file to make sure that Jon and Karissa’s status in Canada is secure. We believe that this result was achieved through our litigation strategy to make sure that we use all our resources to ensure that IRCC Officers fully consider all the circumstances of the case. In cases where the IRCC Officer has not fully considered all the information, we want to work with Officers and Managers to make sure they understand all the important aspects of the application.

We will be continuing to work on medical inadmissibility files and helping to assist families in Manitoba. If you or your loved ones need legal assistance, please contact our office.

“Warkentin family still battling to overturn a decision from Immigration Canada”

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FROM 730CKDM.COM: 

The Warkentin family from Waterhen are still battling to overturn a decision from Immigration Canada which denied them Permanent Resident status because of their daughter’s disability.

The family has hired Alastair Clarke, an immigration lawyer from Winnipeg to handle their case.

Clarke provides some insight to Immigration Canada’s decision.

“Unfortunately medical inadmissibility are not uncommon. Generally the individuals who face this type of issue come to me before a refusal. In this case the Warkentin family responded to the fairness letter, submitted all the evidence and then after it was refused, that’s when they came.”

If the decision cannot be reversed, the Warkentins could face moving back to the U.S. by November of this year, when their visas run out.

Spousal Open Work Permit – Extended to Dec 2017

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As expected, the hugely successful Open Work Permit program for applicants under the In-Canada Spousal Sponsorship application has been extended for another year. Part of the announcement:

Ottawa, December 7, 2016 — Family reunification is a core immigration priority for the Government of Canada. In addition to the changes made today to process spousal sponsorship applications faster, we are also extending the open work permit pilot program until December 21, 2017, to give spouses a chance to work while their application is being finalized.

To be eligible for an open work permit, you must be a spouse or common-law partner living in Canada who is being sponsored under the spouse or common-law partner in Canada (SCLPC) class. You must have valid temporary resident status (as a visitor, student or worker) and live at the same address as your sponsor.

Elimination of Conditional Permanent Resident Status

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I recently met with a young Norwegian professional who wanted to know how to become a Canadian citizen. After I explained some of paths from temporary status (which he had, as a visitor) to permanent resident status to citizenship, he was visibly frustrated and said, “this is too complicated. I just want the form to become Canadian.” I had to admit that he’s right: the system is complicated. (And wouldn’t it be nice to have such a form?) Our former government made things more complicated by adding even more levels to our robust hierarchy of statuses. The most significant additions were the creation of “conditional permanent resident status” in 2012 (for Applicants in a spousal sponsorship application) and, with the changes to our Citizenship Act, “second class” Canadian citizens in 2014. Those changes are now being reversed by the current government. There still isn’t any plan for a form for my new Norwegian friend but we seem to now be on a path to simplify the system.

conditional permanent residentConditional Permanent Resident Status

Within the immigration bar, there were advocates for and against the creation of the “conditional” PR status before the 2012 amendments. We had all had clients like Cindy Green who came to us after their application has been approved and their spouse had ditched them after getting status. We met them, heartbroken, and they asked us to have their spouse removed. There was not a lot we could do. Most did not carry a door on their backs to Parliament but kudos to Ms. Green for shining light on the issue. I wish I could say these cases are rare but they are not. The creation of the conditional status (for 2 years) was a sincere attempt to resolve these issues but, unwittingly, created new issues. TStar reporter, good ol’ Nick Keung (what would we do without him?), wrote a nice piece outlining some of the issues:

The proposed amendments are part of a Liberal election campaign commitment and come on the heels of a new study that found women, racial minorities and those from Muslim-majority countries are disproportionally slapped with so-called “conditional permanent resident visas,” prompting concerns that they are forced to stay in abusive relationships to avoid losing their status.

To be fair, the legislation included protections for spouses in abusive relationships. That was a key concern from the start. But there is a big difference in drafting legislation that attempts to mitigate negative consequences and then the realities of misinformation and the precarious situation of the new immigrants. Unfortunately, many of the individuals negatively affected are unsophisticated and they rely on friends and family to explain the law. “You better put up with me for me for at least 2 years or I will have you deported.” This report documented the real dangers faced by new immigrants with “conditional” status. In the end, the victims of domestic violence (generally women) found themselves in situations of compounded fear that they would be deported if they sought help.

Protect the Applicants … or the Sponsors?

Our current government announced that it will reverse the changes and eliminate conditional permanent resident status. Personally, I agree that the reversal will help to protect many victims of abuse. (I also appreciate the effort to simplify the system and shrink the hierarchy of statuses but I’ll leave this point for another post.) The question becomes: what are the Liberals going to do to help the Permanent Residents and Canadian citizens, sponsors like Cindy Green, who find themselves, heart in hand, abandoned at the airport?

I initially planned to also address the proposed changes to citizenship law and amendments to the TFWP (cover all the groups of statuses) but that is going to have to wait for another week. The Slaw-bot has reminded me that my copy is due.

Published concurrently at slaw.com