Difference between revisions of "Permanent Residence Application Process (18:V)"

{{REVIEWED LSLAP | date= July 10, 2020}}

Immigrant applicants can be broken down into three general categories (these categories are extremely broad): (i.) Economic Class applicants, (ii.) Family Class applicants, and (iii.) humanitarian or refugee applicants. There are several subclasses or subcategories within each of these general headings. All applicants and their dependent family members are subject to medical, criminal, and security checks. These are referred to  as “statutory requirements” in the legislation.  

Foreign nationals who apply under one of the economic classes must prove that they will become financially established in Canada.  This general requirement is reflected through a series of criteria. There are three general sub-classes within the economic class: the skilled worker class, investor class and the self-employed class.  Please note that there are Provincial Nominee Programs in operation throughout Canada, including British Columbia.  Under these programs, the province nominates an immigrant for Federal screening (see s. 87 of the IRP Regulations).  Nomination by a province provides strong evidence of an applicant’s ability to become economically established in Canada as required by IRPA s. 12(2).  A detailed discussion of these programs is beyond the scope of this Manual.

Once the e-APR is submitted, they will be contacted by IRCC with instructions on where to send original documents that may be required (such as original police clearances).

'''NOTE:''' During the COVID19 pandemic, a potential immigrant who received an ITA has up to 90 days to submit an application for permanent resident status. The increase from 60 days to 90 days is temporary. Please see the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/service-delivery/coronavirus/permanent-residence.html IRCC website] for more details.   

The Federal Skilled Worker Program (“FSW”) selects immigrants based on their ability to succeed economically in Canada.  After meeting the threshold criteria set out in s. 75 of the IRP Regulations, foreign nationals who apply under the skilled worker class are assessed on a point system designed to evaluate their ability to become successfully established in Canada.  Applicants are given points on the following criteria: education, language, experience, age, adaptability, and arranged employment.  The point structure is set out in the IRP Regulations in ss. 78 to 83.  For information on how points are allocated, refer to [http://www.cic.gc.ca/english/immigrate/skilled/apply-factors.asp www.cic.gc.ca/english/immigrate/skilled/apply-factors.asp].

For complete information of the Federal Skilled Worker Program, please refer to:

http://www.cic.gc.ca/english/immigrate/skilled/index.asp  

See the IRCC Program Delivery Instructions for the [http://www.cic.gc.ca/english/resources/tools/perm/econ/cec/index-post.asp Canadian Experience Class] and the [http://www.cic.gc.ca/english/immigrate/cec/apply-who.asp IRCC website].

e) Have sufficient fund for the applicant and the applicant’s family to settle in Canada. This requirement is waived if the applicant is working in Canada legally and has a valid job offer from an employer in Canada.  

All provinces, including British Columbia, have their own selection systems and criteria for new immigrants. Applicants who apply under these classes must still comply with the statutory requirements under the federal legislation (see s. 87 of the IRP Regulations). Section 87(3) permits the federal immigration officer to substitute his/her own evaluation of the applicant’s ability to become economically established in Canada for that of the nominating province.  B.C.’s Provincial Nominee Program (“BCPNP”) has its own categories, which can be different from the federal requirements.

 

After you are nominated for permanent residence by the BC PNP, both you and your employer must tell the BC PNP about any employment changes by emailing PNPPostNom@gov.bc.ca. This includes a promotion, lay-off, termination or a potential new job with a new employer. Please note that failing to inform BC PNP of a change in your employment status could lead to the withdrawal of your nomination. It could also lead to questions from IRCC when they process your application. All post-nomination requests, including requests for work permit support letters, change of employers, and re-nominations, must now be emailed to PNPPostNom@gov.bc.ca.

The BCPNP program is currently using an online registration and selection process similar to that of Express Entry (see the NOTE in Section V. A. “Economic Class Applicants”).  Enrolment in the program is free.  Once an applicant has enrolled in the program they wait to be issued an invitation to apply for a provincial nomination.  No time estimate for waiting periods can be provided as they vary and depend on the strength of the application.  Consolidated guides with all the details necessary to assist with a BCPNP application can be found under: http://www.welcombc.ca/Immigrate-to-B-C/B-C-Provincial-Nominee-Program/Documents. For more information about BC’s programs generally, see: http://www.welcomebc.ca/pnp.

Humanitarian and compassionate (“H&C”) applications are generally applied for from within Canadaunder section 25(1) of the IRPA, but they can also be applied for from abroad.  

This is a highly discretionary category, and generally only exceptional circumstances will result in an H&C exception.  The Supreme Court of Canada in [https://www.canlii.org/en/ca/scc/doc/2015/2015scc61/2015scc61.html?autocompleteStr=Kanthasamy%20v%20Canada%20(Citizenship%20and%20Immigration)%202015%20SCC%2061%20&autocompletePos=2 Kanthasamy v Canada (Citizenship and Immigration) 2015 SCC 61] established a broad and comprehensive assessment of all the applicants’ circumstances in a H&C application.  The former test, which considers whether the foreign national would face “undue, undeserved, or disproportionate hardship” if they were forced to return to their country of habitual residence or citizenship, does not create three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). Accordingly, officers should not look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of "unusual and undeserved or disproportionate hardship" in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.

Factors to be looked at include level of establishment of the person in Canada, family ties in Canada, the best interests of any children involved, and what could happen if the request is not granted. There are  other rules applicable to the application, please review the [https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/claim-protection-inside-canada/after-apply-next-steps/refusal-options/humanitarian-compassionate-grounds.html IRCC website] for more information.

d) Brother, sister, niece, nephew, or grandchild who is an orphaned child under 22 and is not a spouse or common-law partner, or

'''NOTE:''' Under “in-Canada” classes, there is '''no appeal''' to the Immigration Appeal Division of a failed sponsorship.  The only redress is to file a new application, file an overseas family class application, or if possible, to file for judicial review of the refusal.

'''NOTE''': IRCC will issue spousal open work permits to certain spouse or common-law partner in Canada class applicants at the initial stage of processing. Please note the spousal open work permit is a pilot program that has been extended to July 31, 2020. We are still waiting for confirmation from IRCC on whether or not the spousal open work permit pilot will be further extended.

In general, refugee claimants have an initial intake interview with an officer, followed by a hearing with a public servant. Due to the increased volume of claims, the RPD has moved to a “first-in, first out” model where claims are heard in the order they are referred. '''If the claimant fails, they will have 15 days to make an appeal to the Refugee Appeal Division (“RAD”). Claimants whose claims are decided by the IRB to be “manifestly unfounded” or have “no credible basis,” designated foreign nationals, and those falling under an exception to the Safe Third Country agreement have no right of appeal to RAD but may be able to file for Judicial Review in the Federal Court.'''     

Please note that the timelines for BOC, Hearings, Document Disclosure and Postponement Requests are different for Inland claimants and Port-of-Entry claimants.

A PRRA is a risk assessment application before removal of a foreign national from Canada.  With some exceptions and some restrictions (see ss. 112(2) and 112(3) of the IRPA), every person who is being removed from Canada can submit a paper application describing why they would suffer persecution or danger in the country of destination if returned to that country.  The risk(s) are assessed under ss. 96 and 97 of the IRPA.  However, very few applications succeed under the PRRA process.