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

{{LSLAP Manual TOC|expanded = immigration}}

Amendments to the Act that came into force June 18th, 2008 give the Minister authority to establish an order of priority for incoming applications (s 87.3), and relieve CIC from the obligation to process all applications to a full decision (s 11). For example, priority processing amongst Family Class applications is given to spouses and dependent children; these are commenced immediately upon receipt. See the Operational Manuals for details.  

== A. Economic Class Applicants ==

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.

EE is a system whereby applicants create an online profile (there is no paper process for creating an EE profile) that assigns points according to “Human Capital Factors” and “Skill Transferability Factors” under a “Comprehensive Ranking System”.  An applicant can obtain a maximum score of 600 points based on these factors in combination, and a possible extra 600 points by obtaining a special EE-related Provincial Nomination (see Provincial Nominee Programs) or an LMIA (see Workers).  These factors and selection criteria were established through Ministerial Instructions, and can be reviewed in detail on the [http://www.cic.gc.ca/english/department/mi/express-entry.asp IRCC website].

To understand what types of documents are required for an EE PR application before and after the applicant has received an ITA, you can [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/express-entry/applications-received-on-after-january-1-2016-completeness-check.html refer] to IRCC’s “Completeness Check” for these types of applications. 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).

=== 1. Federal Skilled Worker Class (Express Entry Required) ===

This class is designed to recognize the value of having experience in Canada, and the positive impact this experience is likely to have on a newcomer’s prospects of success in Canada.  Applicants under this class must be able to demonstrate the following things:

See more IRCC information for the [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/express-entry/eligibility/canadian-experience-class.html Canadian Experience Class].

Where a BCPNP applicant is refused their application for a nomination certificate, the ability to appeal the decision is provided within their BCPNP online profile, and so it is important for the applicant to log into their profile as soon as possible upon receiving a refusal.  They must pay a fee of $200, and provide submissions and evidence as part of the appeal process.  

   

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 [http://www.welcombc.ca/Immigrate-to-B-C/B-C-Provincial-Nominee-Program/Documents. here]. For more information about BC’s programs generally, see [http://www.welcomebc.ca/pnp here].

For more detailed information about this program, please visit the [https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/rural-northern-immigration-pilot.html IRCC website].

=== 8. Self-Employed Persons Class ===

IRCC has a Start-Up Visa Program under the Business Immigration Program, which is geared at attracting experienced business people to Canada who will support the development of a strong and prosperous Canadian economy. Individuals are advised to check the IRCC website for the latest information.

== B. Caregiver Program ==

These new pilot programs will also benefit from:  

Please see Chapter 9: Employment Law for further information on caregivers or the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/permanent-residence/economic-classes/pathways-for-caregivers/child-care-provider-support-pilots/assessing-application-selection-criteria.html IRCC website].

|}

Section 25(1) of the Immigration and Refugee Protection Act (IRPA) allows foreign nationals who are inadmissible or who are ineligible to apply in an immigration class, to apply for permanent residence, or for an exemption from a requirement of the IRPA, based on humanitarian and compassionate (“H&C”) considerations.  

Factors to be looked at include the 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.

Subsection 25(1.3) applies only to H&C applications made in Canada. Personal risks faced by the claimant that are relevant to a Convention refugee determination can no longer be considered in deciding an H&C application. However, “hardship” must still be considered—see IRPA s. 25(1.3).  Thus, discrimination in the foreign national’s country of origin that does not constitute persecution may still properly be considered by the Minister in determining whether the foreign national would experience undue, undeserved or disproportionate hardship.  

*you have children under 18 who would be adversely affected if you were removed from Canada, or

*you have proof that you or one of your dependents suffers from a life-threatening medical condition that cannot be treated in your home country.

Unlike applications made under a Pre-Removal Risk Assessment, a person who applies under H&C considerations '''may be removed from Canada before the decision on the application is made'''.

Foreign nationals can be “sponsored” under the Family Class by a Canadian citizen or permanent resident. Please see the IRP Regulations, Part 7.

The sponsor must meet certain eligibility requirements.  For example, the sponsor must be at least 18 years old, must reside primarily in Canada, must not be bankrupt or receiving provincial welfare benefits, must not be in default of a previous immigration undertaking, etc. (see ss. 130 - 137 of the IRP Regulations for the requirements).  

In some circumstances, the sponsor must prove he or she earns a specific amount of money, depending on his or her family size and the city he or she is living in. The definition of “minimum necessary income” can be found in s.2 of the IRP Regulations. This is also known as the “low-income cut-off” figure (“LICO”). Generally speaking, the LICO '''does not apply''' to sponsors who are just sponsoring their spouse or children (IRP Regulations s. 133(4)).  

The family class is the group of family members that can be sponsored to immigrate to Canada.  Family members who are not included in IRP Regulation s. 117(1) cannot be sponsored.  Below is a list of members of the family class:

a) Spouse, common-law partner or conjugal partner,

When the sponsor is also applying for permanent residency as a Principal Applicant, the sponsor’s spouse, common-law partner, or conjugal partner, and the sponsor’s dependent children are included on the sponsor’s permanent residency application as accompanying or non-accompanying family members.  However, a Principal Applicant may be rendered inadmissible if the family members included on his or her application are inadmissible.

To sponsor a family class member, a potential sponsor must fill out an application to sponsor, and the relative being sponsored must fill out an application for permanent residence.  The sponsor must also provide a signed undertaking with the federal government that he or she will support the prospective immigrant and accompanying dependents, if necessary, for three years if the applicant is a spouse or conjugal/common-law partner, or ten years for most other categories of applicants (see IRP Regulations, Part 7, Division 3).  If an application for sponsorship under the Family Class is refused, the '''sponsor''' may (in most cases) appeal the refusal to the Immigration Appeal Division.  

== Out of status spouses in Canada – Public Policy ==

A Canadian citizen or permanent resident can sponsor a spouse regardless of the spouse’s status in Canada under a special public policy directive relating to out-of-status applicants. After the sponsored spouse (applicant) receives first stage approval of their application (that is, approval in principle), they are entitled to an Open Work Permit under IRP Regulations s. 207.  This means the applicant is entitled to work in Canada in any capacity; in other words, unlike most temporary foreign workers, this work permit is not tied to a particular form of employment with a particular employer.

It is important to understand that foreign nationals without status can apply under this class only if the foreign national:

Consequently, foreign nationals who are inadmissible to Canada, entered Canada without permission after having been deported, and foreign nationals who have misrepresented themselves are not permitted to apply under this class. Always look to the most recent version of this policy.  

== F. Convention Refugees (the Process) ==

The definition of a Convention refugee is found at s 96 of the IRPA. Generally, the person must:  

If a person has more than one place of citizenship, they must have exhausted options in both of their countries of citizenship (see [https://www.canlii.org/en/ca/scc/doc/1993/1993canlii105/1993canlii105.html?autocompleteStr=Canada%20v%20Ward%20%5B1993%5D%202%20SCR%20689&autocompletePos=2 Canada v Ward [1993<nowiki>]</nowiki> 2 SCR 689]).  This is not an exhaustive list; refer directly to the IRPA, ss. 95 to 111.

The IRB Chairperson has issued special interpretation guidelines for determining Convention refugee claims of women refugees.  Individuals should review these “Gender Guidelines” when assisting women refugee claimants.  The Gender Guidelines can be found on the IRB’s website, www.irb-cisr.gc.ca, under the heading “Legal and Policy References.”   

'''Significant changes to the refugee determination process have been implemented over the last several years by the [https://www.canlii.org/en/ca/laws/astat/sc-2010-c-8/latest/sc-2010-c-8.html?searchUrlHash=AAAAAQAbQmFsYW5jZWQgUmVmdWdlZSBSZWZvcm0gQWN0AAAAAAE&resultIndex=1 Balanced Refugee Reform Act], SC 2010, c 8 (BRRA), and, the [https://www.canlii.org/en/ca/laws/astat/sc-2012-c-17/latest/sc-2012-c-17.html?searchUrlHash=AAAAAQAsUHJvdGVjdGluZyBDYW5hZGHigJlzIEltbWlncmF0aW9uIFN5c3RlbSBBY3QAAAAAAQ&resultIndex=1 Protecting Canada’s Immigration System Act, SC 2012, c 17].'''

Key Changes:  

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.'''     

Any person midway through the application process should consult the [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/canada.html IRCC website] for the latest information.

A foreign national generally requests Convention refugee protection at the Port-of-Entry upon arrival, i.e. at the airport, land border or sea border.  However, if a foreign national wishes to make a Convention refugee claim after being admitted into Canada, the person should go to the Immigration, Refugees and Citizenship Office at 1148 Hornby Street, Vancouver, British Columbia and enter a claim for protection.  The first step is the eligibility interview.

At the eligibility interview, the interviewing immigration officer will obtain the detailed reasons why the foreign national fears persecution.  A foreign national should be prepared to '''accurately outline the details''' of his or her account of events leading to the claim for protection.

Important changes to the eligibility rules for refugee claimants were introduced in 2019. Anyone who has made a refugee claim previously in a country with which Canada has an information-sharing agreement (US, UK, Australia, and New Zealand) are now '''ineligible''' to make a refugee claim in Canada. Instead, these individuals will receive only a Pre-Removal Risk Assessment (“PRRA”). We recommend that claimants in this situation consult with a lawyer as soon as possible to understand their options.   

   

Once a foreign national is determined to be eligible to submit a Convention refugee claim, the foreign national will be given a Conditional Departure Order.  This is a removal order that only comes into effect if the person loses the claim for protection.  The foreign national is now a Convention refugee claimant.   

Claimants will require help in preparing their BOC. In the BOC, a claimant must outline the precise reason(s) for their well-founded fear of persecution. This includes a narrative outlining the dates, incidents of persecution, why they are afraid, etc. The '''BOC should include facts that support the claimant’s fear, and that address the requirements set out in the IRPA'''.  For example, the BOC should address why the claimant has no internal flight alternative, how the state is involved or complicit in the persecution, etc.  This account of events will form the basis of the request for protection at the hearing.

The Convention refugee claimant will be scheduled for an oral hearing to assess their claim.  This hearing is not open to the public. The Presiding Member will question the claimant regarding the BOC.  The Minister may also intervene in the hearing and a Hearings Officer may question the claimant if they allege the claimant should be excluded from refugee protection under IRPA s. 98 or if they have concerns about the claimant’s credibility.

Claimants may represent themselves at the hearing or be represented by counsel. Representation by counsel is always preferable. Interpreters are provided if required. Claimants may request that a family member or friend be present at the hearing for emotional support.   

The Refugee Appeal Division (“RAD”) considers appeals against decisions of the Refugee Protection Division (“RPD”) to allow or reject claims for refugee protection.  In most cases there will be no hearing, as the RAD will base its decision on the documents provided by the parties involved and the RPD record.  

For appeals of '''a decision of the RPD''' to the RAD, the following information may be helpful:  

'''For a detailed compilation of necessary steps and information for a claimant’s appeal, please refer to the [https://irb.gc.ca/en/filing-refugee-appeal/Pages/refugee1.aspx IRB website].'''   

A PRRA is a risk assessment application before the 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.  

For further details regarding the 12-month bar and exceptions, please refer to [https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals/refugee-protection/removal-risk-assessment/applications-intake.html IRCC's manual].

Once a claimant has received a removal order and has been given '''notification''', he or she has 15 days to apply for a PRRA and another 15 days to make submissions and include documentary evidence.  If the person is a failed Convention refugee claimant, the evidence supporting the PRRA must be new or must have not reasonably been available on the date of the hearing; in other words, only “new evidence” is considered.  

A person who loses the PRRA will be removed.  The only redress to a PRRA refusal is to apply for leave and appeal to the Federal Court and request a deferral of removal from the CBSA until a decision is made by the Federal Court. The deadline to apply for leave to the Federal Court is 15 days. If CBSA refuses to defer removal (which is often the case), the client may need to apply for an urgent stay of removal in Federal Court. In such cases, the claimant should contact a lawyer immediately.  

If the PRRA is granted, the person will receive the same protection as a Convention refugee.  The person will be considered a “protected person” and can apply for permanent resident status from within Canada.

{{LSLAP Manual Navbox|type=chapters15-22}}