Some very basic facts: the Low Income Cut Off goes up every year.  It is mandatory for a sponsor to meet the LICO when sponsoring parents and their dependent children.  Meeting the LICO is  a badge of confidence you can show to Canada’s immigration department, promising that the relatives who you sponsor will not be a burden on Canada’s social services for three or ten years from the date the sponsored relatives obtain their Canadian immigration visas.

The LICO can impact marriage sponsorships.  Normally, the LICO is not applicable when sponsoring a spouse with underage dependent children.  However, a visa officer overseas has the discretion to use the LICO as a guideline.  This is done primarily where a sponsor of a spouse presents very, very little income (let’s say, for example, only $18,000.00 per year), and the sponsored spouse is bringing two children.  Given the fact that the 2010 LICO for four people is $39,455 (as per the Current Canada Immigration website for 2010), a visa officer can have a very legitimate concern that the sponsor will not be able to keep his spouse and children off of Canada’s social assistance for three or ten years).  In such a circumstance, the visa officer can have reference to the LICO and determine that an application to sponsor a spouse and children should be refused on financial grounds.

However, a sponsor of a spouse who is refused in such a situation can have recourse to the Immigration Appeal Division of the Immigration and Refugee Board, where a judge (or more precisely, a Member), can review the financial situation and grant approve the sponsorship despite the lack of income of the sponsor.

The Member at the IAD would have regard to humanitarian and compassionate factors and other circumstances, such as the employability of the person being sponsored, the age of any dependent children being sponsored, the proven financial worth of the person being sponsored, and many other factors.

I have come across a situation where a sponsor of a parent has had to pay the province of Ontario over CAD$100,000.00 due to a sponsored parent taking social assistance for many years.  The sponsorship agreement is a document that both the sponsor and the sponsored parent or spouse signs and it sets out in detail the obligations of the sponsor. This is likely a rare occurrence, as the slow processing times for parents that characterize Canada’s immigration system appears to ensure that parents are unable to get their permanent resident visas until they are close to passing away, or are too ill to pass the immigration medical.

Canada’s immigration lawyers are subject to certain unique characteristics depending on where they practice.  Vancouver immigration lawyers appear to have the benefit of a more progressive media outlet in the form of the Vancouver Sun.  An editorial, published on February 9, 2010, entitled, “Time to exorcise ghost immigration consultants”, was significant.

It was one of the few the mainstream news outlet that acknowledged the term “ghost consultant” – immigration consultants who provide the services of a Canadian immigration consultant, but without the license required by the Canadian Society of Immigration Consultants.  Vancouver lawyers in the practice of Canadian immigration law will benefit from this article due to the increased awareness that will no doubt accrue from this pithy editorial.

It mentions the ‘exploitation’ that characterizes the mode of operation of the ghost consultants.  It has even characterized the presence of ghost consultants as a national security issue.  Toronto immigration lawyers were not as lucky in this regard.  There was an expose a couple of years ago in the Toronto Star that used undercover reporters disguised as clients who were  counselled to make false refugee claims (at the link:http://www.thestar.com/article/289751).  I recently blogged about the issue of a ghost immigration consultant who was apparently filing fraudulent citizenship cases in Mississauga (covered in the Globe and Mail February 1 and 2 2010).  However Toronto lawyers in the practice of Canadian immigration law operate in a somewhat more saturated market than Vancouver immigration lawyers.  There are more Canadian immigration lawyers in Toronto, as well as more immigration consultants, both licenced and ghost, than there are immigration lawyers in Vancouver.  Indeed, the Canadian Society of Immigration Consultants is based in downtown Toronto.

It is laudable that the Canadian Minister of Citizenship and Immigration intends to make legislative reforms in this regard.  It is also laudable that CSIC intends to advertise about the risks associated with hiring ghost consultants (the new ad consisting of a shark eating some other sea creature) is graphic and vivid:

The issue of ghost consultants affects the reputation of licensed Canadian immigration consultants, and Canada’s immigration lawyers, and adds cannon fodder for anti-immigration cranks.  However, the problem of ghost consultants cannot be legislated away.  Similarly, no educational campaign will reduce the presence of ghost consultants.  Ghost consultants fill a market niche that cannot be filled by Canada’s immigration lawyers and Canadian immigration consultants: clients who actually intend to break Canada’s immigration laws. Every experienced Toronto or Vancouver or other Canadian immigration lawyer has come across such a client.  The client either does not meet the criteria imposed by Canada’s immigration laws or feels too inconvenienced by the strictures of Canada’s immigration laws.  I consulted with such a person once.  This person was convinced that simply buying real estate in Canada entitled him to Canadian immigration status.  I told him that at best, this may be part of a broader strategy for his immigration to Canada.  When I told him that this fact itself does not confer any special status for obtaining Canadian immigration, he got up, threw his consultation fee on my boardroom table and left my office.  He wanted to give me the impression that he was wasting his time consulting with me on Canadian immigration matters.  However, you cannot legislate morality.  No matter how much harsher the penalty for violating Canada’s immigration laws, there will always be willing law breakers.  The ghost consultants will be there to serve this market niche despite the penalties.

The February 2 2010 edition of the Globe and Mail contained an article stating that Immigration Minister Jason Kenney will ‘crack down’ on unscrupulous immigration consultants after it was revealed that the RCMP are investigating as many as 300 citizenship applicants who claimed to live at the same address.

What does this mean in reality?  First, the processing of citizenship applications is clearly within the mandate of Minister Jason Kenney’s department.  It is an embarrassment to his bureaucracy that 300 citizenship applications are apparently completely fraudulent.  This cheapens the value of Canadian citizenship.  To overcome this bureaucratic gaffe, tough talk must be employed, hence the phrase “crackdown”.

The crackdown consists of proposed amendments to the regulations, “that will include much more severe penalties for furnishing people with advice to commit fraud or [submit] fraudulent documents.”    The Minister did not specify what the proposed regulations would consist of.  However, it is worth mentioning that as they stand, the current law imposes stiff penalties for counseling somebody to lie on an immigration application:

126. Every person who knowingly counsels, induces, aids or abets or attempts to counsel, induce, aid or abet any person to directly or indirectly misrepresent or withhold material facts relating to a relevant matter that induces or could induce an error in the administration of this Act is guilty of an offence.

128. A person who contravenes a provision of section 126…is guilty of an offence and liable

(a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than five years, or to both; or

(b) on summary conviction, to a fine of not more than $50,000 or to imprisonment for a term of not more than two years, or to both.

Given the relatively stiff penalties already present, the problem of fraudulent citizenship applications doesn’t appear to be one that can be allayed through penalties.

Mr. Kenney acknowledged that the problem is widespread having attended citizenship interviews at the Mississauga Citizenship office.  He told the Globe and Mail, “I myself went and sat in on some interviews that our officials had with citizenship applicants recently in Mississauga, and I saw cases where an applicant was living at an address where 25 other people were supposedly living – 25 other applicants for citizenship were registered.”

A contact I have spoken to at the Canada Border Services Agency tell me that the Citizenship branch of Canada’s Citizenship and Immigration department is a “Mickey Mouse” outfit.  This might be true, given the largely boilerplate decisions that are issued by citizenship judges.  Some citizenship judges may be sensitized to this perception, given the propensity of some citizenship judges to interrogate legitimate citizenship applicants over the slightest aberration in their citizenship application.  My immigration law practice has benefited from clients with otherwise solid citizenship applications who who hired me after going through a harsh and threatening Canadian citizenship interview.  My assistance to these clients invariably consists of simply citing the law and asking the citizenship judge to apply it.

The Globe and Mail was also told by the Minister of Immigration, “We are developing some techniques to track that kind of obvious evidence of fraud.”  This is quite likely true.  It is not a difficult exercise to acquire some software that engages in data mining, looking for common traits in more than one citizenship application, such as an implausibly large amount of people residing at the same address.

Keeping with the fact that the Globe and Mail is a newspaper of record, it mentioned in the second paragraph, “The case revolves around an address located in the same building as Palestine House, a Mississauga centre that offers language classes and settlement services to new immigrants and also acts as an advocate for Palestinian and Arab causes,” all of which is accurate.  It was wise to position this connection to Palestine House not in the headline, or the first paragraph, but in a position further down.  This would allay concerns that the Globe and Mail is pandering to the anti-immigrant sentiment that is in every developed country to some degree or other.  That task would be left to other newspapers with more expansive sports sections and prolific advertising of electronics.  The Globe and Mail article also mentioned that it was an immigration consultant that rented space from Palestine House in 2007 before disappearing, who is of interest to the RCMP.  This latter fact also properly distances the fraudulent immigration consultant from his landlords at Palestine House.

The Minister said another part of his strategy will involve reaching beyond Canadian borders to influence foreign governments in major immigration source countries. He said something must be done to tackle the “Wild West environment for immigration consultants” in those jurisdictions, where consultants promote ways to beat Canada’s laws and obtain citizenship without really living in the country. However, he did admit that the likelihood of cooperation from foreign governments would be highly unlikely when he added, “India, for example, has no legislation on this at all. Nothing,” and, “It may be a bit Pollyannaish of me to think that it will actually have an effect, but I think we need to push this as a diplomatic priority in these countries.”

What Canada’s immigration department won’t admit is that the more immigration applications they receive, the better.  With some exceptions, it does not matter to the immigration department that an application for Canadian immigration or Canadian citizenship is represented by someone who is competent.  The ideal is to receive as many applications as possible which would justify funding to Canada’s immigration department.  Applications for Canadian visas which are assisted by ‘ghost consultants’ tend to be easier to refuse than applications completed with the assistance of a Canadian immigration lawyer (which are characterized by the citation of law and adducing of evidence).

The often long road to acquiring a Canadian permanent resident visa is often squandered because of the failure to maintain one’s permanent resident status.  The permanent resident who falls into this difficulty is often one who lands in Canada and fails to find employment in Canada and is forced to find work outside of Canada.  There are numerous other scenarios such as a permanent resident who is subject to some legal (or other) obligation that forces them to remain outside of Canada.

Keeping Permanent Resident Status

A permanent resident must, within a five year period spend at least a total of at least 730 days in Canada within that five-year period. Otherwise, one can be outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent, or be employed outside Canada on a full-time basis by a Canadian business or the Canadian government, or be the child or spouse of a person who is employed on a full-time basis by a Canadian business or a Canadian governmental entity.

What Happens if the Obligation is Not Met?

If a permanent resident does not fall into one of the circumstances described above, then they will be issued a deportation order. The deportation order usually is issued by a visa office outside of Canada.  This often happens when a permanent resident fails to pick up their permanent resident card from an immigration office in Canada (which they must do personally).  Their old permanent resident card expires and they are unable to board a plane back to Canada.  They apply at a visa office for a travel document to return to Canada, and during the course of that travel document application, it is revealed by the permanent resident that they have been outside of Canada for more than 730 days.

Why Does the Canadian Government Want Permanent Residents to Maintain This Obligation?

The concern of the government is likely related to the collection of tax revenues by permanent residents who remain outside of Canada at a job and do not declare their worldwide income to the Canadian government.  Indeed, at appeals of persons who failed to meet this obligation (at the IRB), I have seen the government lawyer rant to the Judge about how the infrastructure of Canada (schools, hospitals, etc) was financed by the Canadians who worked in Canada their whole lives.  This is true. Indeed, my parents struggled in Canada toiling at blue collar jobs for most of their working lives.  But this fails to acknowledge that much of Canada’s infrastructure was built at a time when immigration to Canada was based on race rather than not merit.  In other words, had Canada’s immigration system been more open in the ‘40s ‘50s, and early ‘60s, you would have had people from more diverse backgrounds who could proclaim their contribution to Canada during those years.

Similarly, the perception of Canada as a great country (owing to a United Nations Survey more than a decade ago) has given the Canadian immigration department (that designed the point system) the impression that Canada will automatically attract the world’s best and brightest.  I disagree with this spurious pretention.

The reality is that there is a form of gridlock between the recognition of professional credentials (which is a Provincial matter), and the Federal bureaucrats who decide which immigrants can enter Canada.  The result is that for example, Federal bureaucrats allow physicians to obtain permanent resident status, but their credentials are for the most part not recognized by the Provincial authorities.

If I was a recent skilled immigrant to Canada I would not like to choose between toiling at a semi-skilled job in Canada unable to provide for my family, or chancing the loss of permanent resident status by returning to my country of origin and working in the field which corresponds with my training.

I would like to see some additional flexibility in the residency obligation to recognize permanent residents who sincerely tried to find work in Canada but could not. If they paid their taxes on their income made outside of Canada, then Canada would not lose.  This is particularly the case where the main bread winner in a family returns to his or her country of origin to work and leaves the rest of the family in Canada.  Of necessity, the family will spend the foreign-earned income of the breadwinner in Canada, which is a boon to the Canadian economy. If the presumption of Canada as hospitable to immigrants is to be made congruent with the current Canadian immigration law, the residency obligation should be made to be more flexible.