Dear Readers:

I wish to take this opportunity to thank all the readers of Canadian Immigration SOLUTIONS Newsletter for the responses given and support for the views provided. I also continue to receive compliments for the articles. Readers have found the articles to be both informative and thought provoking. It is also interesting to note the number of people that have identified with the issues raised.

Immigration is a topic that impacts on everyone in Canada, not only new immigrants - but everyone! It is important to promote fair immigration policies and programs to benefit our country economically and culturally. Immigration has been the cornerstone of Canadian growth since we became a country and it is just as important today as it ever was. Immigration touches the lives of not only immigrants but also everyone in Canada!

Your responses and encouragement has prompted me to continue publication of this Newsletter with a larger distribution than ever before. I trust that your responses and feedback will continue with future publications.

My goal in publishing this Newsletter will continue to be to keep our readers informed of ongoing Immigration related issues, changes to Immigration Programs and commentaries designed to advocate for and lobby the Department of Immigration for fair Immigration Programs and Policies. There are many Immigration programs and Policies that need attention.

Your continued and ongoing support is appreciated. Your comments and questions are always welcome. Please feel free to fax them at (416) 663-4931, submit via on-line contact form of our website or simply E-mail them at sgomby@immsol.com.

Sincerely,


Sol Gombinsky
SOLUTIONS Immigration Consulting

In previous articles I have been very critical of the Minister of Immigration, Mr. Denis Coderre, respecting his stubborn decision to support senior bureaucrats on two points respecting SKILLED WORKER category (previously referred to as INDEPENDENT APPLICANTS). These included:

1. It was impossible to achieve the minimum required 75 units of assessment by anyone abroad unless they already had close ties to Canada. For example it would be impossible for a single person to be approved no matter what education level, age, skills or work experience, knowledge of English or French unless they had a job arranged that was confirmed by Human Resources, a relative in Canada, had gone to school in Canada for at least 2 years or worked in Canada under a work permit for at least one year.

2. The point system would be applied retroactively to applicants who had applied under the previous system that was in place. In other words applicants from all over the world who applied and qualified under the previous system, waited for up to 4 years (or more in some countries), put their life on hold, only to be told that a new point system would now be applied and they no longer qualified.

I am pleased to inform the readers that he Minister finally backed down. He did so not because he changed his mind or the senior bureaucrats advised him that it was the appropriate thing to do, but because he had no choice.

On the first point, the point system had to be amended or Canada would never meet the target for Parliament sets for new immigrants. The shortfall would seriously jeopardize economic growth as Canada relies heavily on immigrants. Serious shortfalls would occur for businesses and we would lose skilled immigrants to other countries such as United States and Australia. The political pressure by business, labour and the communities was strong and we are soon going into an election year!

On the second point, thousands of persons affected by the decision to apply the new point system retroactively were suing the Canadian government for many millions of dollars and the Federal court involving one group of applicants ordered the Department to assess the applicants and continue processing them under the previous system. Other Federal Court decisions and lawsuits were pending. Again the political pressure was incredible and came from the Immigration lawyers, business, labour, the ethnic communities, other interest groups as well as the Immigration Counsel Associations. Also the reputation of the Canadian government was being put into jeopardy.

Who ever heard of the Government of any country in the "free world" unilaterally changing the law and applying it retroactively? Is this not a breach of contract?

The president and executive of the Association praised the Minister for implementing the changes and backing down from his previous position on both of the above points. I do not praise him because there was no such decision. He had to change his tune! The courts said so, the interest groups including labour and business said so, the cost of defending his position, which could not be properly defended, kept mounting, and an election year is coming up.

In any event I am pleased that the 67 units required for being approved is achievable by many more applicants and the unfair retroactivity was erased thus allowing many deserving applicants who put their life on hold for so long from all over the globe to be approved and immigrate to Canada.

In my previous Newsletter I was critical of the Minister for his unreasonable position on these two points. I am pleased that our position has become reality!

In June 2002 the Immigration Department implemented the new Immigration Legislation. One of the "HIGHLIGHTS" of the new legislation is the provision to allow for persons to apply for permanent resident status in Canada as long as they have legal status in Canada, if they are married to or if they have a common law relationship for at least one year with a Canadian Citizen or permanent resident of Canada.

On the surface, this provision appears to be very generous and "humanitarian". However, as is always the case, the law is secondary to the attitudes of the people who interpret the law and the policy of the immigration Department.

For instance, how can such a seemingly generous system result in the deportation of a husband and father of three to Nigeria with no criminal record? And is it humane or generous for a man who was always in compliance with the Immigration authorities to be put in handcuffs when he reported to immigration as directed, put in detention to be deported within days in front of his crying Canadian wife and his 3 screaming young Canadian born children? A hardworking family where the wife worked days while her husband worked evenings so they could make ends meet and take care of their children without resorting to social assistance were torn apart, and this man's only crime was that he did not have legal status in Canada.

In the words of the immigration official who put the handcuffs on the applicant: "they should have known they were taking a risk when they had the children in the first place";. Tell that to the children who will be fatherless for probably 1 to 2 years or longer. When asked for the reason for detention, he replied: "he is a risk not to appear for removal because he is very motivated to remain in Canada". When asked, if he really wanted to remain, he obviously answered ";yes".

Immigration officials decided it was okay to allow for a loving and self-supporting family to be separated, and in turn created a single parent family who will most likely have to turn to Social Services to help support herself and her three children. Incidentally, if the mother must rely on social assistance, she may be ineligible to sponsor her husband back to Canada!

An immigration officer made the decision that separation of this man from his spouse and young children would not cause any significant hardship. The Immigration Act and the decisions by the Supreme Court of Canada direct officers to make decisions in the "best interest of the child". The officer, in order to try to technically comply, states in his decision that he has considered the "best interests of the child" but stated that due to their "young age" they would not be significantly affected by separation from their father, and therefore there are insufficient "humanitarian and compassionate" grounds to allow the applicant to remain in Canada.

The officer made this decision on paper - without even seeing the family. I would have liked to see if he would have the courage to make this decision looking this family including these children in their eyes!

Immigration officers, especially those that are "immigration hawks" have the comfort of knowing that their decisions cannot be interfered with by their superiors and in fact have the support of new manual "guidelines" that now state for the first time that marriage to a Canadian - even one that is genuine - is in itself not sufficient to warrant the granting of special relief for humanitarian and compassionate consideration. In other words separation of spouses - notwithstanding that family reunification is an objective of the Immigration Act - is not a major factor.

Under the previous Act there was no provision for "family members" applying from within Canada but there was always the provision to apply under "Humanitarian and Compassionate" grounds. There would always be a test when couples were married in Canada whether the marriage appeared to be genuine. Once the officer was satisfied that the marriage was genuine and there were no other negative reasons to refuse the application the applicant was given the opportunity to be processed from within Canada. In many cases the applicant did not have legal status in Canada but this was overridden by the circumstances including a genuine and bona fide marriage and relationship with a Canadian citizen or Permanent resident.

In addition to the changes of the immigration legislation and policy, the increasing backlog of cases from within Canada - including those who are sponsored by their spouse or common law partner - is so great and results in applications not being processed for a long time Many applicants in turn are forced to apply from overseas because of the shorter processing times, but this process could cause the unnecessary separation of spouses or partners, and extra airplane expenses that not everyone can easily afford.

In conclusion, the Immigration Department has given Canadians and potential immigrants the impression that the new Immigration Act is more lenient in allowing spouses and common law partners to apply from within Canada - but the implementation of the law, the policy and attitude of the "immigration hawks" has moved the Department backwards in meeting the objective of family reunification. This point is clearly reflected looking in the eyes of a hard working sad mother of three young children left for possibly years - or forever - without her husband; the crying faces of 3 young children who will be fatherless because "they are too young to be affected by the separation from their father"; and the applicant who was forced o return to Nigeria- a country that he fears, for political and other reasons separated from his wife and 3 children.Perhaps the victims of this new "progressive" policy should include Canadian Citizens. We Canadians should also share the guilt for allowing this to happen. We will be responsible for paying social benefits for the family and for any psychological or other harm done as a result of three children seeing their loving father taken away from them in handcuffs and not seeing him for a long time - if ever at all.

In a previous Newsletter I wrote about the need to regularize the Immigration Consultant industry to protect immigration clients from: 1. Unscrupulous (dishonest) immigration counsel that takes advantage of and preys on desperate people seeking immigration services; and 2. Incompetent immigration counsel who are untrained and lack adequate knowledge and experience on Canadian immigration law, programs and procedures. While I have not often supported the Minister on a number of other issues, I do support him on the action he has initiated to "control the industry". A committee was formed and one of the recommendations made includes a definition of who can represent immigration clients: Immigration Counsel refers to a barrister or solicitor, or to a licensed immigration consultant. In other words, in order to represent an immigration client in the future, you must be either a lawyer or a licensed immigration consultant. Canadian embassies, consulates and high commissions will deal only with those individuals. The same will hold true of Immigration Centres and the Immigration and Refugee Board. The COMMITTEE also recommended that an appointed board develop and implement recommendations including the following: 1. A CODE OF CONDUCT 2. A COMPLAINT AND DISCIPLINE MECHANISM 3. A COMPENSATION FUND 4. LIABILITY INSURANCE 5. A NATIONAL EDUCATION PROGRAM FOR THE ONGOING EDUCATIONAL PROCESS NECESSARY TO THIS MODEL I will not go into all of the details of the recommendations other than to say that the Immigration Department is finally making an attempt to protect individuals who seek professional immigration assistance for a fee. I am convinced that there is a strong need for immigration specialists to assist immigration clients. Instructions and the implementation of processes are not "user friendly" and many individuals who are not aware of the requirements; procedures and their rights are subjected to unfair treatment by the Department. It is often more expensive in the longer run to obtain competent professional assistance. It is difficult to obtain advice and information from Immigration Department officials. Oftentimes the wrong advice and misinformation given by Immigration Department officials can be costly. On the other hand, it is important if one receives paid assistance that such assistance be provided by a specialist who is competent and honest. I look forward to the implementation of a system to control the industry of immigration consultants. The individuals who are dishonest or incompetent spoil the reputation of those that are professionals and above board.

The New Immigration legislation provides for the sponsorship of spouses, common law partners, conjugal partners including same sex partners. Unfortunately the new legislation eliminated the sponsorship of fiancés and fiancées.

Under the previous legislation fiancés and fiancées could come to Canada on a conditional visa requiring them to be married to their sponsor within a specific time period. If they did not, the new immigrant could be asked to leave Canada or be removed. This type of sponsorship served the purpose of everyone concerned, including the Immigration Department.

First of all, I congratulate the Department for including common-law, conjugal and same sex partners who have been together for at least one year. The elimination of sponsoring fiancés and fiancées, however, represents a serious problem for people all over the world, especially from certain cultural and religious backgrounds that do not have conjugal relationships without first being married.

The opportunity to sponsor future wives and husbands becomes very difficult unless the Canadian sponsor travels abroad to be married and then returns to Canada. This becomes especially complicated in arranged marriage cases. The cost of traveling abroad to be married is expensive, especially when the sponsor will be paying for the applicant abroad to come to Canada and is planning a large cultural wedding here.

Another issue is that the visa officer oftentimes delays the processing of an application where there is a legal but not a large traditional wedding by arranging an interview of the applicant as the visa officer is suspicious that it is a marriage of convenience. At times this can result in refusals based on the fact that a traditional marriage took place after the sponsor only spent a couple of weeks abroad. The interview questions to the applicant about details about their spouse and their life in Canada can result in refusals and appeals, as the applicant's knowledge about the spouse in Canada is often limited as it is an arranged marriage and they are so far apart.

I am surprised that Canada's ethnic communities and religious groups have not protested more vehemently about the elimination of sponsoring fiancées or fiancés unless the couple has a relationship including living together that dates back more than one year.

I would be very interested in you views regarding the elimination of the fiancé and fiancée category.

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