Enforcement

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Enforcement

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Port-of-Entry Examination

When you arrive in Canada, you will pass through a “port-of-entry” (POE), which may be at a land border or an airport (and even by sea). Here you will be examined by a Border Service Officer, who will verify your identity and confirm other details to ensure you meet the requirements to enter Canada. Depending on your status and the purpose of your visit, you may be sent to “secondary inspection”. This can happen to verify information or if your case requires the issuance of documents, for example, if you are entering Canada to obtain permanent residence, a study permit, or work permit. In cases where you have received approval of your application from a visa office, obtaining your documents at the POE should be a mere formality. In other cases, you may be applying for a study or work permit at the POE, if permitted by the regulations.  You may be asked questions about whether there have been any changes in circumstances since your application (for example, a change in marital status), and about your intentions in Canada. Your answers should not contradict what was stated on your application or indicate an intent to violate regulations. Applicants sometimes do this inadvertently, either because they are not familiar with immigration laws, or because they find themselves in a stressful situation and become overwhelmed. Note that even visitors who are visiting on an eTA or temporary resident visa may be sent to secondary inspection and denied entry to Canada if the officer suspects you will not leave by the end of your authorized stay or otherwise violate Canada’s immigration laws. You should be prepared to answer questions properly and be aware of your obligations while in Canada. 

You should also note that Border Services Officers have fairly wide powers and you have less legal rights to privacy at a POE than inside Canada.  Your laptop, cell phone and other devices can be seized and inspected, and you can be requested to provide a password to your device(s).  If you are concerned about your rights and obligations when entering Canada, you should consult with us before you travel.

 

Denial of Entry

Not everyone has a right to enter Canada.  Citizens and permanent residents who have complied with the law have a right to enter, but temporary residents must satisfy a Border Services Officer (BSO) that they have a valid purpose in Canada and will comply with the regulations.  For example, if a BSO suspects you will work in Canada without a permit, or stay in Canada beyond the validity of your status, s/he can deny entry, and you will be required to leave Canada immediately.  If you have been denied entry and wish to attempt to re-enter Canada, it is essential to obtain proper legal advice and guidance.  

 

Without Legal Status in Canada

There are thousands of people in Canada without legal status who have stayed beyond the validity of their visa, stayed after a refused refugee claim, or entered Canada illegally. If you believe that you have a compelling reason to stay in Canada despite your lack of status, contact us so that we can advise you regarding your status and your chances of regularizing it.

 

Overstay – Out of Status

If you are a foreign national who is in Canada on a work permit, study permit, or as a visitor, and you remain beyond the validity of your permit (or for visitors usually 6 months, or as stated on your passport or Visitor Record) you are considered to be out of status. A person without status in Canada is at risk of removal. To avoid this, you can either leave Canada or, if your status expired in the last 90 days, apply for restoration of status. It is recommended that you always comply with the conditions of your stay; the fact that you overstayed in Canada will appear on your immigration file and may negatively affect future applications. If this happens to you, you should consult us to assess options.

Obviously, to avoid overstaying, you should apply for an extension of your status in Canada before the expiry of your current status.  In some situations, you may also request to change your status, for example switching from student to visitor. During the processing of your extension application, you will remain in status even though your official status has expired.  This is called “implied status” and it is also subject to certain conditions.  If your application for an extension is ultimately refused, you will be considered out of status as of the date of the refusal letter. 

Some people end up staying in Canada without status for a very long time for a variety of reasons.  People in this situation find it extremely stressful and there is a constant fear of deportation; at the same time, they feel stuck and are too afraid to face the issue. Immigration laws of Canada can be forgiving of these situations in certain circumstances, and it is essential to obtain legal advice. If you are in this situation, we can advise you on whether an application for permanent residence on Humanitarian and Compassionate grounds could be the solution for you. 

 

Removal from Canada

A removal order may be issued to a permanent resident or foreign national who is in Canada and is found to be inadmissible. This could be the result of a refused application, a criminal offence, overstaying in Canada, or other breaches. Often removal orders are not immediately enforceable, for example when there is a right of appeal, and if an appeal is made, until its final determination. It is also possible that the removal order is “stayed”, meaning it is temporary delayed and unenforceable. This may happen if there are judicial proceedings involving the applicant, if there is a refugee claim or Pre-Removal Risk Assessment (where the applicant seeks protection), if there are sufficient humanitarian and compassionate grounds, or for other statutory or regulatory bases. Delays may also occur if the necessary travel documents cannot be obtained, or if a person’s identity cannot be established. 

There are three types of removal order:

With a departure order, you must register your departure or else it will turn into a deportation order after 30 days. If you wish to return to Canada after removal by a deportation order, or removal by an exclusion order before the passage of one year, you must apply for an Authorization to Return (ARC). If the government of Canada paid for your removal, you will also be expected to repay that amount. 

If you are subject to a removal order, we encourage you to contact us immediately to explore all your immediate options and formulate a strategy for the future. 

 

Detention Review

If the Canada Border Services Agency (CBSA) believes that you do not have the legal right to enter or remain in Canada, whether as a permanent resident or foreign national, you may be detained. This also can happen if your identity cannot be established, if you are deemed unlikely to appear for a scheduled interview, if you are being investigated for security reasons, or if you may be a danger to the public. Under normal circumstances, the Immigration Division (ID) of the Immigration and Refugee Board of Canada (IRB) will review the reasons for your detention within 48 hours at a formal hearing. During the Detention Review, you will be given an opportunity to make the case for your release, and witnesses may provide testimony, if available. It is recommended that you hire an immigration lawyer to assist you with this matter to better negotiate your release and address the factors at play. For instance, you may agree to abide to certain conditions, such as reporting to CBSA on certain days, and living with a specific person. In addition, a cash or performance bond by a “bondsperson” may be required, whereby money is deposited to the government to guarantee your compliance.  Such a bond will only be returned if you abide by your conditions. 

If the ID determines that you should be detained, the next detention review will take place within 7 days, and if you are not released at that time, every 30 days after that. (Different timelines apply for Designated Foreign Nationals, or “irregular arrivals”). If you are released and breach your conditions, you will likely be detained again. You may request that the conditions be changed after some time, depending on the circumstances. With many years of experience in immigration, we can discuss with you your rights and obligations, and ensure your case has the best possible outcome.

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Federal Skilled Worker

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The Federal Skilled Worker (FSW) program is one of the three programs under which you may qualify for permanent residence through the Express Entry (EE) system. To assess eligibility, you are assigned a score out of 100 based on six criteria, language, education, work, age, arranged employment and adaptability

To qualify, the minimum score is 67 points. Each of the following basic requirements must also be met:

In the past 10 years, have completed 1 year of paid continuous work (part-time, or full-time, for a total of 1,560 hours) in a managerial, professional, or technical job, or skilled trade (National Occupation Classification skill type 0, or skill levels A or B). This must be in the same type of job as your primary occupation, not unrelated experience.

Take a language test to show proficiency in either English (with the CELPIP or IELTS test) or French (with TEF or TCF). The scores are standardized according to the Canadian Language Benchmark (CLB), where the minimum score is CLB 7.
Submit proof of any degrees or diplomas completed in Canada, or for foreign education, obtain an Educational Credential Assessment (ECA) for immigration purposes from a designated organization.

Show proof of sufficient funds to support yourself and each dependent family member (spouse or partner and children, whether accompanying or not), unless you are authorized to work in Canada and have a valid job offer.

Once you have established that you are eligible as a FSW, you may submit your profile, or “expression of interest” via Express Entry (or “EE”), a platform used to competitively rank candidates against each other. To this end, a different score based on EE’s Comprehensive Ranking System (CRS) is assigned to each profile. A detailed explanation of the selection process is covered in the Express Entry section. There are different ways to increase your CRS score and improve your chances of being invited to apply for permanent residence, such as retaking your language test, obtaining further education or work experience, or obtaining a qualifying job offer in Canada, among others. One important note is that as your age increases past the age of 35 (or age 30 under EE), your score decreases, so it is essential to identify the most efficient route to obtaining an ITA. Once you are invited and your application is submitted, an application under this category can lead to Canadian permanent residence in approximately 6 months.

There are many complexities that can affect an application under the Federal Skilled Worker category, including self-employment, multiple jobs, issues with education credentials, proving past employment, complicated family or marital status, previous applications and many others. As lawyers with over 25 years of experience in immigration law, we can provide you with legal advice on the viability of your application, identify legal and practical issues, create a detailed strategy and assist you with your application from start to finish.
Canadian Experience Class

The Canadian Experience Class (CEC) program is designed for applicants who have already gained work experience in Canada. It is one of the three programs under which you may qualify for permanent residence through the Express Entry (EE) system. To be eligible you must meet the following requirements:

CEC does not involve a point system and candidates will qualify if they meet the requirements above. Unlike other programs under Express Entry, CEC requires no proof of funds. If you meet the requirements, you may enter the “pool” of candidates by uploading a profile through EE. EE is a platform used to competitively rank candidates against each other by assigning a Comprehensive Ranking System (CRS) score to each profile. Since EE is points based, you may need to submit more documents than what is needed to simply qualify for CEC, as this will make your profile more likely to receive an invitation to apply (ITA). Once invited, how quickly your application is processed may vary, but the average time is approximately 6 months. There are several factors which may cause longer processing times, including errors or omissions in your application, which could even result in a refusal. The most crucial component in this application is which work experience you use to apply and what documents you use to prove it. The lawyers at our firm have many years of experience and can advise you on the optimal strategy to obtain permanent residence, ensuring the accuracy and completeness of your application.

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