In Canada, immigration is primarily regulated by the Immigration and Refugee Protection Act (IRPA). Canada admits several categories of immigrants, including economic, family, and refugee migrants. Nationality law is governed by the Citizenship Act, which provides for three pathways to citizenship, namely through birth, descent, and naturalization of permanent residents.
Persons born in Canada are generally recognized as citizens. A person born abroad is subject to a one-generation rule, where at least one of the parents must either be a citizen by birth or a naturalized citizen. In order to become a Canadian citizen through naturalization a person must meet requirements relating to age, permanent resident status, length of residence in Canada, language abilities, criminal history, and knowledge of Canada.
Immigration and Citizenship Overview
Immigration to Canada is predominantly regulated by the Immigration and Refugee Protection Act, 2001 (IRPA). Canada had been known to have a fairly broad and generous immigration policy, but since 2006 the government has pursued reforms to “focus Canada’s immigration system on fuelling economic prosperity” and to place “a high priority on finding people who have the skills and experience required to meet Canada’s economic needs.” Since 2008, Canada has been tightening its immigration policies and focusing on economic class and short-term labor market needs.
Canada accepts several categories of immigrants for permanent residence. In addition to economic immigrants (skilled or business immigrants), Canada admits family members, provincial nominees, adopted children, refugees, and others, such as immigrants admitted on humanitarian or compassionate grounds. The Canada Border Services Agency (CBSA) is responsible for border enforcement, immigration enforcement, and customs services, while Citizenship and Immigration Canada (CIC) manages immigration and citizenship issues.
Canada’s nationality law is governed by the Citizenship Act. Under the law, there are three pathways to citizenship, namely through birth, descent, and naturalization of permanent residents. CIC administers the application process and guides applicants through the steps to becoming Canadian citizens. CIC staff also “process citizenship applications, requests for proof of citizenship and searches of citizenship records.” According to CIC, “[e]very year approximately 160,000 people become Canadian citizens and take an oath of citizenship at ceremonies across the country.”
Visas for Tourists, Students, Businesspersons, and Other Categories
Canada issues visas to visitors on business, tourists, students, parents and grandparents of citizens or permanent residents, and workers. Only persons from certain countries are required to obtain a visa prior to their arrival as a visitor. However visa-exempt travelers are still required to meet other requirements, such as holding a valid passport.
According to CIC, in 2013 Canada will introduce “biometric identity screening” for nationals of twenty-nine countries and one territory when they apply for a temporary resident visa, study permit, or work permit.
According to CIC, “[a] permanent resident is someone who has acquired permanent resident status by immigrating to Canada, but is not yet a Canadian citizen.” However, if they meet the requirements they can become citizens through naturalization.
Permanent residents “have rights and privileges in Canada even though they remain citizens of their home country.” In order to retain permanent resident status, “they must fulfill specified residency obligations.” According to CIC, “[a] person in Canada temporarily, such as an international student or a temporary foreign worker, is not a permanent resident.”
As noted above, Canada provides permanent residence visas to eligible applicants in different categories.
Family class immigrants are awarded residence based upon their relationship to their sponsor. According to CIC, “[i]f you are a Canadian citizen or a permanent resident of Canada, you can sponsor your spouse, conjugal or common-law partner, dependent child (including adopted child) or other eligible relative to become a permanent resident.” There are two different processes for sponsoring family members under this class. One is used for sponsoring a spouse, conjugal or common-law partner, and/or dependent children, and the other is used to sponsor other eligible relatives.
Canada admits three types of business immigrants as part of its Business Immigration Program: investors, entrepreneurs, and self-employed persons. However, CIC has temporarily stopped accepting new applications for its investors and entrepreneurs program. Business immigrants are not assessed on the points system that is used for other skilled migrants. Canada’s provinces have their own Nomination Programs for business immigration programs.
In addition, Canada admits skilled workers through its Federal Skilled Workers Program, which is based on a points system. Canada also grants permanent residency to skilled workers under its Federal Skilled Trades Program and the Canadian Experience Class (CEC). The Federal Skilled Trades Program is for persons “who want to become permanent residents based on being qualified in a skilled trade.” This relatively new program started on January 2, 2013, to deal with labor shortages of skilled traders in some regions of the country. Under the CEC program, any skilled workers who have twelve months of skilled work experience in Canada in the three years before they apply and the requisite language skills can transition from temporary to permanent residence (additional requirements apply).
The Canadian government has signed agreements with a number of Canada’s provinces that allow the provinces to sponsor immigrants under their respective Provincial Nominee Program (PNP) “who will meet specific local labour market needs.” They receive priority processing time from CIC. The criteria for admitting immigrants vary by province and territory. According to CIC, “[i]n the last ten years, the PNP has become the second largest source of economic immigration to Canada. In 2011, more than 38,000 provincial nominees (including their spouses and dependants) were admitted to Canada, an almost six fold increase since 2004.”
All the provinces and territories except Quebec and Nunavut have signed nominee agreements with the federal government. Quebec has a separate arrangement under the Canada-Quebec Accord. The Province of Quebec administers its own immigration program, which “establishes its own immigration requirements and selects immigrants who will adapt to living in Quebec.” Quebec uses a points system that is similar to the federal government’s points system to assess its applicants, but it awards a higher number of points for fluency in the French language. Applications accepted by Quebec are submitted to the federal government for medical examinations and background checks.
Canada also admits refugees as permanent residents. In the last few years Canadian refugee policy has been generally seen as relatively generous and lax, to such an extent that many critics contend it invites fraud and abuse. However, in the past year, in an effort to thwart “bogus” refugee claims, Canada’s Parliament passed Bill C-31, also known as Protecting Canada’s Immigration System Act.
Citizenship by Birth in Canada
Similar to the United States, persons born in Canada are generally granted citizenship. The only exception is children of foreign diplomats, who are not granted Canadian citizenship even if they are born in Canada. There has been some discussion in the past year about whether there should be changes to the law to target “birth tourism.”
Citizenship by Descent
As a result of 2009 amendments to the Citizenship Act, a person who is born abroad can obtain citizenship only if at least one parent is a Canadian citizen who was either born or naturalized in Canada. According to CIC, “under the old rules, it was possible for Canadians to pass on their citizenship to endless generations born outside Canada. To protect the value of Canadian citizenship for the future, the 2009 law generally limits citizenship by descent to one generation born outside Canada.” The rule changes may also “affect children adopted by Canadian parents outside Canada, depending on how the child obtained, or will obtain, citizenship.”
The 2009 amendments also attempt to address the problem of “lost Canadians;” persons who have either lost their citizenship or never had it due to provisions in existing and former citizenship laws.
Naturalization or Permanent Residency
According to CIC, in order to be eligible for Canadian citizenship through naturalization, a person must meet certain requirements related to (1) age, (2) permanent resident status, (3) residence in Canada, (4) language abilities, (5) criminal history, and (6) knowledge of Canada.
* A person must be at least eighteen years old to apply for Canadian citizenship. According to CIC, in order for a child under eighteen to apply for citizenship, the following requirements must be met:
* the person applying must be the child’s parent, adoptive parent, or legal guardian;
* the child must be a permanent resident “but does not need to have resided in Canada for three years;” and
* one parent (including in the case of adoptive parents) must already be a Canadian citizen or be applying to become a citizen at the same time.
Permanent Residence Status and Residence in Canada
In order to become a Canadian citizen, a person must also have permanent resident status in Canada, “and that status must not be in doubt.” This means he or she must not be “the subject of an immigration investigation, an immigration inquiry or a removal order (an order from Canadian officials to leave Canada).”
Moreover, adults eighteen years or over must have resided in Canada for at least three years (1,095 days) in the past four years before applying. As noted above, children under the age of eighteen do not need to meet this condition. According to CIC, “[y]ou may be able to count time you spent in Canada before you became a permanent resident if that time falls within the four-year period.”
English and French are the two official languages of Canada. To become a citizen, “you must show that you have adequate knowledge of one of these languages.” This includes having documents to prove one’s ability to speak and understand English or French. In addition, a CIC staff member or citizenship judge will interview applicants to see whether they understand basic spoken statements and questions, and are able to express basic information and answer questions.
According to CIC, when talking to CIC staff or being interviewed by a citizenship judge, a person must show that he or she is able to
* take part in short, everyday conversations about common topics;
* understand simple instructions and directions;
* speak using basic grammar, including simple structures and tenses; and
* show that one knows enough common words and phrases to express oneself.
According to CIC, a person cannot become a citizens if he or she
* has been “convicted of an indictable (criminal) offence or an offence under the Citizenship Act” in the three years before making the citizenship application;
* is “currently charged with an indictable offence or an offence under the Citizenship Act;”
* is “in prison, on parole, or on probation;”
* is “under a removal order (have been ordered by Canadian officials to leave Canada);”
* is under investigation for, charged with, or been convicted of a war crime or a crime against humanity; or
* has had his or her “Canadian citizenship taken away in the past five years”.
Knowledge of Canada
According to CIC, “[t]o become a citizen, you must understand the rights, responsibilities and privileges of citizenship, such as the right and responsibility to vote in elections. You must also demonstrate an understanding of Canada’s history, values, institutions and symbols.” Applicants must sit a written citizenship test, with CIC providing a study guide to help people to study for the test.
Penalties for Violating Immigration Laws
Sanctions for Unlawful Entry and Overstaying
The IRPA does not specifically criminalize unlawfully entering the country or unlawfully overstaying a visa. Both of these types of actions, however, fall under the general prohibition against contravening the law without exercising due diligence to prevent doing so.
Crown prosecutors have discretion to try general IRPA offenses either by way of an indictment or in summary proceedings. The distinction between indictable and summary offenses is similar to the distinction between felonies and misdemeanors in the United States, and a crime that can be tried either by way of an indictment or in summary proceedings is considered to be a “hybrid” offense. The maximum penalty for a person who commits such a general offense as entering the country unlawfully or unlawfully overstaying a visa is a fine of Can$50,000 and imprisonment for two years, if prosecuted by way of an indictment, and a fine of $10,000 and imprisonment for six months, if prosecuted in summary proceedings. Crown prosecutors usually base their decisions as to whether a defendant should be tried by way of an indictment or in summary proceedings upon such factors as the seriousness of the violation, the defendant’s intentions, and the defendant’s prior record.
Most persons caught violating the general provisions of the immigration laws are deported or ordered to leave Canada. CBSA administers the detention and removal of illegal immigrants and persons who overstay their visa. According to a November 2010 CBSA report,
[i]ndividuals who are removed from Canada are removed in priority if: they pose a threat to the security of Canada; they are involved in crime, organized crime or crimes against humanity; they are failed refugee claimants; or they are otherwise inadmissible (e.g., expired visas, misrepresentation of their identity, including marriages of convenience and fraudulent documents).
Sanctions for Hiring Undocumented Workers
Another general offense under the IRPA is hiring undocumented workers. Section 124(1)(c) states that anyone “who employs a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed” is guilty of an offense. The maximum penalties for this offense are the same as those for entering the country illegally or overstaying a visa illegally. A person is not guilty of the offense of illegally hiring an undocumented worker if he or she exercised “due diligence.” The Act and its regulations do not specify what the accused must show in order to prove that he or she did in fact exercise due diligence.
The IRPA also makes both counseling misrepresentation and general misrepresentation criminal offenses. Misrepresentation can be committed by withholding material facts, giving misleading information, and refusing to answer questions in legal proceedings. These offenses are punishable with a maximum fine of Can$100,000 and imprisonment for five years, if prosecuted by way of an indictment, and a maximum fine of Can$50,000 and two years of imprisonment, if prosecuted in summary proceedings.
In addition to criminalizing misrepresentation, the IRPA has special provisions for using, exporting, and dealing in forged documents that purport to establish a person’s identity. Possessing a forged document is punishable with up to five years of imprisonment, while using, exporting or dealing in forged documents is punishable with up to fourteen years of imprisonment. Canada has had numerous problems with forged passports. In several reported cases, international incidents have arisen out of discoveries that international criminal or terrorist groups were using forged Canadian passports.
Along with the penalties for hiring illegal immigrants, Canada also has strict laws against human smuggling and trafficking. A person who smuggles fewer than ten persons into the country is liable on a first offense to a fine of up to Can$500,000 and imprisonment for up to ten years. For a subsequent offense, the maximum fine is doubled and the maximum period of imprisonment is raised to fourteen years. Those who smuggle more than ten persons into the country are liable to a fine of up to Can$1 million and imprisonment for life. Moreover, the Act also provides for mandatory minimum punishments for smuggling of persons fewer and greater then 50 persons. Disembarking persons at sea is a separate offense that is also punishable with a fine of up to Can$1 million and imprisonment for life. In determining the appropriate sentence for persons who engage in human trafficking or disembarking of persons, judges must consider such aggravating factors as whether the aliens died or suffered any bodily harm or the crime was committed under the direction or association of a criminal organization.
Unlike many other jurisdictions, border security and management is primarily the responsibility of a single agency, the Canada Border Services Agency (CBSA). Its mandate is to ensure “the security and prosperity of Canada by managing the access of people and goods to and from Canada.” The CBSA’s legislative, regulatory, and partnership responsibilities include
* administering legislation that governs the admissibility of people and goods, plants and animals into and out of Canada;
* detaining those people who may pose a threat to Canada;
* removing people who are inadmissible to Canada, including those involved in terrorism, organized crime, war crimes or crimes against humanity;
* interdicting illegal goods entering or leaving the country;
* protecting food safety, plant and animal health, and Canada's resource base;
* promoting Canadian business and economic benefits by administering trade legislation and trade agreements to meet Canada's international obligations;
* enforcing trade remedies that help protect Canadian industry from the injurious effects of dumped and subsidized imported goods;
* administering a fair and impartial redress mechanism;
* promoting Canadian interests in various international forums and with international organizations; and
* collecting applicable duties and taxes on imported goods.
Since its establishment in 2003, the CBSA has “brought together customs, immigration, and food inspection/biosecurity functions from three separate agencies. Customs and biosecurity clearance is now carried out by a single border guard.” Canada has invested “over $10 billion in border security and emergency preparedness since September 2001.”
Since 9/11, Canada and the US have made substantial investments in coordinating border security and management. In 2001, Canada and the United States “strengthened their joint management of the border on the basis of the 30-point Smart Border Declaration and Action Plan.” The agreement is said to have “enhanced cooperation in the following areas: the secure flow of people; the secure flow of goods; secure infrastructure; and coordination and information sharing. It has been a model for other countries on how to work together on border issues.”
In August 2009, at the North American Leaders’ Summit in Guadalajara, Canadian Prime Minister Stephen Harper, U.S. President Barack Obama, and Mexican President Felipe Calder?n “affirmed that our integrated economies are an engine of growth. We are investing in border infrastructure, including advance technology, to create truly modern borders to facilitate trade and the smooth operation of supply chains, while protecting our security.”
On February 4, 2011, Prime Minister Stephen Harper and President Barack Obama announced the Beyond the Border Declaration, which “outlines joint priorities to strengthen shared security and improve the legitimate flow of people, goods and services across our borders.” This action plan “sets out joint priorities for achieving that vision within the four areas of cooperation identified in the Beyond the Border Declaration: addressing threats early; trade facilitation, economic growth and jobs; cross-border law enforcement; and critical infrastructure and cyber-security.”