Enhanced Travel Document

The Manitoba government continues to provide “enhanced” documents that serve as alternatives to a Canadian Passport for crossing the border into the United States by land and/or water. In certain circumstances, this enhanced travel document makes it easy to travel between Canada and the USA. The enhanced features allow the individual to cross the border easily and efficiently.

Currently, the only Canadian provinces to offer the enhanced documents are Manitoba, Ontario and BC. As noted below, Ontario may be canceling their program in 2019. In my view, this document is a poorly understood and little-known document that is cheap and easy to get.

Features:

  • Alternative to a Passport;
  • Helps people cross easily over the border;
  • Less stuff in your wallet/ purse.

The Manitoba enhanced Driver’s Licence allows individuals to simply use their Licence to cross the border. We used to be able to do this when crossing into the USA; however, the laws changed so that regular (non-enhanced) Driver’s Licences are no longer sufficient to enter the United States:

By Land and Sea (including ferries) – Canadian citizens traveling to the U.S. by land or sea are required to present one of the travel documents listed below, and may generally visit the U.S. for up to six months. CBP will accept: Canadian passport, Enhanced Driver’s License/Enhanced Identification Card, NEXUS, FAST/EXPRES and SENTRI enrollment cards.

Ontario recently proposed to discontinue this service and they have eliminated this option:

Ontario is proposing to eliminate an enhanced driver’s licence that allows people to enter the United States at land and water border crossings without a passport.

The driver’s licence option was introduced in 2009, when the U.S. required passports or other secure identification for anyone crossing into the country by land or sea, but it hasn’t had the anticipated uptake.

British Columbia and Manitoba have enhanced driver’s licences, and Quebec used to, but phased out the program — other provinces rejected the idea because it was too costly or there wasn’t enough public interest.

If you or your contacts are interested in the enhanced travel document, please contact our office and we can help with the application.

Presentation on Labour and Immigration

At the request of instructor Bill Mathieson in the School of Business, Alastair gave a presentation at BCIT in Vancouver on the intersection between labour laws and immigration, including LMIA applications and MPNP-BIS. In particular, the presentation focused on Charter rights and laws in Canada that intersect these different areas of law. Labour laws in Canada are complex and these laws have an impact on workers, businesses, employers and individuals. Each one of these categories may be subject to different laws and regulations.

labour

In particular, employers in Canada need to be aware of compliance issues and adhering to Charter rights. This was a presentation that was done spontaneously at the request of Bill and it was a pleasure to meet these students. The BCIT students were actively engaged with the topic and they are clearly well informed with some of the legal issues that they may face when they become HR Managers or other professionals in Human Resources.

If you or your company is seeking legal advice on the intersection between labour laws and immigration laws, please contact Clarke Immigration Law directly for assistance. 

Bill Mathieson is a senior lecturer with deep roots in Vancouver. He is one of Canada’s top labour negotiators and he has provided instruction to students at BCIT as well as SFU – School of Business.

Denied Entry to Canada: What Can You Do?

Crossing the border is rarely a simple act. In the post-9/11 world, security checks have increased and each foreign national faces additional scrutiny from Immigration Officers. In Canada, the border security is the responsibility of Canada Border Services Agency (CBSA), under the Ministry of Public Safety and Emergency Preparedness. They work closely with other police agencies and they have access to international databases to screen everyone, and everything, that goes through a border. When CBSA is dealing with a Permanent Resident of Canada, a Canadian Citizen or an immigration application, they may refer the case to their counterparts at Immigration, Refugee and Citizenship Canada (IRCC, formerly known as CIC). If you are denied entry to Canada, it may be due to a negative determination by a CBSA Officer or an IRCC Officer. What can you do?

The first question to deal with is where you are trying to enter. Issues vary between entering at land borders, ports and airports. 

One of the common situations that we face is when Permanent Residents who are trying to fly back to Canada without a valid PR Card. The airline will not let them board their flight back to Canada without a valid travel document. There are a number of risks in these situations. One of my first concerns is that if the PR is anxious to return, they may insist on boarding the flight and then, when they enter Canada, they may request temporary status. This puts their Permanent Resident status at risk and we do not advise this option.

When a PR is flying back to Canada without a valid PR Card, they have two (2) main options – neither option is cheap or easy. The first option is to go to the nearest Canadian Consulate, Embassy or High Commission. Canada has hundreds of offices peppered around the world in every continent, except Antarctica. I have never had a client call who could not travel to a Canadian office within their jurisdiction.

Once the PR reaches the consulate, they may apply for a Permanent Resident Travel Document “PRTD”. The government fee for the document is $50 and processing times vary from 1 hour to 2 months. We had one case where the printer at the Canadian office was broken and they had to order a new printer before they could issue new travel documents. In general, the Officers who work in these offices are very supportive and they will help any Permanent Resident who is courteous and professional.

The second option, for some, is to fly to the United States and enter Canada at a land border. For those clients who are at the airport and they do not want to leave the airport, this may be an option. NOTE: this option is only available to individuals and/ or families who are able to enter the United States and they do not have other issues with American authorities. We also advise our clients that we do not practice US immigration law and, therefore, if there are any issues with US authorities, we would refer the matter to an American colleague.

Being denied entry can be a stressful experience. Airline staff are not government officials and their knowledge of Canadian immigration law is limited. If you or your family members are in a situation where you are denied entry, we recommend that you call a lawyer whom you trust to help you properly navigate the system.

 

CBC: Future of STCA

Alastair Clarke was recently interviewed on CBC The House podcast on the future of the Safe Third Country Agreement (STCA). Currently, this Agreement has been at issue based on the numbers of refugee claimants who have been coming north from the United States. Many of these people have been crossing “irregularly” around the Ports of Entry into Canada to access the inland refugee determination process, thus getting around the Safe Third Country Agreement (STCA).

As reported by the CBC:

Last year, more than 20,000 asylum seekers crossed illegally into Canada. The trend seems to be continuing this year, with about 5,000 crossing so far.

The government has been hard-pressed to find a working approach to this steady stream of migrants. Some of the ideas being floated include designating the entire Canada-U.S. border an official crossing, deploying more resources to popular spots for illegal crossings and addressing issues with the Safe Third Country Agreement (STCA).

[…]

Part of the issue with the agreement in its current form is that it was drafted at a time when both countries shared a similar view on refugees, said Alastair Clarke, a Winnipeg-based immigration lawyer.

But now Canada is “very distinct from the United States,” he told The House.

The model needs to be revised to account for changes in the politics of both countries, he said.

To read the full article, please click here. You can also access the podcast from the CBC website.

Note that Alastair has been calling for the Safe Third Country Agreement (STCA) to be repealed or suspended since Jan 2017 and he has published on this topic. The Toronto Star reported on this issue in Feb 2017. He also presented on this topic (STCA) at the Canadian Bar Association national immigration law conference in Toronto.

Major Changes to Medical Procedures

We recently had a conference call with IRCC regarding the major changes in policy to the treatment of cases with medical issues. These cases involve family members with health problems that may cause “excessive demand” on Canadian resources. Our office has been assisting many families with many cases of medical inadmissibility. The Warkentin case, filed with Federal Court, was key to having the policies changed.

It has been a pleasure to work with the Warkentin family and the community. We are thrilled and honored that our hard work has paid off. This has been a national effort and I applaud our colleagues in Toronto, in particular Adrienne Smith and all her hard work.

The changes have been reported on the IRCC website included a few details on the changes to how they process allegations of medical inadmissibility. The two (2) major changes listed are:

The new policy on medical inadmissibility strikes a balance between protecting publicly funded health and social services and updating the policy to bring it in line with current views on the inclusion of persons with disabilities. The changes include:

  • increasing the cost threshold for medical inadmissibility to 3 times the previous level, and

  • amending the definition of social services by removing references to special education, social and vocational rehabilitation services and personal support services.

This case has also been reported in the Winnipeg Free Press in an article by Carol Sanders. Here is an excerpt that that article:

On Monday, Immigration, Refugees and Citizenship Minister Ahmed Hussen announced changes to the medical inadmissibility provision of the Immigration and Refugee Protection Act so that Canada’s immigration policies “better align with Canadian values and reflect the importance that the government places on the inclusion of persons with disabilities.”

“This is really good news,” Winnipeg lawyer Alastair Clarke said after a conference call with Jon Warkentin and federal immigration officials Monday.

“We’re changing the law,” he said of those who spoke out against the 40-year-old immigration policy.

“If it did, then that’s great,” said Jon Warkentin by phone from the family’s home 320 kilometres northwest of Winnipeg in Waterhen. “That’s what we were hoping for, for some changes there. If our family was part of that, then that’s great.”

The Warkentin family have been pillars of the community in western Manitoba. Our goal is to help all families achieve their goals – for their benefit as well as the benefit to Canada. In our practice, we often see that the contributions of the families with medical inadmissibility issues are overlooked. We firmly believe that our clients are truly beneficial to Canadian society and they represent the future of our country.

Have you or any friends or family been accused of medical inadmissibility?

Currently, the law is in a state of flux. The IRCC policy changes have been announced; however, all the cases in the inventory within the government may be reassessed.

The relevant section of the law in IRPA sets out the section:

(1) A foreign national is inadmissible on health grounds if their health condition

  • (a) is likely to be a danger to public health;

  • (b) is likely to be a danger to public safety; or

  • (c) might reasonably be expected to cause excessive demand on health or social services.

Any applicants who may fall under the above section of Canadian immigration law may have their applications reconsidered under the new procedures. We highly recommend that any applications with medical issues be reexamined by a professional, certified immigration lawyer to make sure the cases are handled properly. Feel free to contact our office directly with any questions or concerns.

Canada Flag Pins

We had a client, about a month ago, who was preparing in our office before his hearing at the Immigration and Refugee Board. As we were leaving for the tribunal, he noticed Heavenly’s Canada Flag pin which she regularly wears on her lapel. He complimented her on it and, in turn, she gifted him the pin to give him good luck with his hearing. We got a positive decision on that day and, of course, the client was very happy.

Canada Flag pins

Since then, we contacted MP Jim Carr’s office and they have provided many new pins! So for anyone in downtown Winnipeg, feel free to come by to pick up a pin!

When I saw this new bag of Canada Flag pins, I actually felt quite nostalgic. I brought a bag of Canada Flag pins when I moved to Ecuador in 1993. While I was there, I handed them out to Ecuadorian, Colombian and Australian friends. They were extremely popular in the small city of Esmeraldas. I ran out of them very quickly and then I noticed that my friends would pass them around and trade them.

I also brought a small bag of pins with I moved to Tokyo to teach in a public Junior High School. I used the pins as rewards for students who did well on English assignments or tests. They were also very popular with my Japanese students. For them, it was not only an interesting international object that traveled to them from a far off land, it was also a badge of doing well in school. The trick was to try to get pins into different hands. I had a few students who were extremely good students and they would have earned all the pins.

At Clarke Immigration Law, we are going to give away these pins to all our clients who are preparing for their hearings. Hopefully it will also give them good luck and confidence!

CTV News: New Surge to Manitoba

Clarke Immigration Law was featured on CTV News yesterday in a story on the rescinding of Temporary Protected Status for citizens of El Salvador who are living in the United States. In our practice, we have assisted clients from many countries who have found their path to Manitoba. Many of these stories are horrendous. We are greatly concerned that the situation in the United States may force the +200,000 people from El Salvador to come north to Canada and for safety and security. Currently, the refugee determination system in Canada is suffering from long timeframes and inadequate resources for the refugee claimants in the system.

Here is an excerpt from Josh Crabb’s article on CTV News:

Salvadorans living with temporary protected status in the U.S. have until Sep., 2019 to leave the country or face

Temporary Protected Statusdeportation.

Winnipeg-based immigration lawyer Alastair Clarke said it’s reasonable to think some Salvadorans may look north when their temporary protection status in the U.S. ends.

“It’s reasonable to think many will come to Canada,” said Clarke. “We should expect a surge.”

The federal immigration minister said the department is monitoring the situation but downplayed concerns Tuesday in Ottawa that the move would result in an influx of asylum seekers coming to Canada.

“El Salvadorans have until September 2019 to either leave the United States or find a new way to obtain legal residency or regularize their status,” Ahmed Hussen told reporters in Ottawa. “It’s important to note until 2019 in September members of this community have the opportunity to regularize their status. They still have TPS (temporary protected status) until then.”

To watch the clip that was featured on CTV News, click on this link.

Clarke Immigration Law is currently assisting clients from various countries in Central and South America. Note that Alastair is fluent in Spanish and he can assist Spanish-speaking clients in their mother tongue. Each refugee claim is based on a case-by-case determination.

Temporary Protected Status

In the United States, more than 300,000 individuals from various countries have been protected by Temporary Protected Status. This status does not give them a “Green Card” or permanent status but it has meant that they can work and live in the United States without fear of being deported by ICE Officers.

The Trump administration has been repealing or withdrawing support from these communities. Haitians and Salvadoreans are not the only groups that will be affected. US Immigration attorneys Dawn M. Lurie and Alexander Madrak have outlined some of the legal consequences to TPS in this article.

Please contact our office for more information.

SCC Decision: Conditional Sentences

Today, the Supreme Court rendered an important decision on the rights of permanent residents with criminality issues. The Tran decision from Federal Court of Appeal was overturned and the highest court in Canada has held that “conditional” sentences from criminal court are not considered “imprisonment”. This has a huge impact on minor convictions where the Sentencing Judge have a conditional sentence to the offender. Those Permanent Residents were subject to harsh treatment by CBSA and, in turn, the tribunal and they faced deportation.

Here is a key section from the decision by Justice Côté, paragraphs 32 to 34:

If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA  (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

   It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

For these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA  cannot, by either standard of review, be understood to include conditional sentences.

As noted above, the Tran decision from the FCA has caused harsh, even “absurd” consequences for our clients. We strongly agree with Justice Côté’s decision and this has had an immediate impact on one of our clients.

12 Month Conditional Sentence

Our client was given a 12 Month Conditional Sentence in Feb 2017 and his matter was referred to the Immigration and Refugee Board of Canada, Immigration Division. Based on the SCC Tran decision, he now has a good chance of staying in Canada with his Canadian children. His conditional sentence will now not be counted as “imprisonment” and, therefore, the SCC decision will have a strong positive impact on his case.

Congratulations to Peter and all the lawyers who worked on the Tran decision!

Advocates concerned about unaccompanied minors seeking asylum in Canada

FROM LEADERPOST.COM

Immigration lawyer Alastair Clarke calls it a “travesty of justice.”

In Buffalo, N.Y., a client is currently living in a shelter, desperately awaiting news about how she might be reunited with her three young children, all under the age of 10.

The woman fled the small East-African country of Burundi with her kids and landed in the United States with a visitor’s visa, hopeful they could all eventually claim asylum in Canada, where her sister-in-law is a permanent resident, living in Winnipeg.

But when they did attempt to cross the border by bus it became clear another difficult journey was ahead.

Read the full article…

Free Presentation: Law in the Library – Transcona

Please note that Alastair Clarke will be giving a free presentation on citizenship law and other changes to immigration law at Transcona Library as part of the Law in the Library Series presented by the Community Legal Education Association.

Here is a description of the program:

Are you new to Canada? Are you looking for help in some legal aspects of immigration? Join us for a free program to help provide you with legal information that you may need. Our guest lawyer Alastair Clarke will cover issues like immigration options, sponsorship, citizenship applications, bringing family members to Manitoba, MPNP and other options. Please bring questions for the lawyer to answer!

For more information, contact the library directly at 204-986-3954.