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.

In the News: “Repeal Safe Third Country Agreement, says Manitoba lawyer”

Published by Law Times, 6 Feb 2017, article: “Repeal Safe Third Country Agreement, says Manitoba lawyer”.

A Manitoba lawyer who handles refugee claims says more people are coming to Canada due to the rising rhetoric in the United States and Canada needs to act now to suspend the Safe Third Country Agreement.

Challenges facing immigrants and refugees have gained widespread attention since Jan. 27, when Trump suspended the U.S. Refugee Admissions Program for 120 days, and stopped nationals from Yemen, Sudan, Libya, Somalia, Syria, Iran and Iraq from going into the United States for 90 days.

A U.S. federal judge suspended the order last week, and now, the government has a chance to submit legal briefs in support of Trump’s intended policy changes. The battle may end up before the U.S. Supreme Court.

[Update: There is now litigation in 4 states and the case will be heard at the Federal Court of Appeal.]

Manitoba has garnered attention since CBC reported that more than 400 people were intercepted near the U.S.-Canada border at Emerson between April to December 2016.

Crossing the Land Border Into Canada

“I think there’s just a general impression that Canada is a safer country than the United States, and they will have more support here, and that [they] will have a better life,” says Alastair Clarke, founder of Clarke Immigration Law in Winnipeg.

Due to Trump’s changes, the Canadian Association of Refugee Lawyers last week was “calling on Canada to immediately suspend the Safe Third Country Agreement.”

“Under the STCA, those who try to enter Canada through the U.S. to make a refugee claim at the border are returned to the U.S. regardless of whether they will or already have had access to asylum in the U.S. The U.S. and Canada have considered one another “safe” for asylum-seekers,” said a CARL news release.

“The STCA creates a North American approach to refugee approvals. With President Trump’s Executive Orders, the U.S. is unilaterally changing the terms of that approach, with potentially disastrous consequences for vulnerable asylum-seekers.”

Here is a link to the CARL Press Release.

In Winnipeg, Clarke works with groups that have housing set up and are working “as hard as they can to bring as many people” as they can support.

“The government can’t keep up with the demand,” says Clarke, adding that the biggest legal hurdle he’s grappling with is the STCA.

“Unless the refugee claimant is able to fall under one of the exemptions listed in the agreement, then they are denied at the border,” says Clarke, who says most people who are successful are able to do it due to exemptions related to having family in Canada.

Clarke has handled about 30 to 35 files involving refugee claimants since January 2015, from countries such as Haiti, Burundi, Ethiopia, Eritrea, Somalia, and Nigeria.

“I think more people are coming based on the rhetoric coming from the United States. It’s partially Trump, but I mean Trump was elected, because in general, there is an anti-refugee sentiment in the United States,” he says. “It’s not just him, but I think — generally speaking — there is less of an appetite for refugees in many parts of the United States.”

The above is an excerpt from the article published by Law Times. For the complete article, please click the link above.

For a description of the Safe Third Country Agreement from CBSA, click here.

For the full text of the Agreement between Canada and the United States, click here.

Positive Federal Court Decision

Today, the Federal Court of Canada issued a positive decision today on a case where the Applicant was represented by neither a lawyer nor a consultant. The court agreed that the actions of the representative qualified as such an injustice against the Applicant that the appeal was allowed. This is another case of a representative whose actions cost the Applicant significant time & money. The legal costs to filing the appeal to Federal Court are not insignificant.

In the words of Justice Heneghan:

[The Applicant] sought assistance from one Mr. Ademola Oladapo in the preparation of submissions in support of her PRRA, believing that he was a lawyer. It transpired that Mr. Oladapo is neither a lawyer nor a registered immigration consultant, and the submissions that he filed on behalf of the Applicant were factually wrong.

Mudongo v. Canada (Citizenship and Immigration) 2016 FC 1354

I have never met Mr. Oladapo and I have not had any contact with him. It is entirely possible that he tried to help the Applicant with good intentions. It is not clear whether he charged her thousands of dollars $$$ for his services. That information is not included in the decision.

The decision focuses on the negative implications of the representative’s actions.

Mr. Oladapo presented a factually incorrect basis for the Applicant’s PRRA and in my opinion, that fact means that she did not receive a fair assessment of her claim to be at risk in her country of nationality.

Based on the work done by the unqualified non-lawyer, the Applicant’s refusal was reversed and she won the appeal.

My question is: at what cost? And how could this have been avoided?

Clarke Law In the News: CBC Article

CBC has been following the tragic case of the two men from Ghana who crossed the border into Manitoba in the freezing cold and walked for hours and hours. They are in hospital under the care of the doctors in Winnipeg; unfortunately, the damage to fingers and toes is serious and they will (or have already) face amputation. Refugees crossing into Canada is too common and it is very dangerous. It is important to remember, however, that the people who risk the bitter cold know that the violence from their home country is worse.

CBC contacted Clarke Law for an expert opinion on Canadian immigration law. Here is an excerpt from the article:

Why are people sneaking across the Canada-U.S. border to seek refugee status?

The Canada and the United States have a security deal called the Canada-U.S. Safe Third Country Agreement.

 

It says refugee claimants have to apply for refugee protection in the first safe country they arrive in, with some exceptions, including things like public interest and family.

Crossing the Border Into Canada

 

“A lot of people who would get refugee status in Canada that can’t get it in the U.S.,” said Labman.

 

Alastair Clarke, a Canadian immigration lawyer who has been in the field for more than a decade, said people avoid border crosses because “they’re worried that they’re going to be turned away.”

“When somebody is coming to Canada without any status and they go to a border, they have very limited rights. It’s unfortunately all too common that people are turned away at the border for bad reasons,” he added.

 

Clarke said immigration officers in Winnipeg, for example, may be more sympathetic than officers at the border. Also, they can get support from the community within Winnipeg.  Clarke said officers in the city of Winnipeg, for example, are more likely to allow an asylum seeker to make a refugee claim than officers at the border.

Clarke said the people crossing are vulnerable, in desperate circumstances and are trying to get to Canada however they can.

 

“When we get to the tribunal, and we talk about their case and we try to make a determination whether they fall into one of the categories of a refugee, how they came to Canada is relevant, but it’s not the main focus of the hearing,” said Clarke. “We’re more interested in whether or not their life is at risk, whether or not they may be subject to torture and whether or not they fall within one of the definitions.”

For the full article, published by CBC News, click here.

Refugees Crossing Into Canada

Everyday we get clients who come to our office and tell their tremendous, heart-breaking stories. Before they reach our door, they have already endured extreme hardship and an extensive journey. It is important to remember that the refugees crossing into Canada are fleeing a situation – for myriad reasons – that leads them to believe they have no choice. They give up everything in their home countries to make the long journey to Canada in the hope of a better life.

Spousal Open Work Permit – Extended to Dec 2017

As expected, the hugely successful Open Work Permit program for applicants under the In-Canada Spousal Sponsorship application has been extended for another year. Part of the announcement:

Ottawa, December 7, 2016 — Family reunification is a core immigration priority for the Government of Canada. In addition to the changes made today to process spousal sponsorship applications faster, we are also extending the open work permit pilot program until December 21, 2017, to give spouses a chance to work while their application is being finalized.

To be eligible for an open work permit, you must be a spouse or common-law partner living in Canada who is being sponsored under the spouse or common-law partner in Canada (SCLPC) class. You must have valid temporary resident status (as a visitor, student or worker) and live at the same address as your sponsor.

Premier Plans to Eliminate MPNP Backlog

Premier Pallister announced changes and improvement to the MPNP program today, including a promise to eliminate the MPNP backlog. Here is an excerpt from the News Release:Winnipeg Immigration Lawyer

The premier noted the changes announced today are part of a new Labour Market Strategy for Immigration that focuses on:
• innovative partnerships with industry and post-secondary institutions that build pathways to employment for international students and skilled newcomers, including those in regulated occupations, to better prepare and match them to in-demand jobs in Manitoba;
• the selection of skilled workers with high potential for early and strong attachment to the labour market and who meet education, training and language requirements;
• the selection of entrepreneurs with a strong potential to establish high-investment, job-creating businesses in all regions of the province; and
• the elimination of the current MPNP backlog by April 2017 to ensure all future applicants receive a higher standard of service and are processed in less than six months.

We will have to see how these announcements will affect our clients and MPNP applicants. If they are able to eliminate the backlog, this could lead to increased efficiency.

The Premier went on to say:

“Manitoba is once again open for business, offering a diverse economic base with areas of undiscovered potential ready for the expansion of existing businesses, development of our entrepreneurial talent, and attraction of new investment and the opportunities it will bring,” said Pallister.  “Renewing Manitoba’s Provincial Nominee Program will facilitate the inclusion of skilled immigrant workers as an integral part in the development of our labour market and Manitoba’s economy as a whole.”

For a complete version of the announcement, please visit the Government of Manitoba’s website.

Canadian Immigration Podcast: MPNP

I had the fortune of being invited on the Canadian Immigration Podcast, hosted by immigration lawyer Mark Holthe, as an expert on the Manitoba Provincial Nominee Program (MPNP). We had a great conversation and we covered some tips on putting an application together as well as other issues.

MPNP

 

Here is a description of the show from Mark’s website for the Canadian Immigration Podcast:

Along with providing extensive insights into how the program works, Alastair touched on how it can be used to transition foreign workers (both low and high skill) into PR status in Canada. Alastair also shared his knowledge on the options available to those who may have a weaker connections to the Province.

During my interview with Alastair, we discuss the following areas:

  • The Manitoba PNP

  • Options for foreign nationals to immigrate with few connections

  • How can the PNP be used to transition foreign workers

  • Options for low-skill workers

  • Where the MB PNP is headed in the future

  • Practical tips for submitting applications to the MB PNP.

How can you listen to the Canadian Immigration Podcast?

The podcast is available through all the major listening platforms. The easiest way is to listen through Mark’s website on the page of the MPNP interview. Otherwise, you can download Stitcher app for your phone or another option is to listen through Overcast. Here is a review of Overcast.

MPNP – How can you learn more?

I was truly honoured to be invited by Mark as an expert on the MPNP program. We have posted various posts on the program on this site and I hope there are helpful to readers. The program is constantly changing in small ways and we strive to keep on top of all the changes. If you have any comments or suggestions on topics, please contact our office directly: info@apply2manitoba.ca