HUMANITARIAN AND COMPASSIONATE (H&C) APPLICATIONS
A HANDBOOK ON THE LAW, PROCEDURE AND PRACTICE OF CANADA APPLICATIONS
Copyright © 2018 by Raj Napal
All the characters, names, places and incidents are the product of the author’s imagination. Any resemblance to actual events, locales, organizations, or persons living or dead is entirely coincidental and beyond the intent of either the author or the publisher.
THE ILLEGAL IMMIGRANT
From recent statistical surveys, an estimate of the number of people in Canada, who are undocumented illegal immigrants is more than 100,000. Some statisticians say it is closer to 500,000, if not more people. A large majority of these illegal immigrants have lived in Canada for a number or years. These illegal immigrants live ‘underground’---an expression to emphasize that they live in hiding. They are invisible on the radar scan of the Federal and Provincial government authorities. They work for cash, so there is no trace of them within the Canada revenue agency database as they do not file income tax returns and have no T4 pay stubs. They have no provincial health coverage such as the Ontario Health Insurance Plan. When they visit walk-in clinics, they pay cash for any medical services they receive. However, they constantly live in fear of being caught.
But how do these immigrants become illegal? Everyone living in Canada must have legal immigration status in accordance with our immigration laws. The laws are embodied in the Immigration and Refugee Protection Act (IRPA) and Regulations. (IRPR) Lawful residence in Canada means they are lawful temporary residents with a valid visitor visa, work permit, student permit or temporary resident permit or are permanent residents with a valid permanent residency card (PR card) that allows them to live in Canada lawfully. There are exceptions, such as diplomats and certain other categories of people, who enjoy legal status through their special employment and position.
In the fact scenarios below, I have set out a list of the situations where an immigrant who initially had lawful status in Canada then became illegal:
1. Beth is from Jamaica and comes to Canada on a visitor visa, which is valid for 3 months and expires on May 1, 2018. She does not apply for an extension of her visa prior to its expiry, and she is outside the 90-day time limit from the date of expiry of her visa to apply for the restoration of her visitor visa. She continues to live in Canada. She has become an overstayer and is an illegal immigrant. However, if she does not come to the attention of the immigration police, known as the Canada Border Services Agency, (the CBSA) she can continue to live here. But she is still illegal.
2. Sanchez is from Mexico. He flees from that country as he is being persecuted and makes a refugee claim at the Canadian border. He has a hearing at the Refugee Protection Division (RPD) and his refugee claim is denied. CBSA issues a removal order against him. He changes his address, so the CBSA cannot locate him. He goes into hiding. Like Beth, if Sanchez does not come to the attention of the CBSA, he will continue to live here illegally.
3. Dilip is from India. He is here on a student permit. He is studying at a college in Toronto, but he cannot continue studying as his father back in India has had a heart attack and became disabled. So, Dad can no longer send money to Dilip to enable the boy to continue his studies. Dilip says to himself, “to hell with it all. I’m going to leave this damn college and get a job for cash to help my dad.” Dilip does not renew his student permit when it expires and disappears underground! He is now an illegal immigrant.
4. Ivor is from Hungary. He was able to secure a validated offer of employment, working in a manufacturing company in Burnaby, British Columbia. He started work in the company in the summer of 2017. Since he started work there, he has received a lot of abuse from fellow employees because he has a bad stutter and an artificial leg. He tolerated this as much as he could and, now, he has reached a crisis point and decides to leave the job. A few weeks later, his work permit expires, and he does not renew it. He is now comfortable, working illegally but on his own in an office in a small family bookkeeping company where everyone is kind and understanding about his disability. He has become one of the hundreds of thousands of illegal immigrants in Canada!
5. Kenny is from St. Lucia. He arrived in Canada in 2003 when he was 10 years old with his siblings and parents. By the time he was 15 in 2008, through his involvement with a gang of teen drug dealers in his school, he ends up in trouble with the police. Between 2008 and 2012, he accumulated two convictions for drug related offences including several breaches of bail and failing to appear in court. At the beginning of 2015, he was ordered deported but successfully stayed the deportation order to the Immigration Appeal Division (IAD) of the Immigration and Refugee Board. (IRB) He received a 5 year stay until 2020, but in September 2015, he was involved with his old friends with a serious and large-scale cocaine drug trafficking operation. Due to his failure to appear in court, criminal bail he received was revoked and he spent eighteen months in jail. He was convicted of one of the drug trafficking offences at the beginning of March 2017. A charge of conspiracy against him was withdrawn as the crown had no evidence that he was involved in an organized criminal enterprise. He was released a week later due to the time he had spent in pre-trial custody. The CBSA arrested him as soon as he was released and at the end of March 2017, he was ordered deported by the Immigration Division (ID) for serious criminality with no right of appeal to the IAD. His permanent residency in Canada was revoked due to his serious criminal inadmissibility. He is now illegal in Canada.
The above examples represent the many fact situations that can lead to an immigrant becoming illegal in Canada. The problem is that it takes just one phone call to the police and/or the CBSA for the immigrant to face severe difficulties including deportation. Let us see how the immigrant’s exposure to arrest by the CBSA can occur:
Beth’s neighbour has an argument with her. Out of vengeance, the neighbour calls the CBSA, telling them that Beth is an illegal immigrant. Prior to this argument, Beth was on good terms with the neighbour and told her that she was illegal in Canada.
Sanchez forms a relationship with a Canadian girl but does not know the girl is married and having an affair with him. The girl’s husband discovers the adultery, and Sanchez and the husband are involved in a fight. The husband calls the police and alleges that Sanchez assaulted him. Once the police become involved, they do a CPIC check and realize that Sanchez is illegal here. The police call the CBSA.
Dilip drives to his girlfriend’s home in Oshawa. He decides to drive fast as he is late for the date. He is stopped by the police for speeding. The police check CPIC and realize he is illegal. They call the CBSA.
One of Ivor’s former co-workers who hated Ivor when he worked at the factory, walks into a bookkeeping business to do his taxes. He notices Ivor in the back room. He calls the CBSA and then there is Ivor’s inevitable arrest.
Although these illegal immigrants believe they are safe from the prying eyes of the police and the CBSA, it takes just one incident out of many as in the examples above for the immigrant to come to the attention of the authorities and face deportation.
Those illegal immigrants, who are fortunate enough not to come to the attention of the CBSA, live here for years. In that time, slowly but surely, they build roots and ties in Canada. All of them want to have a stable and trouble-free life here. This is their country, but they are illegal. Every day is a nightmare. Will something happen today that will cause the CBSA to knock on their door? This is a recurring thought. How can they cure their illegality? The whole of this handbook is about the steps they can take to make themselves legal in Canada, and this is through an application on humanitarian and compassionate (hereinafter referred to as ‘H&C’) grounds for permanent residence.