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Immigration and Refugee Law Exam Review.doc

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Social Science
SSCI 2011U

1 Immigration and Refugee Law Midterm Exam Review Theoretical framework: main points from the writings by Michael Walzer - Communitarian o Paramountcy of the interests of the host community o Need to preserve the nature of the host community o Selection of potential immigrants who are culturally and ideologically close to ‘us’ o Limited exception for refugees o We admit people based on who shares the same values o States as clubs  Admission is selective  Club members define criteria for admission of future members  No one on the outside has a right to be inside o States as neighbourhoods  random associations  No control on entry/exit  Market controls movement (ability to find a job, place to live)  remain open only as long as state borders are relatively closed  Gated communities in the US? o States as families  Moral obligation to admit relatives  Kinship principle - Critique of liberal and communitarian perspectives - Law and economics - Post-national membership 2 Joseph Carens - Liberal o Equal moral worth of individuals o ‘veil of ignorance’ (John Rawls) o Borders should be generally open o Few grounds on which immigration may be restricted (only for reasons of public order) o We are all humans and therefore have equal rights doesn’t matter where you are born o we can impose restrictions when it is only necessary o You didn’t know where you would be born- you would favour migration or want to protect your land o We value equality WITHIN Canada but we are discriminatory Legislative framework Power over immigration, naturalization, aliens (which level of government has jurisdiction over these matters?) - Constitutional Framework o Constitution Act, 1867:  s. 95 – concurrent federal/provincial power over immigration  Paramountcy doctrine (with respect to s. 95)  S. 91(25) – federal power over naturalization & aliens *Provinces want more power like Quebec - Immigration and Refugee Protection Act (IRPA) o General terms and rules for governing the admission, terms of residence, removal and status of non-citizens. - Immigration and Refugee Protection Regulations (Regulations) o Content of immigration law - Citizenship Act - Federal-Provincial Agreements on Immigration – s. 8 of the IRPA 3 o Provincial nominee programs in 9 provinces, Yukon and Northwest Territories have power to develop their own selection criteria and nominate individuals for immigration) o Canada-Quebec Accord – Quebec selects its immigrants subject only to federal health, security and criminality checks Immigration statuses (citizen, permanent resident, etc.) and rights that they confer on individuals - The Charter: o S. 6 – absolute right of citizens to enter and remain in Canada o S. 7 – right to life, liberty & security of person o S. 12 – prohibition of cruel and unusual treatment or punishment o S. 15 – equality *3 (democratic) – 6 (mobility) rights apply only to Canadians - Permanent residence o Have most socio-economic rights enjoyed by citizens (some restrictions may apply) o No right to vote or stand in elections o Conditional right of entry and residence Rules of acquisition of citizenship (by birth, by descent, by naturalization) - Acquiring citizenship: o jus soli (by birth)- as long as you were born in Canada, parents status doesn’t matter  Bill C-37 (pg. 29) o Only for first generation o jus sanguinis (by descent) o naturalization  immigrants who are 18 or older who later wants citizenship  reside as a permanent resident in Canada for at least 3 years in a 4-year period preceding the application 4  have adequate knowledge of Canada, of citizens’ rights and responsibilities and of one of the official languages  not be under a removal order or the subject of a declaration that he/she is a threat to the security of Canada or is a part of organized crime  Loss of citizenship • misrepresentation, fraud, concealment of material information  residence • physical presence in Canada • shelter and connections in society • federal courts look at previous cases, every judge is different, but both ways are valid o New language rules  As of November 1, 2012, applicants must provide upfront objective evidence of language proficiency: • the results of a CIC-approved third-party test; OR • the evidence of completion of secondary or post- secondary education in English or French; OR • the evidence of achieving the appropriate language level in certain government-funded language training programs 3 main immigration streams - Economic (skilled workers, Canadian Experience Class, investors, entrepreneurs, self-employed, provincial/territorial nominees; live in caregivers) - Family (spouse/common law partner; parents; children, etc.) - Refugee (inland refugee determination; resettlement from overseas) Residency obligation - For permanent residents o 730 days within every 5-year period Types of temporary residents 5 - Visitors (may need to obtain a visa) - Students (need a student permit) - Temporary workers (need a work permit) - Undocumented migrants – persons who are not in possession of a required visa or permit - Asylum-seeker or refugee claimant – a person who has applied for refugee protection in Canada, but has not obtained that protection yet (the decision has not been made yet) - Refugee – a person who has obtained refugee protection Inadmissibility Grounds of inadmissibility (you need to be able to list all 10 grounds and explain in 1-2 sentences what they mean; with respect to criminality and serious criminality, you only need to: (a) outline that they generally cover convictions inside and outside of Canada as well as acts committed abroad that constitute a crime where they were committed and under Canadian law (b) note that serious criminality inadmissibility is based on more serious crimes (usually indictable offence punishable by at least 10 years of imprisonment) - Health * apply only to foreign nationals o s. 38 of the IRPA o danger to public health or safety o can cause excessive demand on healthcare or social services o does not apply to protected persons, resettled refugees, spouses, common-law partners and dependent children of Canadian sponsors under the family class - Financial * s. 39 o inadmissible unable or unwilling to support himself/herself or dependents - Inadmissible family member * s. 42 o if the applicant’s dependent child is inadmissible on health grounds, the applicant may be inadmissible, too) - Criminality * 36(2) 6 o Convicted in Canada of an offence punishable by way of indictment or for 2 offences not arising out of a single occurrence o convicted outside Canada of an offence that if committed in Canada would be indictable in Canada or 2 offences not arising out of a single occurrence that would be offences in Canada o committing an act outside Canada that is an offence there and amounts to an indictable offence in Canada o committing, on entering Canada, an offence under the Act of Parliament prescribed by Regulations o how is crime classified in Canada - Serious criminality **36 (1) o s. 36(1) of the IRPA o permanent resident or foreign national o conviction in Canada of an offence punishable by a max term of at least 10 years or for which more than 6 months of imprisonment was imposed o conviction outside Canada which in Canada would be punishable by a max term of at least 10 years o committing an act outside Canada that is an offence there and if committed in Canada would be punishable by at least 10 years - Organized criminality ** applies to permanent resident and foreign nationals o S. 37 - Security ** s. 34 o Engaging in espionage, terrorism, subversion against a democratic government, institution, or process o Engaging in acts of violence o Membership is enough in itself- don’t actually have to be involved - Violation of human & international rights ** s. 35 o committing acts of genocide, war crimes or crimes against humanity outside Canada 7 o being a senior official in a government that engages or has engaged in terrorism, systematic or gross human rights violations, genocide, war crimes or crimes against humanity - Misrepresentation ** s. 40 o an individual directly or indirectly misrepresented or withheld material facts that induce or could induce an error in the administration of the IRPA - Non-compliance with the IRPA ** s. 41 Cconsequences of inadmissibility for foreign nationals and for permanent residents; - - If they’re found admissible they will be deported back to their home country. Excessive demand on health services – would a person who is able and willing to cover the costs of health services still be inadmissible? (See Deol case) - Yes, they will still be inadmissible. You cannot offer to pay for your own health care - HOWEVER you can offer to pay for social services ex. School - Deol Case o Deol was a permanent resident since 1991 o In June 1993, she submitted an undertaking of assistance to sponsor the admission to Canada of her father, mother, sister and two brothers, who currently live in India. o Refused permanent residence visas because Mr. Ranjit Singh, the principal visa applicant and Ms. Deol's father, was found to be medically inadmissible- excessive demands on health care services from necessary surgery o Judge finally found that the refusal to issue a visa on the ground of medical inadmissibility did not infringe the appellant's right to equality and, if it did, it was saved by section 1 as a reasonable limitation. Excessive demand on social services - would a person who is able and willing to cover the costs of social services still be inadmissible? (see Hilewitz case) - Applicants under the ‘investor’ category with a disabled child - In evaluating ‘excessive demand’ on social services consider medical and non-medical factors; ability and willingness to pay are relevant factors 8 - What about
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