By Guidy Mamann: A recent Federal Court case confirms that the immigration department is deliberately making it much more difficult for qualified immigrants who were deported from Canada to ever return here legally.
The department’s approach is intended to discourage illegal immigration and to foster greater respect for our immigration laws. However, this new approach will only achieve the exact opposite effect.
When a person is subject to a deportation order they can never return here unless they first obtain an Authorization to Return to Canada (“ARC”) in addition to obtaining whatever temporary or permanent visa they may require. It has been my experience that if a visa officer concludes that an applicant otherwise qualifies for an immigrant visa (i.e. they have the necessary points etc. to qualify for our skilled worker category) then an ARC would be issued so that the person can be landed.
In over 21 years of practice I can’t remember even a handful of individuals, if that, who qualified for permanent immigration but who were denied an ARC. Until just recently, I have never been asked by a visa officer for legal submissions to support a request for an ARC. Provided that the client pays the $400.00 government fee and provided that there is no criminal or medical inadmissibility issues involved, getting an ARC has always been fairly routine business.
Not anymore!
In January, CIC updated its ARC policy in its operational manual. The manual now informs our immigration officers that the ARC requirement “is intended to send a strong message” and should not be used as a “routine way” to overcome the bar to admission created by a removal order.
Now applicants bear the burden of persuading an immigration officer that “compelling or exceptional circumstances” exist to justify a recommendation for an ARC. A program manager, deputy program manager, or operations manager must then approve the officer’s recommendation.
This requirement will clearly make it much more difficult for those who were removed from Canada, whether they paid for their own removal or not, to ever return here either temporarily or permanently even if they otherwise meet all of the other requirements of our immigration laws.
In June, the Federal Court heard the case of Gurbhagwant and Preetkiran Khakh who came to Canada illegally in 2003 to make a refugee claim. Their claim did not lack credibility. It was simply refused because the IRB found that the couple could have sought refuge in other parts of India. While still in Canada, the Khakhs were nominated by Prince Edward Island for permanent residency under its Provincial Nominee Program. Although the Khakhs left Canada in March 2006 in compliance with their removal orders, their immigration application that had the backing of PEI was refused in May 2007 when the visa officer could not find any “compelling or exceptional” reasons to recommend an ARC.
It is clear that immigration lawyers and consultants must now inform their clients who are under removal orders that if they leave Canada there is a serious risk that they will never be allowed to return here even if they meet all of our immigration requirements.
No doubt, many will simply decide to take their chances here …underground.
One would think that foreigners in this situation would be given an incentive to go home and do things legally.
However, this ill-advised policy will undoubtedly have the exact opposite effect.
Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Law Society of Upper Canada as an immigration specialist. Reach him confidentially at 416-862-0000 or at .