A Brief Overview of Canadian Immigration Law - LawNow Magazine

A Brief Overview of Canadian Immigration Law

Immigration law in Canada can seem daunting and confusing to understand. It would certainly be difficult to condense all immigration-related concepts within a single article. This article serves as a basic overview to provide an understanding of common terms and immigration programs in Canada. It will address what immigration is and who deals with it, common terminology, and different programs available for immigration applicants.

What is immigration and who deals with it?

Generally speaking, immigration law addresses the rules and processes governing who can enter Canada, and who can stay in Canada. The legislation that outlines these processes and requirements is the Immigration and Refugee Protection Act. Other legislation and case law may be applicable depending on different situations, but immigration law is generally governed through this Act.

There are different pathways under economic immigration. They include the Express Entry pathways, such as the Federal Skilled Worker Program, Federal Skilled Trades Program, Canadian Experience Class, and Provincial Nominee Program.The administration and decision-making of immigration law is assigned to various entities, such as the Minister of Citizenship and Immigration, Immigration Officers, Citizenship and Immigration Canada, the Canada Border Services Agency, and the Immigration and Refugee Board. They each have different responsibilities in governing immigration, and it is through administrative law that Canadian courts hold these government bodies accountable. They ensure that the government bodies act within their authority outlined in legislation, which includes acting in a manner that is just and procedurally fair.

Common Terminology

When discussing immigration, there are some terms that are useful to know.

  • Immigrant: An immigrant is someone who moves from their country of origin to another. There is usually at least some intention for this move to become long-term or permanent. Many times, the individual might also come with the intention of becoming a permanent resident or citizen.
  • Citizen: A citizen is defined in the Citizenship Act, and is an individual who is afforded certain rights based on their status as a citizen. Generally speaking, becoming a citizen can be achieved either by birth or through naturalization. Certain rights of citizens include the ability to enter, remain in, and leave Canada.
  • Permanent Resident: A permanent resident is also afforded rights based on their status as a permanent resident, and is defined in the Immigration and Refugee Protection Act. A permanent resident is someone who has been given permanent resident status by immigrating to Canada, but is not a Canadian citizen. Permanent residents are citizens of other countries. Unlike Canadian citizens, permanent residents can be deported based on certain grounds.
  • Alien: Some statutes refer to an immigrant or any individual who comes from a foreign nation as an alien. For example, it is referred to in the Constitution Act, 1867 under Section 91(25), which is the section that provides Parliament with powers regarding immigration. However, in an everyday context, the use of the term “alien” can be contentious and may be sometimes considered inappropriate.
  • Refugee: A refugee is a certain type of immigrant. They immigrate to another country due to a well-founded fear of being persecuted in their home country for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
  • Foreign National: A foreign national is any person who is neither a citizen nor a permanent resident of Canada.
  • Temporary Resident: A temporary resident is someone who is allowed to stay in Canada for a limited amount of time and for limited purposes. This can include temporary workers, students, and visitors.
  • Port of Entry: This is a prescribed place where a person may seek entry into Canada, such as airports, land or marine border crossings. Every person is subject to examination to determine whether that person is allowed to enter Canada. The examinations are usually done by the Canada Border Services Agency.
  • Irregular border crossing: An irregular border crossing occurs when an individual crosses the border at some place other than an official port of entry.
  • Visa: A visa is an endorsement from the government to show that an individual has met the requirements for admission to Canada as a temporary resident. The visa is placed in a person’s passport.
Some Entry Programs in Canada for Permanent Residency

A foreign national may qualify for permanent residency based on their relationship to a Canadian citizen or permanent resident. This applies to the Canadian citizen’s or permanent resident’s spouse, common-law partner, child, parent, or other allowed family members.There are numerous programs available for individuals wishing to enter Canada, depending on the purpose of entry and the circumstances of the applicant. If you are someone exploring this as an option, or you require legal advice on an immigration matter, it is always best to contact a lawyer about your personal circumstances.

The entry paths for permanent residency can be divided into three categories:

  • family reunification;
  • economic immigration; and
  • refugees

Family reunification

A foreign national may qualify for permanent residency based on their relationship to a Canadian citizen or permanent resident. This applies to the Canadian citizen’s or permanent resident’s spouse, common-law partner, child, parent, or other allowed family members.

This entry path looks at both the eligibility of the foreign national and also the eligibility of the family member who is a Canadian citizen or permanent resident, also known as their sponsor. The eligibility of the foreign national can be dependent on their relationship to their sponsor. The eligibility of the sponsor to bring their family member to Canada depends on different factors, including age, residence, and their willingness and ability to support the applicant.

Economic immigration

Permanent residents are citizens of other countries. Unlike Canadian citizens, permanent residents can be deported based on certain grounds.

A foreign national may qualify for permanent residency based on their ability to become economically established in Canada. The purpose of this entry path is to meet Canada’s economic and social needs for Canada’s benefit. Generally, the foreign national would be assessed depending on their professional background, education, and their impact on Canada’s economic and social needs.

There are different pathways under economic immigration. They include the Express Entry pathways, such as the Federal Skilled Worker Program, Federal Skilled Trades Program, Canadian Experience Class, and Provincial Nominee Program.

Refugees

There are numerous programs available for individuals wishing to enter Canada, depending on the purpose of entry and the circumstances of the applicant. A foreign national who is either inside or outside Canada may qualify for permanent residency based on their personal circumstances as a refugee. To qualify for this entry path, the government will consider humanitarian grounds among other factors.

Final Thoughts

Immigration issues, processes and requirements for immigration in Canada can get very complex. This article provides an overview of various immigration terms and programs in Canada. However, the best way to find a solution to an immigration issue you may personally be facing is to contact a lawyer who specializes in Canadian immigration law.

Authors:

Christopher Gallard-Ganaban
Christopher Gallard-Ganaban is a student at the University of Alberta’s Faculty of Law and a member of Pro Bono Students Canada. Pro Bono Students Canada is a student organization. This document was prepared with the assistance of PBSC University of Alberta law student volunteers. PBSC students are not lawyers and they are not authorized to provide legal advice. This document contains general discussion of certain legal and related issues only. If you require legal advice, please consult with a lawyer.
 


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