Top ten legal issues facing workers in the live-in caregiver program

Transcription

1 Top ten legal issues facing workers in the live-in caregiver program By Deanna Okun-Nachoff For workers in the Live-in Caregiver Program (LCP) and the immigration practitioners who represent them, it is unequivocal that there are systemic shortcomings in the LCP policy. There is, however, substantial disagreement about how these systemic issues might be most effectively addressed and ameliorated. Two contradictory positions appear in Federal Court jurisprudence, parliamentary debate and other critical writings. On one hand, proponents for policy reform point to the discriminatory conditions that live-in caregivers face in Canada. On the other, there is still substantial support for the dubious proposition that caregivers are uniquely privileged in the Canadian immigration system, as they alone among unskilled workers are provided the opportunity to apply for Permanent Residence (PR) after completing two years of indentured labour. The purpose of this article is to enumerate and discuss some of the unique and challenging immigration problems facing workers in the LCP, and to substantiate the proposition that broadbased policy reform is vital to bring the LCP into alignment with Canada s constitutional and international law obligations. 1. Training To qualify for a work permit in the LCP, applicants must provide proof that they have completed the equivalent of Canadian secondary school, plus six months of vocational training (within the last three years), or one year of paid work experience (s.112 of the Regulations). With respect to the equivalency of secondary school education, high school education in the Philippines, the top source country for LCP workers, is not typically deemed sufficient to meet LCP education requirements. Applicants are routinely denied admission to the LCP without proof of two years post-secondary education. The case of Mascarenas v. Canada (Citizenship and Immigration Canada) [2001] F.C.J. No. 737 provides some guidance about assessing equivalency of secondary school education. The vocational training component poses additional problems for applicants in the LCP. Many accredited training schools (both in Canada and abroad) fall far short of the standards set by the local visa office. The most common shortcomings of the LCP training courses are listed below: duration of courses offered: section 5.4 of Overseas Processing Manual 14 stipulates that the in classroom component of LCP training courses must span six months, exclusive of practicum or on-the-job training. Many programs offer just five months in the classroom, plus practicum or on-the-job training, and this is typically deemed insufficient; part-time courses: applicants who study less than hours per week, or who undertake their studies on a part-time basis in the evenings or on weekends will generally be required to undertake additional training, unless they have relevant work experience; overtraining: many LCP training schools erroneously advise applicants that completion of the training course is required to qualify for the LCP, even if the applicant is fully qualified, having completed a nursing program or worked as a caregiver or early childhood educator. Inside Immigration, March 2009 CBA National Citizenship and Immigration Law Section Page 1

2 One note about work experience: where live-in caregivers intend to rely on work experience to qualify for the LCP, they must demonstrate that they were paid for that work. As such, experience raising one s own children will not suffice. 2. Recruitment In addition to the training and education requirements, successful applicants in the LCP must prove that they have a bona fide job offer in Canada. This poses a unique challenge for live-in caregivers, particularly those who apply to enter Canada from Manila or New Delhi, where LCP processing times can exceed two years, and where a perfunctory refusal on tenuous grounds will likely put that applicant back at the end of the long queue. A growing number of highly unscrupulous recruitment agencies have arisen over the years. Many of these agencies charge astronomical fees, contrary to provincial employment legislation in several Canadian provinces (former clients have reported fees exceeding Cdn$20,000). Regrettably, many of the provincial employment standards regimes set out an extremely short limitation period for complaints (just six months in British Columbia), which effectively bars many caregivers from obtaining reimbursement. Given the exceedingly long processing times facing LCP applicants outside Canada, many workers arrive in Canada to find that their job offer has been terminated. Port of entry officials have begun routinely calling LCP employers when the worker arrives at the airport. In cases where the employer advises that the job is no longer available, caregivers are being returned home on the next plane. In a limited number of situations where counsel has been retained by the caregiver at the port of entry, Temporary Resident Permits (TRPs) have been issued. In recent months, a number of immigration officers have also started to refuse inland work permit renewal applications where they have evidence that caregivers did not work for their initial employer. In one case, the officer alleged that the caregiver had misrepresented her status on entry to Canada, since the job offer did not actually exist on the date of entry. Where credible evidence can be produced that the worker had no prior knowledge of the employer s intention to dismiss, it may be possible to overturn a refusal made on this basis, either on judicial review, or by sending a new work permit application with detailed submissions on this point. 3. Entering the LCP To avoid the lengthy processing delays at visa offices outside Canada, many caregivers apply to enter the LCP at the port of entry to Canada. As an immigration practitioner, particular care should be taken when advising LCP workers from a visa exempt country, or those who initially entered Canada on a student permit and then later applied for an inland permit authorizing employment as a live-in caregiver. Section 112(a) of the Regulations stipulates that the initial LCP work permit application must be processed outside Canada. Although caregivers who apply at the port of entry may obtain a work permit that prescribes identical conditions to those imposed on other LCP workers, those workers will not typically be able to renew their permit inside Canada without a new LMO, and they will not qualify for landing in the live-in caregiver class, even if they complete 24 months of authorized employment within three years of their arrival in Canada (s.113(1)(d) of the Regulations). The Federal Court decision in Enriquez v. Canada (Minister of Citizenship and Immigration) 2004 FC 1044 speaks to this point. Inside Immigration, March 2009 CBA National Citizenship and Immigration Law Section Page 2

3 4. Unauthorized Employment Many caregivers who seek to change employers in Canada feel compelled to engage in unauthorized work while their application is being processed for fear that they will lose the job offer if they refuse to start immediately. This problem has particular prevalence in the LCP, as caregivers rely on their employers to provide accommodation, and therefore lack stable accommodation while they are out of work. It has been my practice to proactively disclose all periods of unauthorized, relying on s.200(3)(e) of the Regulations to support the proposition that a work permit renewal cannot be refused where: (i) the unauthorized work occurred more than six months prior, and/or (ii) the work was unauthorized only to the extend that it was carried out for a different employer than authorized. I recommend that caregivers in this position pay a restoration fee of $200 with their application (in addition to the regular processing fee), to ensure that they will be issued a new work permit even if the officer finds a violation of s.41 of the Act. Section 182 makes it clear that restoration is allowed even where unauthorized work has occurred. 5. Employment Abuses The prevalence of employee abuse in the LCP is widely acknowledged, and has even been recognized by the UN Committee on the Elimination of Discrimination Against Women ( In my own practice, the number and severity of abuses reported by caregivers is simply astonishing. The most common issues reported to me are as follows: non-payment of regular and overtime wages; unsuitable accommodation (several former clients slept in their employers closet or in their laundry room); onerous job duties, or job duties outside the scope of the employment contract (e.g. heavy gardening, car washing, cleaning the homes of relatives or friends, assisting in a family business, or round-the-clock care for the children of absentee employers); failure by the employer to provide adequate or appropriate food; verbal and physical (including sexual) abuse. While these issues may arise in any employer-employee relationship, the prevalence among LCP workers can be explained in part by the fact that LCP workers are employed in an extremely isolated work setting, and therefore frequently lack any social network or other resources. Moreover, LCP workers are far more likely to endure exploitation as they must complete two years of authorized employment before they can apply to sponsor their family overseas. Many workers report a willingness to make sacrifices in order to reach this goal in the most expedient manner. 6. Proving Completion of 24 Months Authorized Employment When LCP workers send their application for PR in the live-in caregiver class, they are asked to provide the following proof that they can comply with s.113 of the Regulations (as shown in the live-in caregiver class document checklist, IMM-5282): Letter from your current employer showing start date and that you still work for them AND Inside Immigration, March 2009 CBA National Citizenship and Immigration Law Section Page 3

4 Statement of earnings showing hours worked and deductions made by the employer(s) AND Record of wages and deductions sent to Canada Revenue Agency (CRA) by your employer(s) AND Record of Employment (ROE) for all previous employer AND Option C Printout from your date of entry into the Live-in Caregiver Program With the exception of the Option C Printout, each of these documents must be provided by the caregivers employers. Again, this puts live-in caregivers at the mercy of their Canadian employer(s). For LCP workers employed by abusive or even uncooperative employers (employers who may not wish to see the worker landed and emancipated), or for caregivers who have been dismissed by a former employer for cause, it can be extremely challenging to obtain all the documents requested. Even the most supportive employers are frequently unwilling to provide a record of the wages they have sent to the CRA. As there are few legal tools at a workers disposal to compel employer(s) to provide the documentation required, caregivers often find themselves without any viable means to procure all the documents that they need to support their application for PR. 7. Unable to Complete 24 Months of Authorized Employment Within Three Years Another classic problem facing workers in the LCP arises when workers have been unable to accumulate 24 months of authorized employment within three years of their arrival in Canada. Unlike immigrants in the Canadian Experience Class, workers in the LCP must complete the work requirements within the first three years of their arrival in Canada, otherwise they will be unable to qualify for landing in the live-in caregiver class, and could be compelled to start the entire program afresh. There are a variety of reasons why LCP workers are often unable to complete the work requirements: the worker has worked for an employer during long trips outside Canada, unaware that the time spent working outside Canada does not count toward completion of the LCP (per s.113(1)(d) of the Regulations and s.9.5 of the Inland Processing Manual for Live-in Caregivers (IP4)); LCP workers employed in the elderly care field are often laid off when their employers are put into long-term care or pass away. Similarly, childcare workers are frequently laid off when children enter full-time school; before HRSDC and CIC reduced LMO and work permit processing times, LCP workers were routinely unemployed for more than three months at a time while waiting for authorization to change employers. There are several strategies that can be employed on behalf of LCP workers who are unable to establish that they have been employed for 24 months prior to their third anniversary in Canada. First, for workers who are within weeks of the required work target, it is advisable to argue (if applicable) that all unutilized annual vacation time should be counted as a period of authorized Inside Immigration, March 2009 CBA National Citizenship and Immigration Law Section Page 4

5 employment. In these cases, it is helpful to produce evidence that unused vacation time was paid out on termination of employment. It is also helpful to refer to section 9.5 of the Inland Processing Manual for Live-in Caregivers (IP4), which states that caregivers are entitled to claim allowable vacation leave (as defined in provincial and territorial employment standards legislation) toward completion of the LCP. If the worker has clearly failed to complete 24 months of authorized employment, I generally advise the worker to apply for a new LCP permit from a visa office outside Canada, to restart the three year period and secure a second opportunity to complete the work requirements in the LCP. If the workers is able to secure a US visa, this re-entry process can often be completed within a matter of weeks. Once the worker returns to Canada from re-entry, I provide the option to advance a Humanitarian and Compassionate ( H&C ) application for landing. In these H&C applications, I carefully demonstrate the way in which processing delays (at HRSDC and CIC) effectively prevented the worker from qualifying in the live-in caregiver class, and launch procedural fairness arguments. Given the long processing times for H&C applications, the worker may be near completion of the LCP on the second attempt before the H&C decision comes done, which opens up a viable route to PR even if the H&C application is ultimately refused. 8. Loss of Status I have observed a wide-spread understanding among LCP workers that an application for PR effectively extends one s status in Canada. Based on this belief, many caregivers accidentally lose status while in process for PR. Where workers lose status beyond the restoration period prescribed at s.182 of the Regulations, they become ineligible for landing in the live-in caregiver class. While it might be possible to secure a TRP for the out-of-status work, this will not typically allow for acceptance in the live-in caregiver class, as the Regulations clearly stipulate that live-in caregiver class applicants must be in possession of a work permit as a live-in caregiver (s.113(1)(c) of the Regulations) to allow approval of their live-in caregiver class application for landing. As such, it is generally necessary to re-enter the applicant into the LCP, from a visa office outside Canada, otherwise the PR application can only be approved on H&C grounds. If there are no viable means to re-enter the LCP, I recommend a TRP application, followed by a reentry application to perfect the live-in caregiver class application for PR. There are also many cases involving caregivers who lose status due to the negligence of an immigration consultant or employment agency, or even due to misinformation provided by an immigration call centre agent. In these cases, I take every step to expediently obtain a TRP and then re-enter the workers in the LCP, so that they are still able to qualify for landing in the live-in caregiver class within three years of their initial entry to Canada. I can see no legal basis for immigration for refusal of a live-in caregiver class application, even where the worker has lost and then reinstated his/her status, provided that the worker has complete 24 months of authorized work within three years of his/her initial entry to Canada. 9. Implied Status Section 186(u) of the Regulations establishes that temporary workers in Canada have implied status to remain in Canada after their work permit expires, provided that they make a renewal application prior to the expiration date on that permit, and further provided that they have Inside Immigration, March 2009 CBA National Citizenship and Immigration Law Section Page 5

6 continuously complied with all other conditions set out in their expired permit. If that renewal application is ultimately refused, the worker loses status on the date of refusal. LCP workers are frequently advised by the immigration call centre to file an application for open permit (s.207(a) of the Regulations) at the same time as their application for PR. While this is technically possible, the down side for caregivers whose LCP permits expire during the lengthy processing of the PR application is that they may linger on implied status for a prolonged period of time. Without any proof of status in Canada, live-in caregivers in some provinces (including British Columbia and Ontario) may be unable to renew their provincial health policy. Moreover, several employers are reluctant to offer employment to a worker who is unable to produce proof of lawful status in Canada. And, finally, it is generally the policy of Service Canada to refuse a SIN card renewal during periods of implied status. For the reasons I have described, it may be preferable for live-in caregivers to renew their LCP permits if they are due to expire during the processing of their PR. Also, keep in mind that a caregiver who wishes to extend an contract beyond the initial three years in the LCP, the employer must obtain a new LMO with each renewal. 10. Medical Inadmissibility Caregivers seeking to enter Canada in the LCP must pass medical screening pursuant to s.30(1)(b) of the Regulations. At the time of entry to the LCP, family members are not examined, because they are not generally entitled to accompany the caregiver to Canada at the time of entry (Section 3, Operational Bulletin 025). However, when the workers apply for PR, they and all their family members are required to pass medical screening (s.30(1)(a) of the Act). In effect, caregivers do not receive a definitive answer regarding their medical admissibility to Canada until after they have been living and working in Canada for as many as six years (taking into account long processing delays for members of the live-in caregiver class). For those who develop a serious medical condition on Canadian soil, or for those who discover that they have a medically inadmissibility dependent during PR processing, the legal consequences of refusal are extremely harsh. In the case of Voluntad v. Canada (Minister of Citizenship and Immigration Canada) 2008 FC 1361, my argument about the discriminatory impact of the double medical on live-in caregivers was summarily dismissed. From my perspective, live-in caregivers should like members of the family class be exempt from the good health requirement on their application for landing, because of the disproportionate impact of a late-stage refusal. Unless and until this recommendation is adopted by policy makers, caregivers are left in the unenviable position that they may be forced to leave Canada unless they can disprove the excess demand allegation, or effectively plead their case on H&C grounds. In a limited number of cases (most often accepted in cases involving inadmissible dependents), a TRP may be issued to overcome the medical inadmissibility. However, this will further forestall regularization of status until the worker qualifies for landing (three years later) in the Permit Holder s Class (s.65(b)(i) of the Regulations). Vancouver lawyer Deanna Okun-Nachoff can be contacted by at deanna@wcdwa.ca, or by phone at Inside Immigration, March 2009 CBA National Citizenship and Immigration Law Section Page 6