Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2018-26

Canada Gazette, Part II: Volume 152, Number 5

Registration

February 16, 2018

IMMIGRATION AND REFUGEE PROTECTION ACT

P.C. 2018-147 February 15, 2018

Whereas, pursuant to subsection 5(2)^{footnote a} of the Immigration and Refugee Protection Act^{footnote b}, the Minister of Citizenship and Immigration has caused a copy of the proposed Regulations Amending the Immigration and Refugee Protection Regulations, substantially in the annexed form, to be laid before each House of Parliament;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration and the Treasury Board, pursuant to subsection 5(1) and sections 32^{footnote c} and 89.2^{footnote d} of the Immigration and Refugee Protection Act^{footnote b} makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Regulations Amending the Immigration and Refugee Protection Regulations

Amendments

1 The portion of clause 200(1)(c)(ii.1)(B) of the Immigration and Refugee Protection Regulations^{Footnote 1} before subclause (I) is replaced by the following:

• (B) that the employer, except an employer referred to in any of paragraphs 209.91(a) to (d),

2 The portion of section 204 of the Regulations before paragraph (b) is replaced by the following:

International agreements or arrangements

204 A work permit may be issued under section 200 to a foreign national who intends to perform work under

• (a) an agreement or arrangement between Canada and the government of a foreign state or an international organization, other than an agreement or arrangement concerning seasonal agricultural workers;
  

3 The Regulations are amended by adding the following after section 209.9:

Exemption from certain conditions

209.91 The following employers are exempt from the application of sections 209.11 and 209.2:

• (a) the government of a foreign state that makes an offer of employment to a foreign national in respect of the performance of duties as an official of that state;
• (b) the office of a political subdivision of a foreign state that enjoys privileges and immunities granted under subsection 6(1) of the Foreign Missions and International Organizations Act;
• (c) a foreign diplomatic mission or consular post referred to in Part I of the Foreign Missions and International Organizations Act or an international organization or accredited mission as defined in subsection 2(1) of that Act; and
• (d) the owner or operator of an international bridge or tunnel, as defined in section 2 of the International Bridges and Tunnels Act.
  

4 Section 303.1 of the Regulations is amended by adding the following after subsection (4):

Exception

(4.1) An employer who is exempt from the application of sections 209.11 and 209.2 under section 209.91 is not required to pay the fee referred to in subsection (1).

Coming into Force

February 27, 2018

5 These Regulations come into force on February 27, 2018.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

In February 2015, Immigration, Refugees and Citizenship Canada (the Department) introduced regulatory amendments to enhance employer compliance verification under the International Mobility Program (IMP). Pursuant to these amendments, employers in Canada must submit offer of employment information and pay a $230 compliance fee when making an offer of employment to temporary foreign workers under the IMP. They must also comply with program conditions and inspections, should any be conducted.

However, for legal and diplomatic reasons, the Government of Canada would face significant limitations in its ability to inspect employers that are foreign diplomatic missions, international organizations in Canada, foreign governments, and international bridge and tunnel authorities.

Specifically, pursuant to the Foreign Missions and International Organizations Act (FMIOA) and orders passed under it, foreign missions and international organizations in Canada enjoy privileges and immunities, including inviolability of their premises and of their documents and archives. Therefore, while the Department could request that foreign missions participate in the investigation in the event that there were concerns regarding the treatment of their staff hired under the IMP, the foreign missions cannot be compelled to do so. Furthermore, in cases where these entities have violated the conditions of the IMP, the application of monetary sanctions would be incompatible with the immunities set out in the FMIOA and orders passed under it. Consequently, the Government of Canada’s capacity to verify compliance, conduct inspections and impose monetary or administrative penalties is significantly limited.

Global Affairs Canada and the Canada Border Services Agency (CBSA) have also raised concerns with respect to how the February 2015 regulatory requirements are being viewed by foreign governments employing foreign nationals in Canada outside of diplomatic missions. Diplomatic privileges and immunities do not apply under such circumstances, but should the Department conduct inspections and impose penalties in cases of non-compliance with respect to these foreign governments, it could create irritants that could impact Canada’s bilateral relations.

Concerns have also been expressed by the Peace Bridge Authority, an international compact authority created by the American and Canadian governments. The Peace Bridge Authority manages the international crossing between Fort Erie and Buffalo and has approximately 50 U.S. employees performing toll and administrative functions on the Canadian side of the border, where they were moved at the request of the Canadian government to improve border crossing efficiency. Other international bridge or tunnel authorities may also employ U.S. citizens and permanent residents to perform a range of functions in Canada. Applying the employer compliance provisions with respect to these entities would be an unnecessary irritant to Canada’s relationship with the United States and to cross-border movement.

In addition to these issues, the wording of the Immigration and Refugee Protection Regulations (the Regulations) needs to be adjusted to better reflect how Canada fulfills its foreign policy commitments and obligations with respect to the movement of foreign nationals under the IMP, a vital component of Canada’s global co-operation and engagement strategy. Paragraph 204(a) of the Regulations allows for the issuance of work permits under the IMP to foreign nationals who intend to perform work pursuant to international agreements to which Canada is a party. This provision is limited to cases where there is a legally binding treaty in force between Canada and one or more countries. However, Canada has policy commitments to support transnational labour mobility by facilitating the entry of foreign nationals under the terms of more flexible, non-binding international arrangements (e.g. Memoranda of Understanding) signed between Canada and foreign countries or international organizations. Paragraph 204(a) thus needs to be adjusted to allow for the issuance of work permits under the IMP to foreign nationals who intend to perform work pursuant to international arrangements to which Canada is a party.

Background

The Immigration and Refugee Protection Act and the Regulations allow foreign nationals to work temporarily in Canada, provided they meet all the applicable requirements. In most cases, foreign nationals must obtain a work permit to work. They can do so under two streams: the Temporary Foreign Worker Program (TFWP) and the IMP.

Under the TFWP, employers must first request a labour market assessment (commonly referred to as a Labour Market Impact Assessment or LMIA) from Employment and Social Development Canada (ESDC) to show, among other things, that the employment of the foreign national will have a positive or neutral impact on the Canadian labour market and that they have made efforts to hire Canadians and permanent residents before attempting to hire a foreign worker. The employer provides the LMIA to the foreign national who can then submit it to the Department, along with the work permit application.

Under the IMP, employers are not required to seek a labour market assessment before issuing an offer of employment to a foreign national in Canada, as the Immigration and Refugee Protection Act and the Regulations recognize that in certain circumstances, broader net benefits to Canada from the employment of a foreign national may outweigh the requirement for this assessment. Foreign nationals who may obtain a work permit under the IMP include workers covered under international or bilateral agreements, workers taking part in exchange programs, postgraduate students, employees transferred within a company, certain academics, co-op students, and charitable and religious workers, to name a few.

While the TFWP is jointly managed by ESDC and the Department, the IMP is managed by the Department alone. CBSA officers assess admissibility and, acting on behalf of the Department, make the final determination at ports of entry as to whether work permits can be issued for foreign nationals who have applied under the IMP or the TFWP.

In June 2014, the Government of Canada introduced reforms to strengthen the integrity of both programs through enhancements to the employer compliance framework. The aim was to improve employer compliance with the applicable TFWP and IMP requirements and conditions when employing foreign nationals with an employer-specific work permit. In this context, in February 2015, the Department introduced regulatory amendments to enhance employer compliance verification and enforcement activities under the IMP.

These new measures included the requirement for employers hiring under the IMP to pay a compliance fee of $230 and to submit employment information directly to the Department before the foreign national they wish to hire applies for a work permit. The fee offsets the costs of the compliance regime, notably the costs associated with conducting inspections to verify whether employers comply with program conditions. Moreover, the collection of offer of employment information facilitates the assessment of work permit applications and is used to assess employer compliance during inspections.

These inspections, which officers are authorized to conduct on the employers of foreign nationals with an employer-specific work permit under the IMP, are designed to ensure that workers benefit from well-regulated workplaces. Employers who have been found to have breached the conditions of the IMP may be subject to administrative monetary penalties and a temporary or permanent ban from employing foreign nationals for whom a work permit is required. These measures also support federal, provincial and territorial efforts to ensure that the same employment standards are provided to foreign workers as those provided to Canadian citizens and permanent residents.

Save for limited exemptions from the compliance fee (e.g. in respect of United States Customs and Border Protection preclearance officers posted to Canadian airports, where the compliance fee is waived but the other provisions of the IMP apply), the requirement to pay a compliance fee and to submit offer of employment information applies to all employers making an offer of employment to foreign nationals applying for an employer-specific IMP work permit. This includes foreign missions and international organizations employing non-accredited foreign nationals in Canada, and foreign governments in respect of non-mission staff. It also applies to international bridge and tunnel authorities employing U.S. citizens and permanent residents to work on the Canadian side of the border.

Most of the foreign nationals who would be affected by these regulatory amendments are issued a work permit under the IMP because their work yields significant benefits to Canada or provides reciprocal employment opportunities to Canadians abroad (e.g. interns working at diplomatic missions or international organizations in Canada, employees of the United States Internal Revenue Service coming temporarily to Canada to perform audits and conduct criminal investigations, U.S. employees of the Peace Bridge Authority working in toll booths on the Canadian side of the border), or because their work is facilitated pursuant to the terms of an international agreement (e.g. certain foreign nationals employed under the terms of certain scientific or technical co-operation agreements).

Gender-based analysis

The regulatory amendments are expected to affect a very small number of foreign nationals working in Canada under the IMP for foreign missions, international organizations, foreign governments, and bridge and tunnel authorities.

Due to the way in which information on work permit applications is captured in the Department’s visa processing system, it is not possible to precisely determine how many foreign nationals would be affected by these amendments. This is because they fall under an IMP subcategory of foreign nationals whose presence in Canada would provide significant economic, social or cultural benefits to the country; this subcategory also includes a broader array and a much higher number of individuals than the few individuals targeted by this proposal.

Nevertheless, based on the number of foreign missions, consulates, international organizations and international bridge and tunnel authorities located across Canada, and information obtained directly from some of these entities, it is roughly estimated that fewer than 300 persons will be affected by these amendments.

Data collected on all foreign nationals who came to work in Canada between 2011 and 2016 and captured under the IMP subcategory discussed above show that 69% of them were men, and 31% of them were women. Among these women, 62% were under the age of 35. Among the men, 50% were under the age of 35. Most of these foreign nationals were from the United States, the United Kingdom and France.

It has been documented that female temporary foreign workers are particularly vulnerable to abuse or mistreatment (e.g. not being paid the promised wages or benefits), especially when employed in low-skilled, low-wage positions. It is not clear, however, to what degree this vulnerability affects women employed under the IMP for the entities covered by these Regulations. The Department does not have any records of cases of concern in this very specific and limited context.

Objectives

1. The Regulations are amended to exempt the following entities, which benefit from the immunities and privileges set out in the FMIOA, from the IMP employer compliance regime, given the Department’s limited capacity to enforce the compliance provisions against them:
   • Foreign diplomatic missions or consular posts referred to in Part I of the FMIOA;
   • International organizations or accredited missions as defined in subsection 2(1) of the FMIOA; and
   • The office of political subdivisions of foreign states that enjoys privileges and immunities under subsection 6(1) of the FMIOA.
2. The Regulations are also amended to exempt the following entities (that are not covered by the FMIOA) from the IMP employer compliance regime, to avoid creating irritants that could impact Canada’s bilateral relations:
   • The government of a foreign state, if the employment offered to the foreign national relates to the performance of duties as an official of that state, such as officers of the United States Immigration and Naturalization Service or of the United States Customs and Border Protection carrying out pre-inspection duties in Canada (for greater clarity, this does not include governments of a political subdivision of a foreign state within the meaning of the State Immunity Act or state-owned enterprises); and
   • The owner or operator of an international bridge or tunnel as defined in section 2 of the International Bridges and Tunnels Act, such as the Buffalo and Fort Erie Public Bridge Authority.
3. Finally, paragraph 204(a) of the Regulations is amended to allow for the issuance of work permits under the IMP to foreign nationals who are entering Canada to perform work under the terms of an international agreement or arrangement between Canada and any foreign government, or between Canada and an international organization.

Description

These amendments to the Regulations will

• exempt the entities listed under numbers 1 and 2 in the “Objectives” section above from the following when hiring foreign nationals under the IMP:
  • The requirement to pay the $230 employer compliance fee, when they make an offer of employment to a foreign national who will be applying for an LMIA-exempt employer-specific work permit under the IMP (section 303.1), unless the employer is already exempt by the Regulations [e.g. an employer of U.S. border officers conducting preclearance duties at Canadian airports is currently exempt per subsection 303.1(5) and paragraph 299(2)(j)];
  • The requirement to provide the Department with offer of employment information when they make an offer of employment to a foreign national who will be applying for an employer-specific work permit under the IMP (section 209.11);
  • The conditions listed in the Regulations for employers of a foreign national who holds an LMIA-exempt employer-specific work permit under the IMP (section 209.2), including, but not limited to, the requirements for the employer
    • — to be actively engaged in the business in respect of which the offer of employment was made,
    • — to comply with the federal and provincial laws that regulate employment, and the recruiting of employees, in the province in which the foreign national works,
    • — to provide the foreign national with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that are substantially the same as — but not less favourable than — those set out in that offer, and
    • — to make reasonable efforts to provide a workplace that is free of abuse;
• provide that an officer is not to assess whether during the previous six years an entity listed under numbers 1 or 2 of the “Objectives” section above provided each foreign national employed by the entity with the wages, occupation or work conditions set out in the foreign national’s offer of employment;
• as a result of these amendments, the entities listed under numbers 1 and 2 of the “Objectives” section above will not be subject to the IMP employer compliance regime, including
  • inspections (sections 209.4, 209.5, 209.6, 209.7 and 209.8),
  • the consequences described in the Regulations for violation of the conditions listed in section 209.2, i.e. monetary penalties, warnings and/or a temporary or permanent ban on being able to hire foreign nationals under the IMP (section 209.95), and
  • the listing of employer names on one or more Government of Canada websites for failure to satisfy the criteria in subsection 200(1)(c)(ii.1)(B)(1) [subsections 203(5) and 203(6)];
• provide regulatory authority for the issuance of work permits under the IMP for work undertaken pursuant to an international agreement or arrangement between Canada and any foreign government or between Canada and an international organization [paragraph 204(a)].

The amendments come into force on February 27, 2018.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments, since there is no net increase in administrative costs to business.

Small business lens

The small business lens does not apply to these amendments, as there are no costs to small business.

Consultation

Discussions were held with representatives of foreign missions, international organizations, and bridge and tunnel authorities after the February 2015 amendments came into effect, as these stakeholders realized that the amendments had an impact on some of the foreign workers they wished to hire (specifically, the foreign workers were unable to obtain work permits unless the employers paid the compliance fee and submitted offer of employment information to the Department).

The Department also consulted extensively with other government departments whose work was affected by the February amendments. Global Affairs Canada, whose officials received complaints from diplomatic missions and international organizations in Canada, and CBSA, whose officers issue IMP work permits at ports of entry pursuant to the Department’s instructions, are supportive of the regulatory amendments given that they will address bilateral irritants expressed by key stakeholders.

Prepublication

These Regulations were prepublished in the Canada Gazette and open for public comments between September 29, 2017, and October 31, 2017. Only one stakeholder contacted the Department, indicating that they had no concerns with the proposal. Therefore, no changes to these regulatory amendments have been made following the prepublication period.

Rationale

Aligning the Regulations with immunity-related provisions under the Foreign Missions and International Organizations Act and orders passed under it

Although foreign missions and international organizations are required to respect Canadian law, the immunity from civil and administrative processes granted by the FMIOA and orders passed under it provides that the foreign entities may not be subjected to the jurisdiction of domestic courts and tribunals or to the authority of government officials administering programs such as the IMP.

For instance, the Department cannot compel entities covered by the FMIOA or an order passed under it to provide employment information once a foreign national has been issued a work permit. These entities can also refuse Department officials access to their diplomatic premises for inspection purposes. In the event that an entity decided to cooperate with an inspection and was found non-compliant, the Department will not be able to impose administrative monetary penalties. This significantly limits the Department’s capacity to adequately monitor or enforce compliance. In light of the immunity-related provisions of the FMIOA and orders passed under it, regulatory amendments are made in order to align the Regulations with this Act.

Maintaining mutually beneficial international relations

Regarding foreign governments and international organizations that employ foreign nationals outside of their diplomatic premises, as well as international bridge and tunnel authorities, compliance activities such as inspection and the imposition of administrative penalties would likely have bilateral implications. Maintaining good bilateral relationships contributes to the preservation of efficient cross-border movement and trade, thereby benefiting the Canadian economy. The new Regulations will ensure that the compliance regime does not impede Canada’s efforts to maintain good diplomatic and bilateral relationships.

It is not the intention of the Government of Canada to approve or disregard cases of mistreatment, whether the employers benefit from immunity through the FMIOA or not. Rather, in the event that there were concerns with the treatment of foreign nationals employed by any of these entities, the Government of Canada would seek resolution in accordance with existing protocols pertaining to diplomatic relations, framing its concerns in terms of the potential violation of provincial employment law or federal criminal law, as applicable.

Limited costs and other impacts

These regulatory amendments are cost neutral. While the Department will no longer collect the $230 employer compliance fee from the entities covered by these amendments, it will also not conduct compliance verification activities against them.

Pursuant to these regulatory amendments, the Government of Canada will no longer be authorized to monitor the entities covered by these amendments or to ban such entities from hiring foreign nationals under the IMP for mistreatment or other behaviour that would have constituted a violation of program conditions prior to these amendments. The Government of Canada will also no longer be authorized to refuse to issue work permits to foreign nationals hired by these entities on the basis of previous non-compliance. However, the change in authorities will likely have little to no effect on the behaviour of these entities, given the current challenges in undertaking compliance activities against them.

It is estimated that fewer than 300 persons, the number of foreign nationals who apply for work permits under the IMP annually to work for the entities covered by these regulatory amendments, will be affected by the changes.

In the event that a foreign mission or international organization mistreats a foreign national hired through the IMP, the foreign national will have no recourse against such an entity in the Canadian court system, as was the case prior to these amendments. However, they might have access to legal protections in their home country.

Foreign nationals employed by a foreign government outside of a mission or by an international bridge or tunnel authority currently have possible recourse against an abusive employer in the Canadian court system under federal criminal law or provincial employment law, and will continue to do so even if the employer is now exempt from the IMP condition requiring compliance with federal and provincial laws that regulate employment. It is acknowledged that seeking such recourse in the Canadian court system might be difficult given the time-limited nature of the foreign nationals’ presence in Canada. As with foreign nationals employed by a mission or international organization, it is possible that foreign nationals employed by a foreign government outside of a mission, or by an international bridge or tunnel authority, might have access to legal protections in their home country, similar to those available to Canadians working abroad in certain circumstances under the Canada Labour Code.

Facilitating global international mobility

International agreements and arrangements between Canada and foreign governments or international organizations help advance the Government’s foreign relations by supporting transnational labour mobility, which is a vital component of Canada’s global co-operation and engagement strategy. Amending paragraph 204(a) to mention international arrangements and international organizations clarifies the Regulations in a way that better supports Canada’s foreign policy commitments. Upholding Canada’s global co-operation and engagement strategy with other countries by facilitating the movement of certain foreign nationals into Canada may also benefit Canadians who would be afforded similar work opportunities abroad.

Implementation, enforcement and service standards

The Regulations will come into force on February 27, 2018. Once in force, the entities listed in these amendments will no longer be subject to the compliance provisions (i.e. the requirements to pay a fee, to submit offer of employment information, to submit to inspection, to keep records required to be produced on inspection, and to submit to administrative penalties) when hiring foreign nationals under the IMP. The Department will also be authorized to issue work permits to foreign nationals undertaking work pursuant to either an international treaty or an international arrangement.

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