Regulations Amending the Immigration and Refugee Protection Regulations: SOR/2019-148
Canada Gazette, Part II, Volume 153, Number 11
SOR/2019-148 May 22, 2019
IMMIGRATION AND REFUGEE PROTECTION ACT
P.C. 2019-574 May 21, 2019
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, pursuant to subsection 5(1), paragraph 32(a) and subsection 89(1) footnote c 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
1 (1) Subparagraph 200(1)(c)(ii) of the Immigration and Refugee Protection Regulations footnote 1 is replaced by the following:
- (ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 or 207.1 but does not have an offer of employment,
(2) Section 200 of the Regulations is amended by adding the following after subsection (3):
Non-application of paragraph (3)(e)
(3.1) Paragraph (3)(e) does not apply to a foreign national referred to in subsection 207.1(1) who engaged in unauthorized work in Canada or failed to comply with a condition of a previous permit or authorization.
2 The Regulations are amended by adding the following after section 207:
207.1 (1) A work permit may be issued under section 200 to a foreign national in Canada if there are reasonable grounds to believe that the foreign national is experiencing or is at risk of experiencing abuse in the context of their employment in Canada and if they
- (a) hold a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii); or
- (b) previously held a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii), have applied for a renewal of that permit under subsection 201(1) and are authorized to work in Canada under paragraph 186(u).
Family member of vulnerable worker
(2) A work permit may be issued under section 200 to a foreign national in Canada who is a family member of a person described in paragraph (1)(a) or (b).
3 Subsection 299(2) of the Regulations is amended by striking out “and” at the end of paragraph (j), by adding “and” at the end of paragraph (k) and by adding the following after paragraph (k):
- (l) a person described in section 207.1.
Coming into Force
4 These Regulations come into force at 00:00:01 a.m. Eastern daylight time, June 4, 2019, but if they are registered after that time, they come into force at 00:00:01 a.m. Eastern daylight time on the day after the day on which they are registered.
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Migrant workers play an important role in Canada’s economy by filling gaps in the Canadian labour market, enhancing trade, and increasing cultural links. Migrant workers on employer-specific work permits in Canada are only authorized to work for the employer named on their permit, making it inherently difficult for them to change jobs. While most employers are committed to proper treatment of their workers, the power imbalance created by this dynamic favours the employer and can result in a migrant worker enduring situations of misconduct, abuse or other forms of employer retribution. This is compounded by other potential factors facing migrant workers, including language barriers and the costs involved in navigating the complex legal recourse mechanisms.
To respond to these challenges, the Government of Canada has undertaken a thorough analysis of the advantages and disadvantages associated with employer-specific work permits. These work permits remain an important tool in Canada’s temporary labour migration management. Together with labour market tests, they enable labour market protection (ensuring employers seek to hire Canadians or permanent residents) and hold employers accountable by requiring them to abide by program conditions (e.g. wages, working conditions). However, the analysis also confirms that this type of work permit can create some conditions under which risks of abuse could be higher. Among these conditions are the structural and financial barriers to mobility for migrant workers experiencing abuse, or at risk of abuse, related to their employment (e.g. by a business owner, a supervisor, a recruiter, or other party).
Currently, migration officers do not have a distinct authority to issue new work permits to migrant workers in situations of potential or ongoing abuse. Should a migrant worker choose to come forward and report a situation of abuse to Immigration, Refugees and Citizenship Canada (IRCC) or Employment and Social Development Canada (ESDC), an inspection of their employer can be triggered, which may result in their employer being temporarily or permanently banned from hiring migrant workers. In the case of a ban, the work permits of all migrant workers working for that employer may be revoked, including the worker who provided the tip. In the absence of a valid work permit, a migrant worker faces financial pressure and potential removal from Canada, compromising the workers’ livelihood and legal status. These risks present a compelling incentive for migrant workers to hide their abuse from authorities. In some circumstances, migrant workers may be pushed “underground,” and seek unauthorized work elsewhere. Since many individuals in these situations endure financial hardship, the fees associated with any new work permit also represent a genuine barrier to changing jobs. Migrant workers also fear reprisal from their employers or recruiters if they give voice to their experiences of abuse, which intensifies their propensity to stay in poor or abusive working conditions.
The Immigration and Refugee Protection Act and the Immigration and Refugee Protection Regulations (the Regulations) allow foreign nationals to work temporarily in Canada, provided they meet all applicable requirements. In most cases, foreign nationals must obtain a work permit. They can do so under two streams: the Temporary Foreign Worker (TFW) Program and the International Mobility Program (IMP). The key distinction between the programs is whether employers are required to have a Labour Market Impact Assessment (LMIA). This assessment determines whether a Canadian is available to do the work, and the likely effect the migrant worker would have on the Canadian labour market.
Under the TFW Program, employers must request an LMIA from 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 migrant worker. Migrant workers under the TFW Program commonly include, but are not limited to, agricultural workers and caregivers.
Under the IMP, employers are not required to seek an LMIA before issuing an offer of employment to a foreign national in Canada, as it is recognized that in certain circumstances, broader benefits to Canada from the employment of a foreign national may outweigh the requirement for this assessment. Migrant workers under the IMP include workers covered under international or bilateral agreements or arrangements, youth taking part in working holiday exchanges, postgraduate students, employees transferred within a company, certain academics, and charitable and religious workers, to name a few. While the TFW Program is jointly managed by ESDC and IRCC, the IMP is managed by IRCC alone.
All work permits issued under the TFW Program are employer-specific. Work permits issued under the IMP can be either open or employer-specific. While open work permits allow a migrant worker to work for any employer, employer-specific work permits restrict migrant workers to only work for the employer hiring them. In 2018, about 340 000 work permits were issued under both the TFW Program (approximately 84 400) and IMP (approximately 255 700). Employer-specific work permit holders represented about 31% of migrant workers under the IMP.
Employers hiring migrant workers on employer-specific work permits under both programs are subject to compliance measures to help prevent program misuse and promote safe and fair working conditions for migrant workers. Employers must make reasonable efforts to provide migrant workers with a workplace that is free of abuse, as defined in section 196.2 of the Regulations, including
- 1. physical abuse, including assault and forcible confinement;
- 2. sexual abuse, including sexual contact without consent;
- 3. psychological abuse, including threats and intimidation; and
- 4. financial abuse, including fraud and extortion.
Both programs inspect employers to verify compliance with regulatory conditions, which includes requiring employers to be actively engaged in the business for which the offer of employment was made; to comply with laws that regulate employment and the recruitment of employees; to provide wages, occupations and working conditions as set out in the offer of employment; and to make reasonable efforts to provide abuse-free workplaces. Employers who have been found to have violated conditions may be subject to proportionate consequences that include administrative monetary penalties and a temporary or permanent ban from employing migrant workers.
There are three triggers for an inspection of an employer: (i) an employer is randomly selected; (ii) there is a reason to suspect an employer of non-compliance (i.e. a complaint or tip was received through the ESDC Tip Line); or (iii) the employer has a history of non-compliance. Both the TFW Program and IMP employer compliance regimes have built-in mechanisms to ensure procedural fairness is provided to employers. If during an inspection non-compliance is identified, employers are provided an opportunity to provide additional information to demonstrate compliance and/or justify non-compliance in certain circumstances. Once a final decision is rendered, the employer is bound by the decision but may apply for judicial review.
Currently, when a migrant worker on an employer-specific work permit under either program is experiencing abuse or is at risk of abuse, they can report it to the relevant authorities. However, should they wish to leave their employer, they must find another employer who is willing to hire them. That employer must obtain a LMIA (if applicable), and the migrant worker must apply for a new work permit. This process can be lengthy and costly, which can serve as a clear disincentive to report abuse. In some circumstances, migrant workers may be compelled to work elsewhere without authorization, rather than endure or report abuse.
On September 19, 2016, the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities (HUMA) tabled its report on the TFW Program, outlining 21 recommendations aimed at improving the TFW Program to better respond to Canadian labour market needs while emphasizing better protections for foreign workers in Canada. The February 2017 mandate letter for the Minister of IRCC contained a commitment to working with the Minister of ESDC and stakeholders to act on the recommendations of the HUMA study.
With respect to strengthening migrant worker protection, the Government agreed with the Committee’s recommendation that further measures could be taken so that migrant workers, particularly vulnerable workers, do not experience mistreatment, abuse or unsafe working conditions during their time working on a temporary basis in Canada.
Emphasizing this commitment, Budget 2018 highlighted Canada’s obligation to ensure that migrant workers are aware of their rights and are protected from abuse. It earmarked $194.1 million over five years, beginning in 2018–2019, and $33.2 million per year ongoing for this purpose. In addition, the Government invested $3.4 million over two years for ESDC to establish a pilot network of support organizations for migrant workers dealing with potential abuse by their employers.
It is within the context of the Government of Canada’s ongoing commitment to migrant worker protection that these regulatory amendments are undertaken.
The objectives of the regulatory amendments are
- 1. to provide migrant workers experiencing abuse, or at risk of abuse, in the context of their employment in Canada, with a distinct means to leave their employer (i.e. by opening the possibility of obtaining a work authorization for other employers);
- 2. to mitigate the risk of migrant workers in Canada leaving their job and working irregularly (i.e. without authorization) as a result of abusive situations; and
- 3. to facilitate the participation of migrant workers experiencing abuse, or at risk of abuse, in the context of their employment in Canada, in any relevant inspection of their former employer and/or recruiter, or otherwise assisting authorities (noting that this will not be required) by reducing the perceived risk and fear of work permit revocation and removal from Canada.
The Regulations are amended to
- 1. introduce a new specific regulatory authority for migration officers to issue open work permits to migrant workers and their family members in Canada when there are reasonable grounds to believe that the migrant worker who holds an employer-specific work permit is experiencing or is at risk of abuse in the context of their employment in Canada;
- 2. exempt persons applying for such work permits from paying the $155 work permit processing fee; and
- 3. provide that the new open work permit may be issued to migrant workers even if they have engaged in unauthorized work in Canada.
With the regulatory authority in place, officers will be able to issue a distinct open work permit when there are reasonable grounds to believe that a migrant worker is experiencing or is at risk of abuse in the context of their employment in Canada. Persons applying for this permit will be exempt from the work permit processing fee and, as a result, will also be exempt from the open work permit privilege fee. Migrant workers may submit an application for the open work permit and it will be assessed on a case-by-case basis, based on the evidence provided to the officer. A migrant worker’s family members will only be eligible for the open work permit for vulnerable workers if they are already in Canada, and the migrant worker meets the eligibility criteria.
Migrant workers who hold valid employer-specific work permits, under either the TFW Program or the IMP, or those who have applied for a renewal of their employer-specific work permit (i.e. on implied status) and who are, as a result, authorized to work in Canada without a permit will be eligible to apply for the open work permit for vulnerable workers. If approved, the migrant worker would be authorized to work for any employer for the time period provided on the open work permit issued by the officer. In order to continue working with authorization after the expiry of this open work permit, the worker would need to secure another work permit or leave Canada, per normal procedure.
Migrant workers may be eligible for the open work permit for vulnerable workers even if they have engaged in unauthorized work in Canada. This will ensure that unauthorized work, which may form part of the basis of a claim of abuse, does not negatively affect an application for the open work permit for vulnerable workers.
The issuance of an open work permit for vulnerable workers in these circumstances will not lead to an automatic finding of employer non-compliance; however, it may lead to an inspection being conducted to verify employer compliance with program conditions. If a determination of compliance is ultimately made, this would not affect the validity of the open work permit issued to the migrant worker.
The proposed Regulations were prepublished in the Canada Gazette, Part I, on December 15, 2018, followed by a 30-day comment period. IRCC also undertook extensive stakeholder consultations, including an email invitation to a range of implicated stakeholders requesting their input by written submissions. During this time, comments in response to the prepublication were received from 46 individuals and organizations, including migrant worker support organizations, industry associations, employer groups, unions, legal representatives and law offices, and independent academic experts. These submissions were complemented by seven in-person consultations held across Canada, where the focus was on hearing the views of migrant worker support organizations and migrant workers themselves. Round-table discussions were held in Vancouver, Edmonton, Winnipeg, Toronto, Montréal and Halifax. Provinces and territories were consulted multilaterally. ESDC was also engaged on the initiative and concurs with the regulatory amendments, including the additional provision related to unauthorized work.
Stakeholders were generally positive about the initiative. There was support for the intent and objectives of the initiative and most stakeholders welcomed the proposal as a step in the right direction with respect to protecting migrant workers. There was broad recognition that the proposal would help address a gap in the current regulatory framework by providing migrant workers who face abuse with a facilitated option to be authorized to work for a different employer. Many stakeholders felt that the existing regulatory framework had more focus on ensuring that employers would comply with program conditions, but less focus on offering relief for migrant workers subject to abuse. Of note, stakeholders commended the fee exemptions as a means of addressing financial barriers, and encouraged the rapid processing of these applications in order to address the urgency of some situations.
Stakeholders raised a number of questions and concerns, which are thematically addressed below. One change to the Regulations has been made in response to a concern raised about client eligibility in situations where the applicant was coerced to perform unauthorized work. This concern, which was noted by several stakeholders in both written submissions and at in-person round tables, is addressed under “Eligibility” below. Most of the other concerns are not regulatory in scope, and, therefore, IRCC intends to address these matters outside the Regulations, for example in publicly available operational guidelines and in communication and outreach materials.
Definition of “abuse” and “risk of abuse”
A majority of stakeholders, including migrant worker support organizations, employer groups and legal representatives, raised questions about how “abuse” and the “risk of abuse” will be defined and assessed, noting that these terms should be clearly articulated for IRCC officers, migrant workers, and employers.
Abuse is currently defined in section 196.2 of the Regulations and consists of physical, sexual, psychological and financial abuse. No changes are proposed to this regulatory definition of abuse. However, to ensure greater clarity on the application of these provisions, IRCC will clarify these terms in greater detail, including by providing examples of the type of evidence that may demonstrate “abuse” and “risk of abuse,” in the program guidelines, also known as Program Delivery Instructions, which will be available on IRCC’s website upon implementation. Program Delivery Instructions are interpretative guides for officers and are posted on IRCC’s website for the public’s reference. In addition to the guidance, officers will receive training on how to assess these cases prior to implementation.
A cross-section of stakeholders, including employer groups and migrant worker support organizations, raised concerns that the program could be misused by applicants presenting fraudulent claims of abuse. In addition to the risk that workers themselves could present unfounded claims, some stakeholders raised the potential risk of unscrupulous agents encouraging migrant workers to bring forward false claims. For example, agents may misinform migrant workers about the program, and attempt to profit from migrant workers by charging them fees to make unfounded claims. It was largely agreed that this type of misuse would negatively affect employers and genuine applicants alike.
IRCC will ensure the integrity of the open work permit for vulnerable workers process by establishing a comprehensive risk mitigation strategy with regard to false claims. First, officers will receive training on how to assess applications, including eligibility requirements and examples of supporting evidence. This training will be accompanied by clear guidance in the Program Delivery Instructions, which will also be publicly available to ensure transparency on decision-making. A communications strategy will also be developed to ensure that migrant workers are aware of the initiative and how to access it if needed, which is expected to reduce migrant workers’ reliance on agents. The main communication piece will be multilingual in scope and will underscore key components of the initiative, for example, that application fees will be waived. Finally, IRCC will closely monitor decisions and cases during the implementation of the initiative, and will make changes to the operational guidance and process as necessary.
Role of third parties
Stakeholders wanted to know if third-party support organizations, like non-profit settlement agencies or an ombudsperson, could be involved in the process. Stakeholders often noted the role that third parties play in a similar program currently in place in British Columbia. For example, some stakeholders asked if non-profit groups could be federally funded to assist migrant workers in submitting complete applications and ensuring awareness of the initiative. Some stakeholders also noted that trusted third parties should be in place to act as “gatekeepers” in order to mitigate program misuse.
While IRCC appreciates the role that stakeholders currently play in providing migrant workers with support services, most notably as they are often a worker’s first and most-trusted point of contact, there is no formal role for third parties provided for in this initiative.
Accessibility and awareness
Stakeholders identified a number of barriers that some migrant workers face or could face with respect to accessing this program specifically, and accessing other supports more broadly. Barriers identified included access to information, including in languages workers speak or read; resources and support; geographic and social isolation; access to online resources and application materials; and the fear associated with reporting abuse to government authorities. Employer training and education was also emphasized.
Migrant workers will be encouraged to access existing support services in Canada and IRCC will collaborate with service provider organizations during implementation to assist with awareness building. To promote and complement the initiative, IRCC intends to develop multilingual videos for stakeholders to share with migrant workers across Canada.
It is important to note that this initiative is intended to fill a specific immigration-related gap, that is, to provide migrant workers on employer-specific work permits in situations of abuse the authorization to work for another employer. While the initiative is intended to mitigate against abuse, and may also help to encourage better employer compliance, it is recognized that this initiative will not address all issues currently facing migrant workers in Canada.
Duration of work permit
Stakeholders presented concerns that the duration of the open work permit for vulnerable workers was not prescribed in the Regulations, and that the duration should be long enough to ensure that migrant workers have sufficient time to transition to a new employer and work permit. Many stakeholders suggested a minimum duration of one year.
As with all work permits issued under the Regulations, work permit duration is established at the discretion of the officer. IRCC will work, through operational guidelines, to ensure that processing officers consider a variety of factors when prescribing the validity period of the work permit. The guidance will emphasize that the open work permit for vulnerable workers is a transitional measure. Officers will be encouraged to consider a range of factors related to this, including time needed to find a new employer and the processing times for a Labour Market Impact Assessment and a new work permit application. The guidance will include details about how the work permit will be issued, including a suggested duration. However, consistent with existing guidelines, each case will be assessed on a case-by-case basis to account for exceptional cases.
Many stakeholders raised concerns that the eligibility criteria for the open work permit for vulnerable workers were too limited. The requirement that migrant workers either hold a valid employer-specific work permit or have applied for a renewal was perceived by some stakeholders to be too restrictive, as workers who have fallen out of status and are unauthorized to work in Canada are excluded. Some stakeholders raised a related issue whereby migrant workers whose situation of abuse involved coercion into unauthorized work would, by sharing that information with IRCC, potentially become ineligible for a work permit in Canada.
IRCC maintains that the new open work permit for vulnerable workers is not a means for migrant workers who are no longer authorized to work legally in Canada to regularize their status. As a result, IRCC does not intend to amend the Regulations so that migrant workers without a valid work permit would be eligible.
IRCC recognizes that in providing evidence in support of their application for the open work permit for vulnerable workers some applicants may be required to disclose having performed unauthorized work, as it may constitute a key component for their claim of abuse. At present, performing certain unauthorized work may make applicants ineligible for a work permit, as per the Regulations. In response, the Regulations have been amended to provide that migrant workers may be eligible for the new open work permit even if they have engaged in unauthorized work in Canada. This is not considered a substantive policy change, since it addresses a gap that was not initially accounted for in the regulatory proposal, and is consistent with the intended policy objectives.
Some stakeholders recommended broad options, which are beyond the scope of this initiative, to address the issue of migrant worker mistreatment and abuse in Canada. These options included calls for permanent resident status upon arrival, open work permits for all workers, sector- or occupation-based work permits as opposed to employer-specific ones, and fee-exempt employer-specific work permits. These recommendations are considered out of scope for this initiative because they deal with broad program and policy issues relating to immigration and work permits generally. This initiative is specifically designed to provide — on a case-by-case basis — individual migrant workers in situations of abuse or risk of abuse with a means to leave that situation and work elsewhere. This initiative is not designed or intended to fundamentally alter the administration of the Temporary Foreign Worker Program or the International Mobility Program. Finally, other stakeholders recommended that IRCC proceed with this initiative on a pilot basis. IRCC notes that this initiative is in part based on experience with similar but smaller-scale programs in British Columbia and Alberta.
Small business lens
The small business lens does not apply to this initiative, as there is no additional administrative burden or compliance costs to small business.
The “One-for-One” Rule does not apply to these regulatory amendments, as there is no change in administrative costs to business.
Strategic environmental assessment
In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.
Assessment of modern treaty implications
Pursuant to the Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment of modern treaties was undertaken on this initiative. The assessment did not identify any modern treaty implications or obligations.
Gender-based analysis plus (GBA +)
The initiative is expected to have varied indirect impacts for different genders of diverse intersectional identities. The power imbalance that is somewhat inherent in all employment relationships is intensified for migrant workers as a result of their temporary status in Canada, and in the case of employer-specific work permit holders, the conditional nature of their authorization to only work for one employer. This imbalance can be further exacerbated by factors such as low language and skill levels, lack of knowledge of their rights, and misinformation. The initiative is expected to address vulnerable migrant worker groups to some degree as it would provide them with the opportunity to obtain open work authorization when in situations or at risk of abuse.
Migrant workers in the TFW Program and IMP may face challenges that make them vulnerable while working in Canada. Gender and intersectional factors (e.g. age, race, low skill level, low wage level, and/or low language level) may further exacerbate workplace abuse. Their qualitative lived experience in Canada as “vulnerable,” “exploited,” “precarious” and at risk of abuse by their employers has been clearly documented and well-established in the academic literature over the past two decades, in particular those working in agricultural and caregiving occupations.
However, since migrant workers fear reporting abuse, reliable quantitative data is not available to draw conclusions. That said, qualitative evidence suggests pockets of deeper vulnerability, such as caregivers who are virtually all female and are likely exposed to greater rates of sexual and physical abuse due to their living and working arrangements. As a key objective of the regulatory amendments aims to provide migrant workers experiencing abuse, or at risk of abuse, with a means to leave, it is anticipated that this vulnerability would be mitigated to a certain degree.
In 2018, approximately 340 000 work permits were issued under the TFW Program and IMP. Of those, approximately 163 900 were on employer-specific work permits, with 23% being issued to females. In the TFW Program, females represented roughly 17% across all skill levels. For the IMP, males also outnumbered females in many streams. This could be a result of the historically gendered nature of certain occupations/policies in the source countries; “traditional” maternal responsibilities in caring for children; and access to education. The disparity was also potentially exacerbated by reforms introduced in June 2014, which reduced the number of caregivers on temporary status (90% female) and slightly increased the number of agriculture workers (over 90% male). The initiative is expected to assist migrant workers in these sectors, which are known to create vulnerable conditions. As evidence to date regarding unauthorized work is anecdotal, IRCC cannot anticipate clear differential impacts on the basis of gender as a result of the additional amendment. However, IRCC will monitor as more clear evidence is collected.
Following implementation, IRCC will analyze the gender aspects of this program as part of regular monitoring activities.
Privacy considerations will be reflected in the Privacy Impact Assessment for the IMP, given that the open work permit for vulnerable workers will be issued under this program, detailing how privacy information will be protected.
Mitigate immigration-related disincentives to leave and report abuse to authorities
Migrant workers on employer-specific permits are known to fear reprisal or deportation if they speak out against their employer, and many cannot bear the financial consequences of leaving an employer, for example due to situations of debt arising from fees paid to recruiters.
Accordingly, this initiative intends to mitigate this disincentive to report abuse by creating a specific open work permit for migrant workers experiencing abuse, or at risk of abuse, enabling them to leave bad situations while maintaining a basic sense of security regarding their stay in Canada. The amendments also waive any associated fees for the work permit application to minimize financial barriers in accessing the provision.
Improved propensity to report abuse to relevant authorities will also benefit and strengthen the worker protection objectives of existing employer compliance programs. This is because migrant workers may be more willing to come forward to report abuse and share information about their situation with authorities, thereby increasing the integrity of compliance decisions and findings. Without these reports, it is possible the cases or risk of abuse would never come to IRCC’s attention.
Minimize regulatory differences on worker protection between jurisdictions in Canada
There are two precedents for this new measure, both of which fall under provincial jurisdiction. Under the Canada-Provincial-Territorial Immigration agreements, provinces can negotiate Foreign Worker Annexes to provide a formal vehicle for IRCC, ESDC, and provinces or territories to work together to enhance worker protections while addressing urgent provincial/territorial labour requirements and priorities.
In terms of worker protection, the Foreign Worker Annexes speak to increased federal-provincial-territorial collaboration, such as developing programs and initiatives to enhance migrant worker knowledge of and access to provincial services, and informing employers about their obligations under federal-provincial-territorial laws with regard to migrant workers. A key example of a federal-provincial initiative under the British Columbia Foreign Worker Annex is the provision of an open work permit to migrant workers at risk of abuse as a result of potential employer non-compliance with applicable provincial or federal laws. This type of provision also existed in a former Foreign Worker Annex with Alberta (ended in 2015). These regulatory amendments are based on lessons arising from these provincial initiatives in British Columbia and Alberta.
This new initiative will minimize differences between jurisdictions by providing migrant workers across Canada experiencing abuse, or at risk of abuse, access to an open work permit.
Minimizing this difference is essential as migrant workers come to Canada to work under federal programs, and any provincial/territorial differences should be reduced as much as possible, especially those that provide access to protection.
From an international perspective, Canada’s initiative is the first of its kind in this area, while largely aligning with like-minded countries’ narratives on protection in the context of abuse/exploitation of migrant workers. For example, like-minded countries (Australia, New Zealand, and the United Kingdom) have all committed publicly to improving migrant workers’ access to rights information and have made policy/program changes to facilitate this information sharing. For example, Australia has moved towards multilingual communication channels for migrant workers to obtain information and provide anonymous tips on problem employers. These Regulations complement these initiatives, which focus on access to information on rights, by providing a type of immigration status and work authorization facilitation for those migrant workers experiencing abuse, or at risk of abuse, in the context of their employment.
Facilitate availability of regular pathways for migrant workers in abusive situations
Currently, some extreme circumstances where migrant workers are experiencing abuse may push them to leave their employers and work “underground” (i.e. without authorization) because of the lack of facilitative work permit options. In particular, the risks associated with unauthorized work in Canada (which include inability to access social/health services, financial insecurity, risk of removal from Canada) may outweigh the risks of staying in an abusive situation.
This new initiative aims to mitigate the risk of conditions arising when migrant workers are compelled to go underground and live and work in Canada without status or authorization.
Costs and benefits
Limited costs and other impacts
Based on the levels of take-up for previous and existing programs in Alberta and British Columbia (a combined 100 open work permits delivered over six years), with an added take-up for nationwide implementation, IRCC estimates there will be approximately 500 work permit applications per year submitted by migrant workers claiming they are experiencing abuse or at risk of abuse. For clarity, this is an estimate and not a limit on the number of applications IRCC would accept for processing.
The regulatory amendments will result in minor incremental costs to IRCC, including costs associated with processing applications for the open work permit for vulnerable workers, as well as implementation costs and communication and transition costs for the open work permit. These costs will be absorbed within existing IRCC reference levels.
The introduction of the open work permit for vulnerable workers will not lead to an incremental increase in the net number of compliance inspections conducted by IRCC and ESDC each year. Rather, any inspections triggered as a result of the issuance of an open work permit for vulnerable workers will simply be prioritized within the existing envelope of compliance inspections planned each year. In other words, the number of compliance inspections each year will not change as a result of the introduction of the open work permit for vulnerable workers. Non-compliant employers may lose workers for which they paid fees to hire as a result of the issuance of the open work permit for vulnerable workers, but such costs are considered out of scope.
Generally, employers complying with the existing conditions of the TFW Program and IMP are not anticipated to incur costs as a result of these regulatory amendments. However, there is a low risk that migrant workers may register false claims of abuse in order to obtain an open work permit, which could lead to a situation where an employer who was compliant loses a worker they had paid to hire. This risk is anticipated to be low for several reasons. The issuance of an open work permit does not guarantee new employment in Canada as it only provides the authority to work legally in Canada for a limited time. Breaking employment would come at a cost, financially and socially, and would still project the worker into uncertainty vis-à-vis their immigration status and livelihood. Furthermore, misrepresentation with respect to an application under the Immigration and Refugee Protection Act is a ground for inadmissibility, which could result in a worker’s loss of temporary status in Canada.
The regulatory amendments impose no direct costs to Canadians or permanent residents/consumers. Migrant workers issued the open work permit for vulnerable workers will have temporary access to the Canadian labour market; however, this open work permit is understood as a “transitional” measure and is not intended to allow migrant workers to access the Canadian labour market on a permanent basis. Furthermore, the number of applications for open work permits for vulnerable workers (approximately 500) is not expected to have an appreciable impact on the Canadian labour market. If a migrant worker with an open work permit for vulnerable workers is unable to find new employment and/or does not meet the conditions for an extension, the migrant worker would be required to leave Canada, per normal procedure.
Benefits to migrant workers, Canadian employers and Canadian workers
In addition to the benefits listed in the “Rationale” section above, the amendments are anticipated to have a positive impact on workplaces, society and culture. These measures would enhance the sense of trust among migrant workers and the public with regards to how Canadian society treats migrant workers.
The open work permit for vulnerable workers complements the range of tools available to the Government of Canada to ensure the integrity of the TFW Program and the IMP, thereby bolstering the reputation of Canada as a safe destination for migrant workers. While working conditions and work environments of migrant workers in Canada are centrally influenced by employers, the open work permit for vulnerable workers provides the Government of Canada with a mechanism to enable migrant workers to safely exit abusive workplaces.
By providing a mechanism for migrant workers to leave workplaces characterized by abuse, including detrimental health and safety conditions, the amendments are anticipated to improve the well-being of migrant workers in Canada. Employers would have a further incentive to comply with the program conditions and to not mistreat or abuse migrant workers. Since work sites rarely comprise migrant workers alone, this could have positive spillover benefits to Canadian workers, namely more respectful and healthy workplaces. It would also facilitate the participation of migrant workers experiencing abuse, or at risk of abuse, in any relevant inspection or investigation of their former employer and/or recruiter (noting that this is not required) by reducing the perceived risk and fear of work permit revocation and removal from Canada.
On balance, the anticipated benefits of introducing the open work permit for vulnerable workers outweigh the low costs to government associated with implementation and ongoing processing costs, as well as the potential costs associated with the minor risk of false claims.
Implementation, compliance and enforcement, and service standards
The Regulations come into force on June 4, 2019. Once the Regulations are in force, officers will be able to issue open work permits if they have reasonable grounds to believe a migrant worker is experiencing, or is at risk of experiencing, abuse in the context of their employment in Canada. As part of the implementation of this measure, training will be provided to migration officers who will be responsible for processing these applications.
In terms of outcomes, in the short and medium term, it is expected that migrant workers in these situations will have access to open work permits to help them leave abusive situations and that non-compliant employers are identified and consequential measures are applied. In the long term, it is expected that migrant workers will be better protected and employers will become more compliant with program requirements. The number of migrant workers who come forward to report claims of abuse, or risk of abuse, and the number of open work permits issued, will be tracked and monitored closely. As part of the ongoing performance measurement strategies for the TFW Program and IMP, the number of compliance inspections, and their outcomes, that are triggered as a result of information obtained from reports of abuse, or risk of abuse, will be tracked.
A service standard of five business days to process the work permit application will be put in place for this measure, and, per IRCC’s regular public reporting and client service standards for all its business lines, IRCC aims to meet the service standard 80% of the time.
Temporary Resident Policy and Programs
365 Laurier Avenue West