Nov 15, 2016

Caregivers and their Families Deserve Better Treatment from Canada

Talosig v. Canada (Citizenship and Immigration), 2016 FC 1169 (CanLII)

The in-home caregiver program, former known as the live-in caregiver program, is one of the most controversial paths to Canadian permanent residency. Caregivers – mainly women from developing countries – enter Canada as temporary foreign workers. After a number of years of employment, they can apply for permanent residency. During the years that they fulfill their requirements, caregivers are often separated from their spouses and children, who are not permitted to accompany them to Canada during the period of their temporary foreign work. This is a sacrifice made by the entire family in hopes of future immigration to Canada. Often, this is the only route in immigrating to Canada for families who do not meet the stringent requirements of Canada’s skilled worker or business immigration streams.

What many families do not know is that in addition to the years that they budget as the necessary separation period for a life in Canada, there are frequently additional years of waiting required because of the unacceptable length of time taken by Immigration Officers to process caregiver applications. This length of time is regularly exacerbated by unexpected further communications made by Officers for additional explanations and documents. These supplementary communications, which sometimes unfairly lead to negative decisions, frequently arise from, or within, extremely problematic circumstances that only aggravate the inherent unfairness of the caregiver program.

In October, the Federal Court ruled in favour of a live-in-caregiver in such a circumstance. Ms. Talosig had come to Canada as a live-in-caregiver in 2010, leaving behind her two children and spouse in the Philippines. In 2013, after fulfilling the requirements of the program, she applied for permanent residency for herself and her family. It took an initial eight months for an Immigration Officer to review her application (a deplorable but not uncommon length of time for caregiver applications). After this review, the Immigration Officer informed Ms. Talosig that she needed to submit a police certificate for her spouse. The Officer specified certain explanations and further documents that would be required if the police certificate stated that there was “No Criminal Record”.

Ms. Talosig submitted her spouse’s police certificate. It had a “No Criminal Record” annotation. However, Ms. Talosig did not provide the explanation required by the Officer. There were subsequently further communications between Ms. Talosig and the Officer in respect of unrelated matters. Thereafter, the Officer followed up in respect of the police certificate. Ms. Talosig responded that she did not know why the certificate stated “No Criminal Record” and as the issue was leading to additional delays, she requested that the Officer at least continue processing her children’s application. Ms. Talosig’s application was then rejected based on the failure to produce the documents and/or explanation requested in respect of the police certificate.

Justice Gleeson found that Ms. Talosig had not been treated fairly. In his analysis, Justice Gleeson highlighted the “valuable services” rendered by caregivers, the lengthy period it had taken to process Ms. Talosig’s application, and the fact that “[t]hroughout that processing period, Ms. Talosig had promptly, albeit incompletely, responded to requests for additional documentation and information in support of her application”. Although Justice Gleeson acknowledged that the Officer had specified further documentation and explanations required for the police certificate, he also found that Ms. Talosig had responded to the Officer – she had stated that she “did not know what explanation to provide”. The Officer should not then have proceeded to reject the application. Rather, the Officer should have further communicated in respect of this issue with Ms. Talosig.

Justice Gleeson’s conclusion is heartening. It is unacceptable for Immigration Officers to a) process applications within an inordinate amount of time, and b) reject these same applications without providing applicants with the procedural fairness required. The families that are torn apart trying to immigrate to Canada within the caregiver process deserve better treatment from the same country that benefits from their labour and sacrifice.