Canada Gazette, Part I, Volume 152, Number 50: Regulations Amending the Immigration and Refugee Protection Regulations
December 15, 2018
Immigration and Refugee Protection Act
Department of Citizenship and Immigration
REGULATORY IMPACT ANALYSIS STATEMENT
(This statement is not part of the Regulations.)
Migrant workers are important to 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. To do so, they are required to change their work permit authorization, which can be both challenging and time consuming. 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 factors including language barriers and the costs involved in navigating the complex legal recourse mechanisms available to them.
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 some of the criticisms levelled at employer-specific work permits. Notably, this type of work permit creates 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 worker's livelihood and legal status. These risks present a compelling incentive for migrant workers to hide their abuse from authorities. 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 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. 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 net 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, post-graduate 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 2017, about 303 000 work permits were issued under both the TFW Program (approx. 79 000) and the IMP (approx. 224 000). Employer-specific work permit holders represented about 33% of migrant workers under the IMP.
Employers hiring migrant workers on employer-specific work permits under both programs are subject to an employer compliance regime to help prevent program misuse and promote safe and fair working conditions for migrant workers. Employers must make reasonable efforts to provide temporary foreign workers with a workplace that is free of abuse and, more specifically, free of the following:
- physical abuse, including assault and forcible confinement;
- sexual abuse, including sexual contact without consent;
- psychological abuse, including threats and intimidation; and
- 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 may include administrative monetary penalties and a temporary or permanent ban from employing migrant workers.
There are three triggers for an inspection of an employer: an employer's name is randomly selected, 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 the employer has a history of non-compliance. Both regimes have mechanisms built in to ensure procedural fairness is provided to employers. If, during an inspection, non-compliance is identified, the employer is 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 a 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, submit a new LMIA application (if applicable) and application for a new work permit. This process can be lengthy and costly, which can serve as a clear disincentive to 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, which outlined 21 recommendations, mostly 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 to 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 on the TFW Program.
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 being proposed.
The objectives of the proposed regulatory amendments are
- to provide migrant workers experiencing abuse, or is at risk of abuse, with a distinct means to leave their employer (i.e. by opening the possibility of obtaining a work authorization for other employers);
- 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
- to facilitate the participation of migrant workers experiencing abuse, or at risk of abuse, in any relevant inspection of their former employer and/or recruiter, or otherwise assisting authorities (noting that this would not be required) by reducing the perceived risk and fear of work permit revocation and removal from Canada.
This proposal would amend the Immigration and Refugee Protection Regulations to
- 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 abuse, or is at risk of abuse; and
- exempt persons applying for such work permits from paying the $155 work permit processing fee.
Once the regulatory authority is in place, officers would be able to issue a distinct open work permit when there are reasonable grounds to believe that a migrant worker is experiencing abuse, or is at risk of abuse. Persons applying for this permit would be exempt from the work permit processing fee and, as a result, would also be exempt from the open work permit privilege fee. Migrant workers would submit an application for the proposed open work permit and it would be assessed on a case-by-case basis based on the evidence provided to the officer.
Migrant workers who hold valid employer-specific work permits, or those who have applied for a renewal of their employer-specific work permit (on implied status) and who are, as a result, authorized to work in Canada without a permit, under either the TFW Program or the IMP, would 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, they would need to secure another work permit or leave Canada, per normal procedure.
The issuance of an open work permit for vulnerable workers in these circumstances would 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.
IRCC and its partner department, ESDC, have engaged with key stakeholders on issues of migrant worker protection on an ongoing basis for the past few years. These stakeholders include migrant workers, employer associations and groups of employers, civil society (migrant worker support organizations and other nongovernmental support organizations), unions, and foreign consular officials. Provinces and territories were also directly engaged on these issues.
During these consultations, several common issues and concerns were raised. These included language barriers, access to, and accuracy of, information on rights and protections, and the fact that migrant workers live in fear of retribution and the threat of being returned to their home country. The lack of immigration facilitation for migrant workers experiencing abuse was also raised. Provinces and territories provided regional expertise and are supportive of federal immigration efforts to improve migrant workers' protection.
IRCC most recently participated in stakeholder consultations on the migrant worker support network pilot in British Columbia, as well as the primary agriculture review of the TFW Program. Through these consultations, there was an opportunity to register views on the open work permit for vulnerable workers proposal from a wide range of stakeholders. Positive feedback was received, among the range of stakeholders, including employers, on the proposal, notably in the context of positive feedback on British Columbia's unique worker protection model through provisions in the Canada–British Columbia Immigration Agreement 2015. Based on support of this existing measure, this proposal seeks to expand nationwide the issuance of an open work permit for migrant workers who are experiencing abuse, or are at risk of abuse.
IRCC also signalled its intention to make regulatory amendments related to worker protection in a forward regulatory plan posted on its website since 2017.
Small business lens
The small business lens does not apply to this initiative, as there would be no additional administrative burden or compliance costs to small business.
The "One-for-One" Rule does not apply to this regulatory amendment, 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.
Gender-based analysis plus
The proposal 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, misinformation. The proposal 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 of abuse, or are at risk of abuse.
Migrant workers in the TFW Program and the 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 wellestablished in the academic literature over the past two decades, in particular those in working 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 proposed 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 2017, approximately 302 500 migrant workers were employed in the TFW Program and the IMP. Of those, approximately 153 460 were on employer-specific work permits, with 23% being issued to females. In the TFW Program, females represented roughly 18% 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 TFW Program 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 proposal is expected to assist migrant workers in these sectors, which are known to create vulnerable conditions.
Upon implementation and going forward, gender aspects (e.g. females in caregiving and males in agriculture) would be monitored and data would be collected on the gender and social context of workers being intimidated and/or harassed, or needing physical protection.
Privacy considerations would 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 would be protected.
Mitigate immigration-related disincentives to leave and report abuse to authorities
Migrant workers on employer-specific permits are known to fear reprisals 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 proposal intends to mitigate this disincentive to report abuse by undertaking regulatory amendments to create 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 would 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 would also benefit and strengthen the worker protection objectives of existing employer compliance regimes. This is because more migrant workers would come forward to report abuse and share information about their situation with the authorities, thereby increasing the integrity of compliance decisions and findings. Without these reports, it is possible that the cases or risk of abuse would never come to the Government's attention.
Minimize regulatory differences on worker protection between jurisdictions in Canada
There are two precedents for the proposed regulatory amendments, 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. To date, Foreign Worker Annexes have been signed with British Columbia (April 2015) and Ontario (November 2017).
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). The proposed regulatory amendments are based on lessons arising from this provincial initiative in British Columbia.
The proposed regulatory amendments would minimize differences between jurisdictions by providing migrant workers across Canada who are 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 proposal would be 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. Canada would complement these initiatives focusing on access to information on rights, by providing a type of immigration 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 these workers 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.
These regulatory amendments aim to mitigate the risk of conditions arising in which migrant workers are compelled to go underground and live and work in Canada without status or authorization.
Benefits and costs
Limited costs and other impacts
Based on the levels of take-up for previous and existing programs in Alberta and British Columbia (a combined total of 100 open work permits delivered over six years), with an added take-up for the nationwide implementation, IRCC estimates there would be approximately 500 work permit applications per year submitted by migrant workers claiming they are experiencing abuse or are at risk of abuse.
The proposed regulatory amendments would result in minor incremental costs to IRCC, including costs associated with processing applications for the open work permit for vulnerable workers (since the application fees would be waived), as well as implementation costs and communication and transition costs for the proposed open work permit. These costs would be absorbed within existing IRCC reference levels.
The introduction of the open work permit for vulnerable workers would 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 a work permit for vulnerable workers would simply be prioritized within the existing envelope of compliance inspections planned each year. In other words, the number of compliance inspections each year would 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 terms of the TFW Program and the IMP are not anticipated to bear costs as a result of the proposed 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 recruit. This risk is anticipated to be low for several reasons. The issuance of an open work permit would not guarantee new employment in Canada, as it would only provide the opportunity 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 proposed regulatory amendments would impose no direct costs to Canadians or permanent residents/consumers. Migrant workers issued the open work permit for vulnerable workers would have access temporarily to the Canadian labour market; however, the work permit would not allow for migrant workers to access the Canadian labour market on a permanent basis. Furthermore, the number of open work permits for vulnerable workers expected to be issued each year (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 was unable to find new employment and/or did 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 proposed 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 proposed open work permit for vulnerable workers would complement 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 would provide the Government of Canada with a mechanism to enable 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 proposed amendments are anticipated to improve the well-being of migrant workers in Canada. Employers would have a further incentive to comply with Program conditions and to not mistreat or abuse migrant workers. Since work sites are rarely composed of only migrant workers, 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 would not be 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 the implementation and the ongoing processing costs, and the potential costs associated with the minor risk of false claims.
Implementation, enforcement and service standards
The Regulations would come into force upon registration. Once the Regulations are in force, officers would 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. 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 negative 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 become more compliant with program requirements. The number of migrant workers who come forward to report claims of abuse, or potential 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 compliance regimes, the number of outcomes of compliance inspections that are triggered as a result of information obtained from reports of abuse, or potential abuse, will be tracked.
A service standard of five business days to process the work permit application would be put in place for this measure, and per IRCC's regular public reporting and client service standards for all its business lines, the Department would aim to meet the service standard 80% of the time.
Temporary Resident Policy and Programs
365 Laurier Avenue West
PROPOSED REGULATORY TEXT
Notice is given that the Governor in Council, pursuant to subsection 5(1), paragraph 32(a) and subsection 89(1) footnote a of the Immigration and Refugee Protection Act footnote b, proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.
Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to David Cashaback, Director, Temporary Resident Policy and Programs, Department of Citizenship and Immigration, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (email: IRCC.TempResRegulations-ResTempReglement.IRCC@cic.gc.ca).
Ottawa, December 6, 2018
Assistant Clerk of the Privy Council
Regulations Amending the Immigration and Refugee Protection Regulations
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 The Regulations are amended by adding the following after section 207:
207.1 (1) If there are reasonable grounds to believe that a foreign national in Canada is experiencing or is at risk of experiencing abuse in the context of their employment in Canada, a work permit may be issued under section 200 to the foreign national who
- (a) holds a work permit issued under subparagraph 200(1)(c)(ii.1) or (iii); or
- (b) previously held a work permit under subparagraph 200(1)(c)(ii.1) or (iii), has applied for a renewal of that permit under subsection 201(1) and is 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 on the day on which they are registered.