Amnesty for Undocumented Workers

Amnesty for undocumented workers? A recent Toronto Star article may raise hopes for many such individuals and their family members here in Canada. This may be a godsend to undocumented, hardworking migrants that deserve to come out from the shadows and live full lives free from exploitation as new members of the Canadian family. As the article notes, Canada has done this in the past. The Adjustment of Status Program (opened under the first Trudeau) resulted in 39,000 individuals being granted status (including some of my own relatives).

From the article:

  • It is unclear how many undocumented workers could be granted permanent residency under the new program.
  • Three experts consulted as part of the research process told the Star they believed the program would likely focus on workers in particular sectors, rather than taking a broader-based approach.
  • Among MRN’s proposals are a moratorium on deportations and detentions and a free application process that can be easily completed without immigration advisors.

There will be a host of other consequences.

Even the news of such a policy will unrealistically raise the hopes of many outside Canada (economic migrants that don’t meet economic class eligibility and requirements). Unscrupulous agents will advertise and promote this apparent pathway to status, both inside Canada and outside.

It may have the effect of encouraging illegal immigration -individuals may be more likely to remain in Canada, underground, thinking that a route to status may open up in the future.

I can imagine that such a policy may antagonize those that are waiting their turn for status. There are hundreds of thousands of individuals waiting for their spouses/partners/children to join them here in Canada and those that have qualified and applied under an economic stream. They will understandably look askance at such a policy.

Look for various political parties to make hay on this ‘pre-announcement’.

I wrote about amnesty for those without status/undocumented workers about 14 years ago; a number of things have changed since then.

We now have Kanthasamy and a H&C program that is more robust and responsive (shall we say) than the reality in 2008. 

The reality is that any such program is going to be limited in scope. My sense is that it will only allow regularization to those that can establish that they are working in certain sectors, for a certain period of time.

My guess at the ideal/eligible candidate?

  • Someone who has entered on their own passport and had valid status at the time of entry;
  • A failed refugee claimant or a former temporary foreign worker working in a certain sector for over 2 years; and
  • Obviously no criminality or other inadmissibility beyond non-compliance.

Instead of a limited, one off program, perhaps the H&C can simply be expanded to recognize certain workers in certain areas that have been in Canada for a certain number of years. However, this will truly turn the H&C into a separate/standalone immigration class. From the dissent in Kanthasamy:

[85]                          My colleague Justice Abella has considered the meaning of the phrase in question and I agree with much of what she says. With respect, however, I cannot agree with the test she proposes for granting relief under s. 25(1). The scheme of the IRPA and the intention of Parliament in enacting s. 25(1) and its predecessors all suggest that s. 25(1) is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend.

Perhaps we should consider granting status via H&C at the refugee hearing (if the claimant doesn’t meet the refugee definition).

But expanding the H&C definition or inserting it into refugee determination will require legislative change.

There are no details yet. Hopefully we can get the policy details establishing the criteria and the window/time frame within which those eligible can apply. In the meantime, counsel should be prepared to deal with a deluge of questions arising from a news article that is short on details and long on hope.