Navigating the Challenges of Saudization on Temporary Residency Applications

A number of Federal Court decisions have upheld visa refusals based on concerns that foreign nationals working and living in Saudi Arabia (even for decades) may not be able to establish ties there due to the policy of Saudization. Saudization, officially termed “Nitaqat,” implemented by Saudi Arabia and aims to increase the employment of Saudi nationals in the private sector, heretofore and generally speaking, dominated by expatriates. This policy mandates quotas for employing Saudis, affecting various economic/labour sectors differently.

However, the impact of Saudization extends beyond the borders of Saudi Arabia influencing Canadian immigration decisions for applicants seeking temporary residency, such as study or work permits. Canadian visa officers often assess such applications with the view that Saudization undermines the security of an applicant’s job or residence status in Saudi Arabia, thereby weakening their ties outside Canada (one of the factors at play in such applications). Usually having an applicant that has received a visa to travel, work, and live outside their country of nationality is a positive factor in such applications…

Recent legal challenges have brought some judicial attention to how these immigration decisions are made. Notably, Justice Go’s decision in a recent case provides insight and establishes a new precedent that can help allay concerns raised by Saudization.

In this decision, Justice Go highlighted the importance of individual circumstances over generalized national policies. In this case, Justice Go found that the responsible visa officer failed to consider the applicant’s detailed explanation of how Saudization did not apply to her specific situation. This should be obvious but has signaled a shift in the jurisprudence. The applicant in question submitted a letter explaining that her spouse’s employment in the “High Green” category meant that his company had already met its Saudization quota. She argued that her spouse’s job was secure and that her own application to study in Canada at a post-graduate level should be unaffected by Saudization.

Justice Go criticized the visa officer’s decision for not engaging with the core submissions of the applicant, deeming the decision unreasonable as per the SCC decision in Vavilov setting out a framework for administrative decisions, which requires that decisions be justified, transparent, and intelligible (also, of course, the language in Dunsmuir).

Justice Go also distinguished this case from others, such as Khaleel v Canada, where Justice Elliot which upheld the officer’s decision due to the applicant’s failure to specifically address the Saudization policy in his submissions and his previous non-compliance with immigration regulations. Justice Go noted that unlike in Khaleel, the applicant had directly addressed the implications of Saudization on her circumstances.

Additionally, Justice Go also considered the approach in Chaudhary v Canada, where Justice Brown emphasized deference to the officer’s knowledge of local employment policies. Justice Go clarified that the issue was not the deference itself but whether the officer’s reasons sufficiently addressed the applicant’s submissions concerning Saudization.

Justice Go reiterated that visa officers must consider specific evidence and arguments presented by applicants that demonstrate the inapplicability or irrelevance of Saudization to their particular cases.

For Canadian immigration lawyers and their clients that are ex-pats living/working in KSA (and potentially others living in similar circumstances in the Gulf States/UAE), this decision is helpful. It emphasizes the need to prepare detailed, fact-specific submissions that clearly explain and establish why Saudization (or similar government legislation) does not negatively impact their job security or residency status in the country of residence. By addressing these points, applicants can enhance their chances of overcoming the perceived risks associated with Saudization in their temporary residency applications and even if that doesn’t work it lays the groundwork for robust application for judicial review.

This case is welcome news given the significant number of foreign nationals working in such countries and facing a hurdle in studying, working, or visiting Canada.