LANDED IMMIGRANT STATUS

Permanent residents of Canada, called Landed Immigrants, have many of the rights of Canadian citizens except that a permanent resident may not leave Canada for more than six months in any twelve month period. A permanent resident may also not be involved in any serious criminal offence. If either event occurs, the permanent resident will be stripped of his/ her status.

IMMIGRATION CATEGORIES

There are five primary ways to come to Canada as a permanent resident. They are:

• Sponsorship by a close family member (Family Class);
• By making a Refugee Claim;
• By making an Application as a Skilled Worker;
• By making an Application as a Business Man or Entrepreneur;
• By applying under the Investor Program. An Application under the Investor Program will entail putting $400,000 Canadian in a five year, locked-in-fund.

Family Class.

The Immigration Act, 1976 ( the "Act") permits the immigration to Canada of certain relatives defined as "family class" members. Their application must be "sponsored" by a close relative. To be a sponsor, an individual must be at least eighteen years of age, resident in Canada at the time of the sponsorship and either a Canadian citizen or a permanent resident. The sponsor must execute an Undertaking of Assistance, a document that obliges the sponsor to provide financial assistance and other necessities to the family class immigrant and his or her accompanying family members for a specified period of time.

The following relatives fall within the definition of family class members:

spouses, unmarried children, parents and grandparents of any age, the sponsor’s brothers, sisters, nephews, nieces grandsons or granddaughters, who are orphans, under the age of nineteen and unmarried, the sponsor’s fiancee, any child under the age of nineteen whom the sponsor intends to adopt where such child complies with the requirements of the definition under subsection 2(1)(g) of the Immigration Regulations as well as one other prescribed relative where the sponsor does not have a close relative who is a Canadian citizen, permanent resident or whose application for landing the sponsor may otherwise sponsor.

Once the family class immigrant’s application is sponsored, there are no further selection criteria that the immigrant must satisfy so long as the immigrant and dependent children pass health and background checks for security reasons.

The family class category provides the easiest way to obtain admission to Canada. In addition, family class applications are given priority in processing. Thus, a prospective immigrant who can qualify for the family class category should pursue this type of application notwithstanding any business proposal or employment opportunity that the immigrant might have.

Refugee Claimants.

A person who intends to make a claim to Convention refugee protection may do so by notifying an immigration officer of his or her intention to make a claim. Upon notification of such an intention, the immigration officer is required to forthwith refer the claim to a senior immigration officer. A claim may be made at port of entry, or by someone who is already in Canada, provided that no removal order has been made against that person, or if a removal order has been made an appeal of that order has been allowed.

There is no specific procedure prescribed by the Act with respect to the determination by a senior immigration officer, that a claimant is eligible to make a claim to Convention refugee status. Typically, the Refugee claimant must meet the definition of the 1951 United Nations Convention Relating to the Status of Refugees Accordingly, the Refugee claimant must be able to establish that he or she has a well founded fear of persecution if returned to his or her country of nationality or habitual residence on basis of race, religion, nationality, membership in a particular social group or political opinion. In addition, the claimant must be in flight and outside of the country of his or her nationality because of the persecution feared and must be either unable or unwilling to avail him or herself of the protection of the country of nationality, by reason of an alleged well founded fear of persecution.

The senior immigration officer must assess the case of the Refugee claimant against the backdrop of the aforementioned criteria and the relevant section of the Act (section 46.01) and then either refer the case to the Refugee Division of the Immigration and Refugee Board or alternatively, refuse to refer the case for such determination . The Refugee Division, in most cases, will devote an entire hearing to the determination of the case. Where the Refugee claimant is successful at the hearing the Refugee claimant may apply for landing status under the Act. Generally, landing status will then be granted.

Where the senior immigration officer refuses to refer the case to the Refugee Division for further determination or the Refugee claimant is unsuccessful at the hearing, an appeal lies to the Appeal Division of the Board. Applications for leave and for judicial review may be filed with the Federal Court of Canada in regards decisions made by the Appeal Division of the Board.

Applications by Skilled Workers.

Skilled workers who apply for landing status in Canada must have an occupation listed on the General Occupation List, published by Citizenship and Immigration Canada and generate at least seventy units of assessment on an arbitrary scale called the "points system". The "points system" was designed to be a neutral assessment of how well a person will be able to assimilate into Canadian society. The ten selection factors are:

• education (maximum points: 16);
• education and training (assessed in relation to the intended occupation) (maximum points: 18);
• experience (maximum points: 8);
• occupational demand (maximum points:10);
• arranged employment (maximum points: 10);
• demographic factor (maximum points: 10);
• age (maximum points: 10)
• knowledge of English and French (maximum points: 15);
• personal suitability (maximum points: 10); and
• kinship bonus (maximum points: 5).

A visa officer has the discretion under subsection 11(3) of the Immigration Regulations to go beyond the point system and issue an immigrant visa if in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependents of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer.

Business Immigrants.

Business Immigrants must accumulate at least 25 assessment units in the points system and be able to demonstrate that they have the ability and the intention to establish, purchase or make a substantial investment in a business in Canada. No units are awarded to Business Immigrants with respect to Occupational Demand or Arranged Employment. The investment must make a significant contribution to the Canadian economy and at least one Canadian citizen or permanent resident must be employed as a result of the business or investment. Furthermore, the Business Immigrants must demonstrate that they have the intent and ability to provide active and ongoing participation in the management of the business that will be set up. Passive investment, such as in real estate, is insufficient to qualify an immigrant for landing status under this category.

Immigrant Investors.

In order to qualify under this category, immigrants must be able to demonstrate that they have business experience relating to the successful operation, control or direction of a business, a net worth accumulated through their own efforts of at least $500,000 and be able and willing to make a minimum investment of at least $ 400,000 in a qualifying fund for a minimum period of five years.

The Immigrant Investor Program, in recent years, has come under significant scrutiny as a consequence of alleged abuses both by immigrants and Canadian promoters of funds. Currently, the only funds that are available are provincially sponsored and the immigrant must make out a cheque in the prescribed amount to the Receiver General of Canada.

In addition, to making the investment, immigrants under this category must be able to accumulate at least 25 units in the point system on the same footing as it applies to Business Immigrants to Canada.