Earlier this week, a UK man reported that he was being kicked out of Canada for helping his girlfriend with a DIY job in her apartment.
Tom Rolfe, 24, told the Mirror that he and his girlfriend had driven to Montana from Edmonton so that he could return through the border and have an application for residency processed. (He had been in Canada on a visitor’s visa.)
Coming back into Alberta, however, his case was closely scrutinized. A Canadian Border Service Agency official went through Rolfe’s camera (which, perhaps surprisingly, is within their rights) and found photos of him in girlfriend’s home filling holes in the walls where paintings had hung.
Apparently, the border officer decided Rolfe was not just voluntarily pitching in around his girlfriend’s Edmonton residence but actually interfering in the local job market, potentially stealing work from a Canadian citizen. His application was denied; he was told he had eight days to get out of the country and barred from returning for two years.
“It is just ridiculous, I was helping Sam tidy up her flat before she sold it so we could get a place together,” Rolfe told a reporter.
A trend toward intervention
Many Canadians reading about Rolfe’s struggle were just as surprised as he was by the treatment he received. For example, commenting on a Yahoo! Canada story, an online reader named “Bert” wrote:
“I take [it] that if he cooked his girlfriend dinner, then he'd be denying an aspiring cook a job too! What if he did his own laundry, or massaged his feet, or heaven forbid he picked up a piece of trash on the street and put it in a garbage can. CBSA, always looking for the low hanging fruit to meet some quota, and this is about as low as you can get!”
Others wondered if there was more to the story than what Rolfe had told journalists. Not Toronto immigration lawyer Sharaf Sultan, a partner at Chiarotto Sultan LLP, however. He wasn’t surprised at all by the news.
Sultan says that he has seen this kind of thing before and that “the experience one has is different border to border and, frankly, officer to officer. They really have a lot of discretion, which is part of the problem.”
Anyone showing up at the border should assume that they have some rights, but that their rights are limited, Sultan adds.
“And these days, the trend is increasingly toward protectionism.”
As it turns out, there are a number of apparently innocuous choices a visitor to the country can make that actually violate regulations. We looked at a few scenarios that are fairly common.
Working on a spousal work visa after a divorce
A person can be granted a work permit in Canada through a spouse living in the country who is also on a work permit. But “there is a guideline that states the reason the work permit is issued is because this person is joining a spouse and the couple is residing together,” said Steven Tress, an immigration lawyer in Toronto.
“The person is authorized to work as long as the couple is together.”
If someone is on a two-year spousal work visa but gets divorced, he or she may believe it’s safe to stay in a job somewhere because of the validity of the document.
“The document doesn't say that the visa is only valid if you’re married and residing together, so it comes as a shock to learn that you’re working illegally,” Tress said.
The violation can lead to an exclusion order, which means an individual is banned from visiting Canada for one year without written permission.
Doing any type of work, even unpaid, as a grandparent on a “super visa” or as a visitor
In late 2011, the Canadian government began offering “super visas” to grandparents who have children in the country and would like to stay longer than six months without having to renew a visitor visa. Possessing a super visa means grandma and gramps can stay for up to two years, but they must be supported by their children and cannot work during the stay. This type of visa is usually sought by those who either don’t want to move permanently, or who are in the middle of a sponsorship process for permanent residency, which can take five years, and would like to see their children in the meantime.
“I've had two scenarios where parents were here on that visa, had sponsorships applications in process, and were arrested by immigration for working,” Tress said.
“A lot of times, the defence is, ‘Well, I wasn’t getting paid.’”
However, as Rolfe discovered, getting paid is not the sole factor determining whether something is work.
“If you’re working in a factory and telling me that you’re not getting paid, let’s assume that’s true, it doesn't matter because the whole point to the rule is that a job isn't being taken away from a Canadian,” Tress said.
If you’re volunteering in a church with a volunteer program, that’s fine. But in other situations—you’re helping a friend who owns a shop, or you’re babysitting your grandchildren on a daily basis and you don’t live with them—you have to prove that you’re not taking a potential paid job from someone else.
“On the other hand, if the grandparents live in a separate residence and are asked to watch a child for a couple of hours, that’s fine,” Tress said.
Everything is adjudicated on a case-by-case basis, so it’s hard to draw lines around what’s permissible.
Misunderstanding the definition of “work” is also a problem for young people who come to Canada on a visitor visa but take an unpaid internship.
“The tragedy of super visa cases is that the one-year bar means that if there’s a sponsorship application in the works, it’s cancelled,” Tress said. “You could be four years into the process, and you’d have to start all over again.”
Working on a study visa after dropping out of school
Students who come to Canada on a study visa usually know that they are automatically authorized to work for up to 20 hours per week when in school, and full-time during summer breaks. However, few realize that failing out of school or deciding to quit for any reason means no longer being legally able to work, too. And that’s true no matter how much time is left on the original visa.
Again, a study visa document doesn’t indicate that employment is only allowed while someone is enrolled in a school, which is how many former students unknowingly break the rules.
They may learn of their mistake only when an immigration officer turns up at their workplace.
Getting married after arriving in Canada without having declared a serious relationship
As is widely known, a foreign person can be sponsored as a permanent resident in Canada by marrying someone in the country, but that requires proving that the relationship is legitimate and not one of convenience. Typically an application and evidence is submitted at an embassy overseas, and the couple must wait for official approval before they can be reunited.
Sometimes, however, a partner will come to Canada on a visitor visa and tell the border officer that he or she is visiting “a friend,” not a significant other. A few weeks later, the couple gets married and put in an application for sponsorship.
“The relationship is legitimate and the application is honest, but because they made that misrepresentation, the sponsorship is rejected,” Sultan said.
“A person would have to have a real explanation as to why he or she didn’t declare what kind of relationship it was when asked at the border,” he explained.
Simply telling immigration that you hadn’t planned to tie the knot—that the decision was spontaneous—may sound romantic, but it will not convince anyone.
In case proceedings, Immigration Canada may argue that guidelines about working on student or spousal work visa are self-evident, that the rules around a super visa are posted on the government’s website, or that a visitor to a country should know what’s allowed there. But the fact is, many foreigners are not fully aware of the laws that govern their stay.
“Immigration offers counseling at the border,” Tress Said.
“But when I ask my client ‘did they tell you this at the airport?,’ they say, ‘I don’t know. It was a year ago and after a 22-hour flight.’”
Perhaps immigration could simply give people a written sheet of information explaining all the guidelines rather than rely on an oral consultation, he added, but they don’t.
Regarding Rolfe’s situation in Alberta, Sultan said: “If the story isn’t more complicated, the response is stretching the spirit of the law, because the spirit of the law is to protect Canadians. Was he really taking a job away from a Canadian?”
Sultan feels there is a procedural fairness problem in border agencies. The hurdle to have a matter reviewed is too high since it often requires going to court.
“The officers have an inordinate amount of power and an insufficient sense of the consequences for decisions that have a lot of impact on people’s lives,” he said.” It’s a recipe for disaster.
Sometimes people arriving in Canada do not take the system seriously enough, he added, but on the other hand, there are a lot of examples of overreach by officials. What’s needed, he feels, is a balance — a proportionate amount of oversight to catch the bad apples and protect the labor market but not punish everyone.
“Otherwise you end up with these bizarre decisions.”