The First Assessment: the H&C Decision 31

The Interview 33

The Second Assessment: the Landing Decision 34

Legal Aid 37

Immigrant and refugee women who are abused by their sponsor face particular difficulties in accessing personal safety and protection. If these women do not have landed status, or are at risk of deportation for other reasons, the consequences of leaving an abusive sponsor can complicate their immigration status.

This guide is written for service providers working with any client who:

• is an immigrant or refugee woman;

• has been sponsored to come to Canada by a partner/fiancé/spouse under the family class sponsorship guidelines;

• is experiencing abuse by her sponsor; and

• wants to separate from her sponsor but is at risk of deportation.

Abuse within relationships can include many forms of abusive behaviour: emotional abuse, psychological abuse, neglect, financial exploitation, destruction of property, injury to pets, threats to family, threats to take children away, physical assault, sexual assault, and homicide.

Whether the immigration officer believes your client’s information about the abuse will be very important. Your client will help her case if she can provide supporting evidence about the abuse. See the lists of types of supporting evidence in the section on Humanitarian and Compassionate Applications – "H&C" Applications" – on page 31.

This guide contains information about the legal process for service providers who are supporting women through the immigration process. It contains information to help you prepare your client for the legal process and explain how the process works.

It provides:

• information about the immigration process

• information about legal and financial aid

• information about work and education permits

• a glossary of important terms

• important contacts and services

This guide is organized into typical scenarios. Look at the table of contents to find the scenario that best matches your client’s situation.

If your client is not at risk of deportation but would like information on sponsorship breakdown, see the free booklet produced by Legal Services Society called Sponsorship Breakdown. It is available in English, Chinese, Korean, Punjabi, Spanish, and Vietnamese. See page 46 for how to get a copy.

Your client was sponsored to come to Canada as the fiancée of a Canadian citizen or a landed resident. When she arrived, Immigration Canada granted her landed status on the condition that she marries within 90 days. She must provide proof of this marriage to Immigration Canada within 180 days.

If your client is abused by her fiancé, she may choose to not go through with the marriage. If the marriage does not take place, Immigration Canada sees her as having failed to comply with the terms and conditions of landing. Your client is at risk of removal.

Even if your client has a new partner whom she wishes to marry and who will be her sponsor, she is still non-compliant with the conditions of landing.

If your client does not marry her sponsor within 90 days of her arrival to Canada, she is in contravention of the condition of landing. An immigration officer will consider the reasons why your client failed to comply with terms and conditions of landing, including evidence of abuse.

An immigration officer has the discretion to release your client from the requirement to marry her fiancé. The immigration officer also has the discretion to refer the matter to an adjudicator for an inquiry. She can lose her landed status only at the inquiry level.

It is very important to be proactive. It is not a good idea for your client to "lie low" and hope that Immigration Canada will just forget about her. Keep in mind that her fiancé may have already turned her in. As soon as your client has made a final decision to not go through with the marriage, she should try to get a lawyer and advise Immigration Canada. She needs to tell Immigration Canada she will not be complying with the terms and conditions of her landing and give reasons for her decision to not marry.

Your client should try to get a lawyer to help her prepare a statement. The statement should provide the information that will help Immigration Canada to fully understand your client’s circumstances.

Information that Immigration Canada may consider includes:

• information to show that her engagement was genuine but that she was unable to follow through with marriage because of the abuse

• information to show that her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• information to show that she has a substantial connection to Canada

• information to show that she will be able to support and establish herself in Canada

• any other information that your client feels is relevant

She needs to send this to the immigration officer with a request to change the terms and conditions of her landing. Immigration Canada may say she is not required to marry.

The immigration officer may call your client in for an interview. The immigration officer will ask her about the details of her circumstances and experiences. She should take copies of all documentation that will support her reasons for needing to remain in Canada. Your client can bring a support person to the interview.

Since your client got landed status at the point of entry into Canada, she can get a Social Insurance Number and seek work and/or attend school. This will help her increase her level of "establishment" (Immigration Canada’s term for the way an immigrant builds a new life). If possible, she should avoid going on income assistance. Being on income assistance could have a negative impact on her application.

You can help your client by providing her lawyer with information about her background, her situation, and the difficulties she would face in her country of origin. You can also help by gathering relevant documentation from police, transition houses, employers, etc. Do not go beyond the information the lawyer requests or the information that your client wants to disclose.

To find out what information and documents are useful in the statement, see the section on Humanitarian and Compassionate Applications –"H&C Applications" – on page 31.

If the officer decides that your client does not have to meet the marriage requirement, the officer will note on her file that there should be no further action. If the officer decides to send the matter to an inquiry, they will send your client a "Notice to Appear." This notice gives her the date and time of the inquiry and says that she must attend.

A case at the inquiry level goes to the Adjudication Division of the Immigration and Refugee Board. They will send your client a letter ordering her to appear before the adjudicator.

The adjudicator’s sole concern is whether your client violated the terms and conditions of landing. The adjudicator does not consider the humanitarian and compassionate reasons why she did not meet the terms and conditions. Because your client could not meet the terms and conditions, the adjudicator will most likely decide that a violation occurred, and make a removal order.

Your client can appeal the removal order. If your client has not had a lawyer up to this point, it is very important that she get a lawyer for the appeal process. Under the legal aid guidelines, any financially eligible immigrant who faces removal is entitled to legal aid.

The next step is to appeal the inquiry’s decision. She must file for appeal within 30 calendar days of the inquiry decision. Probably she was given a form at the inquiry telling her how to appeal. If not, she can contact a Canada Immigration Centre to get a form.

The appeal is to the Immigration Appeal Division of the Immigration and Refugee Board. For further information, see the section on "Appeal of Removal Orders," page 35.

Your client came to Canada as a visitor, temporary worker, or student, and decided to marry a Canadian citizen or a landed resident. The relationship has become abusive and your client now wishes to separate from her spouse.

After their marriage, your client or her spouse made an Inland Sponsorship Application. This type of application is processed in two stages. In the first stage of the assessment, the applicant asks for a visa waiver. In the second stage of the assessment, Immigration Canada assesses the applicant for landed status.

You need to know exactly what stage of the application process your client is at. It is also important to make sure she has legal status in Canada at all times. If necessary, she should apply for an extension to her visitor visa.

The following information will help you find out where she is at in the application process, and the possible steps to take.

In the first stage of assessment and within the same application, the applicant asks for an exemption from the immigrant visa requirement. This exemption is called a "visa waiver." Your client has to show that the marriage is "genuine" (i.e. it was not for the purpose of immigration) and that she would face significant hardship if she had to apply from outside Canada.

If Immigration Canada finds that there are humanitarian and compassionate grounds, they will send your client a letter saying that they have approved her application for processing.

If Immigration Canada has not sent your client a letter saying that the visa requirement has been waived, her eligibility to apply as an inland applicant is in jeopardy. With the help of a lawyer, your client will need to contact her immigration officer and modify her application. She is no longer a sponsored applicant. She will now be applying as an independent immigrant based on humanitarian and compassionate grounds.

Your client may be able to avoid paying a second $500 processing fee. She can ask to get her sponsorship application (Application for Permanent Residence in Canada – Spouse of a Canadian Citizen or Permanent Resident) converted into an independent application (Application for Residence in Canada – Humanitarian and Compassionate Cases).

If she can satisfy the requirements for a visa waiver, she will likely be approved for landing from within Canada. If relevant to her situation, she should mention these four points:

• her marriage was genuine but she was unable to stay with her sponsor because of the abuse

• her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• she can show she has a substantial connection to Canada

• she will be able to support and establish herself in Canada

In her first sponsorship application, her reason for the visa exemption was probably that the hardship of being separated from her spouse made it necessary for her to apply for landed status while in Canada. Now that her spouse is no longer a reason to remain in the country, she will have to find a justifiable reason for making an inland application. Examples of circumstances where inland applications may be appropriate are listed in the section on "H&C Applications," page 31.

If your client’s safety or well-being would be in jeopardy if she returned to her home country, she may have the grounds to make a viable refugee claim.

It is also possible that your client qualifies as a member of the independent class. She may remain in Canada as long as her visitor status is current and her application for landing may be sent to a consulate outside Canada.

At this point, your client is not eligible for a work permit, education permit, or income assistance. She can apply for Hardship Assistance, described on page 45, through the province’s Ministry of Human Resources. This should not have a negative impact on her eligibility for a visa waiver. However, after she gets the visa waiver, she should try to find other means of supporting herself. Receiving ongoing government financial assistance will affect her eligibility for landed status.

Immigration Canada may refuse your client’s application if there are insufficient humanitarian and compassionate grounds to process it from within Canada. The $500 processing fee will not be refunded. If she feels she has new information that would change the content of her application, she can reapply and pay another $500 processing fee.

If possible, your client should extend her immigration status so that she is legally in Canada. If she cannot maintain legal status in Canada, she will have to leave Canada and apply from abroad.

In the second stage of the assessment of inland applications, Immigration Canada considers whether the applicant meets the conditions for landing. To be admitted, the applicant has to meet the health criteria, not have a criminal record, and be able to support herself. The decision can take 12-24 months or longer.

If your client separates from her sponsor after she has her visa waiver, her eligibility to apply inland will not be affected. After her visa has been waived, the sponsorship cannot be withdrawn and her application will continue to be processed in the same way. However, her separation may affect her ability to meet the admissibility criteria if she is not able to support herself.

Because she has a visa waiver, she can apply for a work or education permit and begin to work and/or go to school. This could help her become self-sufficient and maintain her admissibility. Your client may also be eligible for spousal support. You can refer her to a family lawyer.

If your client needs to go on welfare, this will make her inadmissible for landed status under the financial criteria set by the Immigration Act.

Even though your client is still technically sponsored by her spouse, she is not obligated to remain in any sort of relationship with him or have any contact whatsoever. Your client is entirely free to live independently and sever all ties with her former spouse.

Immigration Canada may refuse your client’s application if she does not make the financial, medical or criminal record requirements set by the Immigration Act.

At the time your client’s visitor status expires, she is expected to leave Canada voluntarily. Your client can apply to extend her visitor status. However, if she has been refused landing, is it unlikely that Immigration Canada will give her an extension since she is clearly not in Canada for a temporary purpose, and is therefore not a genuine visitor.

If your client does not successfully extend her visitor visa and fails to leave Canada voluntarily, an immigration officer may make a departure order that would require her to leave Canada within 30 calendar days. If she doesn’t leave, the departure order becomes a deportation order. Your client would then require written permission from the Minister of Citizenship and Immigration if she ever wishes to return to Canada.

If Immigration Canada grants your client landed status, she can now apply for welfare and this will not affect her landed status. Her spouse will still be bound by his undertaking of assistance and will be expected to repay any money she gets from the government. This is an important element of any negotiations to reach a separation agreement.

Your client is married to a Canadian citizen or landed resident who took responsibility for managing her immigration application process. Her sponsor led her to believe that her application was in progress, when in fact he had not made an application on her behalf. She is living illegally in Canada with no status and no visitor’s visa and is being abused by her spouse.

If your client wishes to remain in Canada, this is a very serious situation. She should do everything she can to get a lawyer. If she can meet an H&C application (Humanitarian and Compassionate), she needs to file it with Immigration Canada. (Application for Residence in Canada – Humanitarian and Compassionate Cases). See the section on "H&C Applications" on page 31. A lawyer can arrange an appointment with an immigration officer and will attend that interview with the client.

If she can satisfy the requirements for an H&C application, she will likely be granted a visa waiver as an independent applicant. If relevant to her situation, she should mention these four points:

• her marriage was genuine but she was unable to stay with her sponsor because of the abuse

• her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• she can show she has a substantial connection to Canada

• she will be able to support and establish herself in Canada

It is important that your client is able to meet these conditions. You can help her identify and gather the information she needs.

Your client should discuss these requirements with her lawyer. She should also ask the lawyer how to make sure she can maintain admissibility. See page 34 on how to maintain admissibility.

Caution your client about applying for social assistance if she has any other options. Before she gets a visa waiver, being on hardship assistance will not affect her application. However, once she has a visa waiver and is being considered for landed status, being on income assistance could have a negative impact on her admissibility.

Make sure that she gets a referral to a family lawyer so that she can consider applying for spousal maintenance. If your client is involved with both an immigration lawyer and a family lawyer, make sure they are aware of each other.

It is very important to find out if your client has a viable claim for refugee status. Your client should speak to a lawyer to find out if she should pursue this avenue.

Your client is currently in an abusive relationship with her sponsor and wishes to separate. She acknowledges that she or her spouse falsified or omitted relevant information on her immigration application.

Your client may fear that her spouse will disclose this misrepresented information to Immigration Canada as a means of revenge if she breaks up the marriage. Alternately, she may have only recently become aware of this misrepresentation and now wishes to come forward.

A woman who has misrepresented her situation may be at risk in her intimate relationship because she may feel that she needs to stay with her abusive sponsor due to his threats and her fear of deportation.

Immigration Canada says a "misrepresentation" (also called a "misrep") happens when an immigrant or refugee gains admission to Canada by misrepresenting, suppressing, or concealing any relevant fact. The misrepresentation can come from the applicant or from another person. Immigration Canada views misrepresentation as a serious act.

The onus is always on the applicant to provide true and accurate information. Your client would have signed a declaration on her application form saying that it contained accurate information. There is a possibility of criminal charges for misrepresentation under section 94 of the Immigration Act.

If your client is in this situation, you need to find out whether or not she has landed status.

Your client must advise Immigration Canada of any change in her circumstances or any information that needs to be corrected. She needs to do this in writing and as soon as possible. She should get legal advice before she does this. A lawyer will be able to assess the severity of the misrepresentation and help her present her case to Immigration Canada.

She should contact Immigration Canada and say that she wishes to change some of the facts on her application. What action Immigration Canada takes will depend on whether the new information affects her admissibility.

If your client fails to report these facts immediately, she may have to report them after she has received landed status. It will be much more problematic for her to change the information after she has landed status.

Your client is at risk of losing her landed status. The severity of her misrepresentation depends on whether the undisclosed information would have affected her admission. Examples of misrepresentation that can affect admissibility include omitting information about:

• children in her country of origin

• a previous marriage that was not terminated

• any crimes or criminal convictions

Your client should try to get a lawyer to help her prepare a statement explaining the reasons for the misrepresentation and why she needs to stay in Canada. If relevant to her situation, she should mention these three points:

• information about the abuse and the way in which her situation may have compelled her to misrepresent or omit information

• information to show that her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• information to show that she will be able to support and establish herself in Canada

If your client has landed status, she should make sure she has a Social Insurance Number and is working and/or going to school. If she does not have landed status but her application has been approved for processing, she should apply for a work/education permit and seek work or schooling.

You can help your client by providing her lawyer with information about her background, her situation, and the difficulties she would face in her country of origin. You can also help by gathering relevant documentation from police, transition houses, employers, etc. Do not go beyond the information the lawyer requests or the information your client wants to disclose.

An immigration officer will likely call your client in for an interview. They will ask her questions about the misrepresentation. Your client has the right to have a lawyer present. If your client does not have a lawyer, you may be able to attend the interview.

If you attend the interview with your client, you are there as an observer and to provide support and information to your client before and after.

Depending on the nature of the information, it is likely that the immigration officer will send the case on to the inquiry level.

The adjudicator looks at whether your client violated the terms and conditions. The adjudicator does not consider the humanitarian and compassionate reasons for the misrepresentation. Because of this, it is likely that the adjudicator will call for a removal order.

Your client can appeal. She should do this with the help of her lawyer and within 30 calendar days of the inquiry decision. The appeal is made to the Appeal Division of the Immigration and Refugee Board (IRB). See the section on "Appeal of Removal Orders," page 35.

A Convention refugee is someone who has been found to fear persecution in her or his country of origin because of race, religion, nationality, membership in a social group, or political opinion. In Canada, the Immigration and Refugee Board (IRB) Convention Refugee Determination Division (CRDD) decides who is a Convention refugee.

If your client has been found to be a Convention refugee then she is not at risk of removal when she separates from her abusive spouse, even if she has yet to receive landed status.

If your client’s refugee claim is still in progress (being decided by the Convention Refugee Determination Division) and her claim is based on her spouse’s fear of persecution then she may wish to sever her claim and proceed independently. Your client should get a lawyer.

The success of her application depends on her ability to argue that she has a well-founded fear of persecution. She should mention any problems she will face if she is forced to return to her country of origin.

It is possible that the breakdown of her marriage may create new grounds for fearing persecution in her country of origin. An abused woman may fear persecution by her family, community, or society at large in her country of origin. Your client should talk to her lawyer about the impact of the separation on her refugee claim.

If your client and her spouse now have opposing interests and they’ve both used the same lawyer in the past, they each need a new lawyer.

If your client’s claim is denied, she will have two options. It is likely that she will pursue both of these options at the same time.

• First, she can apply for a risk assessment called a post claim review.

• Second, she can apply for landing from within Canada on Humanitarian and Compassionate grounds. (Application for Permanent Residence in Canada: Humanitarian and Compassionate Cases). See the section on "H&C Applications," page 31.

Her lawyer will have discussed these options with her when her refugee claim was denied. Her lawyer will also have reviewed the Refugee Board’s negative decision with a view to deciding whether it is possible to appeal.

Your client gave birth to a child while living in Canada and does not have landed status. Her spouse is a landed resident and Canadian citizen and he agreed to sponsor her. However, he is abusive. Your client wishes to separate but she is afraid she will be deported and that she will lose her child.

Under Canadian immigration laws, having a Canadian born child does not automatically give her a right to remain in Canada.

Your client has two issues to deal with:

With the help of a lawyer, your client can make an H&C application as an independent applicant. If she has a sponsorship application already in progress, refer to the section on "Women with Inland Applications in Progress," on page 13. If she has not applied, follow the guidelines in the section on "Women Who Do Not Have an Application in Progress," on page 17.

The existence of children, whether born in Canada or not, is a relevant consideration where removal from Canada may result in the mother and child being permanently divided or deprived of support.

If child custody is an issue, your client will also need a family lawyer to help her seek custody, and if appropriate child support from the child’s father. She can be doing this at the same time as she is dealing with her immigration issues. More information is available in the free booklet called, If Your Marriage Breaks Up, produced by the Legal Services Society. See page 46 for how to get a copy.

If the client herself is under the age of 19, contact the migrant coordinator of the Ministry of Children and Family Development.

It is possible that your client has a restraining order against her spouse, but is still under a deportation or removal order. Particularly if she is under an order to not remove her child from the country, she has a strong case for an independent application on humanitarian and compassionate grounds (Application for Residence in Canada – Humanitarian and Compassionate Cases). See the section on "H&C Applications," page 31. If her application is unsuccessful, she can appeal.

Your client was granted conditional landed status as an accompanying dependent under the conditions of the "Entrepreneur Program."

Entrepreneurs and their dependants are admitted to Canada on the condition that they establish and actively manage a business in Canada within two years of arrival. Your client is being abused by her spouse. She wishes to separate before they meet the business requirements. Unless she is able to start a business on her own, she will not be able to fulfil the terms and conditions of landing. She is therefore at risk of being forced to leave Canada.

Your client will need to contact the immigration officer to acknowledge the changes in her circumstances. The immigration officer has the discretion to refer the matter to an adjudicator for an inquiry. She can lose her landed status only at the inquiry level.

If she loses her landed status, your client has several options. She can return to her country of origin and apply as an independent immigrant. If this is not an option because she will encounter significant hardship upon returning to her country of origin, she can make an independent application on humanitarian and compassionate grounds (Application for Permanent Residence in Canada: Humanitarian and Compassionate Cases). See the section on "H&C Applications," page 31. It will be helpful to your client’s case to begin the divorce process and start to negotiate child custody if there are children involved. Your client should get a lawyer if she can.

Your client does not have landed status and is being abused by her sponsor. She wishes to sever the relationship with her spouse and remain in Canada. However, due to her health issues she may not be admissible under the health guidelines in the Immigration Act.

Your client should let Immigration Canada know that her health and abilities have been compromised as a result of the abuse. Immigration Canada will decide whether or not they find her circumstances compelling enough to grant her landed status even with her medical issues.

If she has yet to receive a visa waiver, she can convert her sponsorship application into an independent application in order to sever her connection with her abusive spouse (Application for Permanent Residence in Canada: Humanitarian and Compassionate Cases). See the section on "H&C Applications," page 31. If she has a visa waiver, she will have to await a decision from Immigration Canada to see if they find compelling grounds to grant her landed status.

Your client sponsored her spouse to immigrate to Canada and he is abusive. She wishes to withdraw her sponsorship and no longer be financially responsible for her spouse.

You need to find out what stage of the immigration process they are at. If your client is applying to sponsor him and he is already in Canada, it is important to know whether he has received a visa waiver. If he has not received a visa waiver yet, she can withdraw her sponsorship application.

If he has received his visa waiver, she cannot withdraw her sponsorship application and is financially responsible for him for 10 years. This cannot be changed. However, she can still divorce him.

Your client’s responsibility for him will only become an issue if he tries to collect welfare in which case the government will try to get reimbursement from your client.

If that happens, your client should write a letter to Immigration Canada explaining her circumstances and hope that when the Ministry of Human Resources seeks reimbursement for her spouse’s welfare payments, Immigration Canada will present the letter and make a case for your client.

It is possible that Immigration Canada will not advocate for your client or that the information will be lost in the system. In this case, your client will have to remake information about the abuse. You can help her advocate for herself at this point.

Keep in mind that Immigration Canada’s file on your client’s case is under the name of your client’s spouse. Therefore all documentation sent to Immigration Canada should have the sponsored person’s name on it along with the file number.

Immigrant women who have been forced into the sex trade face a number of complex issues that will differ significantly from case to case. If your client is working in the sex trade and her landed status in Canada is at risk, she should try to get a lawyer to help her with all legal and immigration matters.

H&C applications can be made through a sponsorship arrangement or as an independent application. There is a two-step decision-making process for these applications. In the first step, the applicant applies for a "visa waiver" so that she does not need to return to her country of origin to make an application for landed status. In the second step, Immigration Canada assesses the applicant for admissibility as a landed resident.

In the first stage of the assessment process, the immigration officer assesses whether there are humanitarian and compassionate grounds to exempt the applicant from the visa requirement. The immigration officer considers the information the applicant presents as well as all other information previously known to Immigration Canada.

There are no particular eligibility criteria in this stage of the application. It is helpful if your client can show two facts:

In the Citizenship and Immigration Policy Manual, immigration officers are directed to consider the following factors. Use these factors as a guide in preparing the H&C application.

Information showing there was abuse, such as:

• police incident reports

• court information regarding charges or convictions

• reports from transition houses/shelters, community or other women-serving agencies

• medical reports from doctors, hospitals, clinics etc.

A personal chronicle of the abuse indicating:

• when the abuse began

• any incidents (with as much detail as possible i.e., date, details, witnesses);

• whether the abuse has escalated

• level of fear and risk

Factors that can show establishment include:

• history and records of employment

• financial records

• documents showing that your client has integrated into the community, through being involved in community organizations, in volunteer work, or other activities

• any documents or certificates from professional, language or other study that show your client’s integration into Canadian society

Factors that can show hardship include:

• customs and culture in the applicant’s country of origin

• lack of support of relatives and friends in the applicant’s home country

• applicant’s pregnancy

• applicant has Canadian-born children

• length of time in Canada

• the sponsor will be returning to the country of origin

• the marriage or relationship was genuine

• political unrest or war in the county of origin

This is not a complete list. Your client should provide any information that she feels would be relevant and beneficial to explaining her case.

In most cases, the immigration officer will call your client in for an interview. She should take as much documentation as possible. The immigration officer will ask her questions about the information in her H&C application. She can have her lawyer with her at the interview.

As her service provider, you may be able to attend the interview. Contact the immigration officer for permission.

If your client’s application is approved for processing, Immigration Canada gives her an exemption from the visa requirement or a "visa waiver." They will then consider her for landed status.

Your client’s application may be refused if:

• there are insufficient humanitarian and compassionate grounds to process it from within Canada

• the arrangements for her care and shelter are inadequate

• she does not pass the medical or criminal record checks

They will not refund the $500 processing fee for landed status.

If your client has new information that would change the content of her application, she can reapply and pay another $500 processing fee. However, if possible, your client should extend her immigration status so that she is legally in Canada. If she cannot maintain legal status in Canada, she will have to leave Canada and apply from abroad.

When Immigration Canada approves the visa exemption, they then consider the applicant for permanent residence. To be granted landed status, the applicant must meet the admission requirements.

Although an application may be successful in the first assessment, this does not mean that the second assessment will also be successful.

Here are some of the factors that may make your client inadmissible. They may have been affected by the sponsorship breakdown:

• medical inadmissibility (danger to the public or placing undue demands on the health care system)

• receiving social assistance (welfare or hardship assistance)

• criminal charges and/or convictions

If the immigration officer uses any information that was made by someone other than the applicant, the officer must tell your client about the information and give her time to respond.

If the applicant is not successful after this second assessment, she will then have the right to appeal. For further information, see the section on "Appeal of Removal Orders," page 35.

Your client can appeal a removal order:

• if she is a landed resident or has a valid returning resident permit; or

• if she is a visa holder or Convention refugee

Under the Immigration Act, there are time limits for requesting an appeal. Your client must make a Notice of Appeal within 30 calendar days of the removal order.

Members of the Immigration Appeal Division (IAD) of the Immigration and Refugee Board (IRB) hear the appeal. The hearings are held in public and operate much like a regular court. However, the rules of evidence are somewhat more flexible and the IAD can consider any evidence it believes credible and trustworthy. When the IAD makes a decision, its members consider questions of law and fact as well as humanitarian and compassionate concerns.

The IAD can take one of three actions following an appeal hearing:

• dismiss the appeal (the appeal is rejected and the removal order is confirmed)

• allow the appeal (the appeal is successful and the removal order is cancelled)

• stay the appeal

In cases involving landed residents or anyone with a valid returning resident permit, the IAD can postpone the removal order for a certain period of time and impose terms and conditions on the person. If at the end of that period, the person has followed these conditions, the IAD may cancel the removal order. If the conditions have not been met, Immigration Canada can apply to have the stay lifted and carry out the removal.

There is often 4-5 months between the time when your client files a Notice of Appeal and the actual hearing.

Information on citizenship and immigration programs is available by using the Call Centres automated telephone service, speaking with a Call Centre agent, or going to the Immigration Canada Web site at http://www.cic.gc.ca/

The Citizenship and Immigration Canada Web site has information on Immigration Canada programs and services, application kits for download, and application kits you can order by mail.

The Call Centre’s automated telephone service is available seven days a week, 24 hours a day. It allows you to order application kits and receive general information on Immigration Canada programs. To use the automated phone service, you need a touch tone telephone.

• If you are in Vancouver, call (604) 666-2171. Agents are available Monday to Friday, 7 a.m. – 5 p.m. (PST)

• If you are in Toronto, call (416) 973-4444. Agents are available Monday to Friday, 8 a.m. – 4 p.m. (EST)

• If you are in Montreal, call (514) 496-1010. Agents are available Monday to Friday, 7 a.m. – 5 p.m. (EST)

• From anywhere else in Canada, call 1-888-242-2100 (toll-free)

Call Centre agents are available during business hours to provide information and to advise you. They cannot make decisions on applications being processed. To speak to an agent, press "0" after contacting the Call Centre.

For more information, contact your nearest legal aid office. To find the Legal Services Society nearest you, look in the white pages of your phone book under "Legal Aid – Legal Services Society" or in the yellow pages under "Lawyers – Legal Aid – Legal Services Society." You can also visit the Legal Services Society Web site at www.vcn.bc.ca/lssbc/

Your client can get legal aid if she is financially eligible and her problem is covered under the legal aid rules. Immigration problems are covered under the legal aid rules. If your client needs both a family lawyer and an immigration lawyer, she should note this on the application.

Your client is financially eligible if her household income and assets are at or below the LSS financial guidelines, which are based on the applicant’s monthly income.

For information on calculating your client’s financial eligibility, visit the Legal Services Society of BC Web site at http://www.vcn.bc.ca/lssbc/lss-legalaid/lss-incomelimits.html or contact the nearest legal aid office.

If your client wishes to apply for legal aid, she should call or visit the nearest legal aid office. She needs to take written proof of her income. Proof of income could be:

• two recent pay stubs

• a recent welfare stub

• a recent income tax return and financial statement (if self-employed)

• bank records

Also, she needs to take:

• proof of the value of her assets

• any papers she has about her case, such as court orders and other documents

A staff person at the office will ask her questions and ask her to complete a legal aid application.

• Your client must give complete and true information about her income, savings, and property (assets) and she must advise the legal aid office if her income changes.

If your client is told she does not qualify for legal aid, she can appeal. She needs to ask the legal aid office for an appeal form and mail it to the Legal Services Society as soon as possible. She can get an appeal form from her local legal aid office, or write to:

Coverage/Eligibility Reviews
Legal Services Society
1500 - 1140 W. Pender Street
Vancouver, B.C. V6E 4G1

There are also other services in British Columbia that provide legal information or advice:

Lawyer Referral Service — Canadian Bar Association B.C. Branch

The Lawyer Referral Service can recommend an immigration bar lawyer if your client needs legal help but doesn’t know where to look. A lawyer will give a 30-minute interview for $10. She can then decide if she wants to hire that lawyer. In the Lower Mainland, she can call the Lawyer Referral Service at (604) 687-3221. Outside the Lower Mainland, call 1-800-663-1919.

Law Line – Legal Services Society of BC

The law line is a legal information service for the general public provided by the Legal Resource Centre at LSSBC. When you call, you will hear a pre-recorded tape on topics people frequently ask about, including:

Law Line librarians will help you or your client with legal information questions. Law Line librarians can identify your problem, provide legal information, send out printed information, and, if necessary, give you an appropriate referral.

• Vancouver (604) 601-6100

• Outside Lower Mainland, call Enquiry BC

• From Victoria (250) 387-6121, from Outside Vancouver and Victoria
1-800-663-7867, and ask to be transferred to (604) 601-6100. You will not be charged for the call.

Law Line operates from 10:00 a.m. to 4:00 p.m. Monday to Thursday and from 10:00 a.m. to 1:00 p.m. on Friday.

Your client can apply for a Social Insurance Number by contacting a Human Resources Development Canada Office She will need to show one of the following documents; Canadian Immigration Record and Visa or Record of Landing, Confirmation of Landing Document, Canada Travel Document, Canadian Certificate of Identity or a foreign passport stamped "Permanent Resident." There is an administrative fee. Forms are also available at Canada Post offices and through many immigrant-serving agencies.

Your client can apply for employment authorization if she has made an H&C application and has been granted a visa waiver.

Your client will need to fill out an "Application to Change the Terms and Conditions or Extend Your Stay in Canada." To get a copy of the form, contact a Citizen and Immigration Canada Call Centre, or download it from the Internet: http://www.cic.gc.ca/english/coming/index.html.

Your client is not eligible for employment authorization until her application has been approved for processing.

If your client is facing financial difficulties while awaiting this approval, she can apply for Hardship Assistance through the Ministry for Social Development and Economic Security. See section on "Financial Assistance," on pp. 45. Receiving hardship assistance should not affect the likelihood that her application will be approved for processing.

However, in the second stage of the H&C application process, receiving financial assistance will negatively affect her admissibility. Therefore, if she is approved for processing, she should apply for work authorization as soon as possible and become financially self-sufficient.

If your client has applied for refugee status and no final decision has been made, she can apply for employment authorization if:

• she cannot support herself without recourse to social assistance (welfare)

• she and her dependents have completed a medical examination

• she has been fingerprinted and photographed

• she has submitted their Personal Information form to the IRB

Your client will need to fill out an "Application to Change the Terms and Conditions or Extend Your Stay in Canada."

Your client can apply for employment authorization under the category "destitute persons" if:

• she is under a removal order that has been stopped or stayed by the IRB

• she is awaiting a decision on the appeal of her removal order

Your client will need to fill out an "Application to Change the Terms and Conditions or Extend Your Stay in Canada."

The cost for this application is $150. If the application is properly completed, a letter regarding the decision should be sent to your client within 25 days.

An immigration officer may impose terms and conditions when they issue an Employment Authorization.

These may include one or more of the following:

• the type of employment in which the client may work

• the employer for whom she may work

• where she may work

• how long she may continue to work

This is the official document issued by a visa or immigration officer that allows the person to study at an educational institution in Canada.

A Student Authorization is not needed for:

• an English or French language course that is not longer than three months duration in total

• courses that are not academic, professional or vocational in nature

• self-improvement, general-interest courses such as arts and crafts

• courses included in tour packages as a secondary activity for tourists

Your client can apply for a Social Insurance Number by contacting a Human Resources Development Canada Office She will need to show one of the following documents; Canadian Immigration Record and Visa or Record of Landing, Confirmation of Landing Document, Canada Travel Document, Canadian Certificate of Identity or a foreign passport stamped "Permanent Resident." There is an administrative fee. Forms are also available at Canada Post offices and through many immigrant-serving agencies.

Your client can apply for Student Authorization if she has landed status and she has made an H&C application and has been granted a visa waiver.

Your client will need to fill out an "Application to Change the Terms and Conditions or Extend Your Stay in Canada" which is available by contacting a

CIC Call Centre or online at http://www.cic.gc.ca/english/coming/index.html.

The processing fee is $125. A letter regarding the decision will be sent to your client within 25 days.

Your client cannot apply for Student Authorization if her H&C application has not been approved for processing. She can take courses that do not require Student Authorization, as described above.

Your client can apply for Student Authorization if she is a Convention refugee or her refugee claim has been sent to the IRB. She will need to fill out an "Application to Change the Terms and Conditions or Extend Your Stay in Canada."

In addition to the requirements for all visitors, your client must provide the following documents:

For attendance at a university, college or other post-secondary institution, your client should provide a letter, registration paper, or form from the education institution that shows:

• confirmation of your client’s acceptance and/or registration as a student

• the course of study

• how many courses she will be taking and/or how many hours she will attend each week (not required if you are attending a university or college)

• intended start date and when she expects to finish the academic program

• any condition related to her acceptance or registration (when there is a condition related to her registration, she might have to show that she has met the condition before a Student Authorization can be issued)

Will she be attending a primary or secondary school? Your client should provide a letter from the school, school board, district or division responsible for the school she will be attending, showing the level of study and the date she expects to finish her studies.

If your client has children, she does not need to show a letter of acceptance to obtain a Student Authorization for her children to attend a primary or secondary school.

Your client must prove she will have enough money (in Canadian funds) to support herself while she studies in Canada. This can include:

• a bank statement or a letter from a Canadian bank showing how much money she has in her bank account (she must indicate her name and the account number)

• a copy of the letter giving the details about her scholarship or Canadian-funded educational program (such as a CIDA program)

• a letter from a person (describe the relationship to the client) who is giving her financial help, explaining the arrangements made for her expenses. (This information is protected under the Privacy Act and cannot be released to a third party without the sponsor’s consent.)

If your client’s refugee claim has gone to the Refugee Division, she does not have to give proof of financial support.

An immigration officer may impose terms and conditions on a Student Authorization. These may include one or more of the following:

• not allowed to work in Canada

• must attend the university, college or institution specified

• must attend the type of educational institution specified

If your client is landed, she is eligible for income assistance.

To find out how to apply and what the rates are, contact the Ministry of Human Resources local offices, listed in the blue pages of the telephone book.

You can also call Enquiry B.C. at:

Victoria: 387-6121

Vancouver: 660-2421

Elsewhere in B.C.: 1-800-663-7867

Or get the information on-line at
http://www.sdes.gov.bc.ca/programs/ispocty.htm

If your client is not landed she is not eligible for Income Assistance, but can apply for Hardship Assistance. Hardship Assistance is issued for only one month at a time and eligibility must be re-established every month. Your client will not have to pay back the money. (Note: an accepted Convention refugee qualifies for income assistance prior to receiving landed status.)

To find out how to apply and what the rates are, contact the Ministry of Human Resources local offices, listed in the blue pages of the telephone book. Or get the information on-line at

http://www.sdes.gov.bc.ca/programs/ispocty.htm

Your Welfare Rights is a free guide to income assistance or hardship assistance under BC Benefits. To order, contact:

Distribution, Publishing Program

Legal Services Society

1500 - 1140 W. Pender Street
Vancouver, B.C., Canada V6E 4G1
Fax: (604) 682-0965

Email: [email protected]

This is also the contact to get the free LSS booklets, If Your Marriage Breaks Up, and Sponsorship Breakdown.

You can also download Your Welfare Rights from the Legal Services Society Web site at www.vcn.bc.ca/lssbc/lss-lis/lsspub-welfare.html.

In many cases, your client will require interpretation and/or translation. The following section provides information about the cost of these services and a list of programs in British Columbia.

In most cases there is a cost associated with interpretation and translation services. Fees vary from agency to agency. To find out about fees, contact the specific agencies that offer services in your client’s language.

In certain cases, there is no cost for interpretation and translation services.

Whenever your client meets with her legal aid lawyer or her lawyer requests translation of a document, the interpretation and translation is paid for by the Legal Services Society. There is no cost for your client or for your agency if you are requesting the service on your client’s behalf.

The Ministry of Human Resources provides interpreters to clients who are on income assistance and are meeting with a financial aid worker.

If your client is appealing a removal order to the Appeal Division of the Immigration and Refugee Board, she has a right to an interpreter at no cost. If your client is facing an immigration inquiry she has the right to an interpreter, at no cost.

When the client is appearing before the Immigration and Refugee Board (IRB) as a refugee claimant, the IRB pays for interpretation or translation services.

The following agencies provide interpretation and/or translation services in many languages. However, this list does not cover all languages. To enquire about a languages not listed below, call the agency nearest to you and ask them about services that are available in other languages.