Immigration Developments Kicking Off 2024

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The New Year has brought with it developments in the Courts and at Immigration, Refugees and Citizenship Canada (“IRCC”) that will shape immigration and citizenship policy for years to come. Here’s what you need to know.

Second-Generation Born Abroad Citizenship Rule Deemed Unconstitutional

Along with naturalization, Canada provides for citizenship by birth inside Canada, and citizenship by birth outside to a Canadian parent. However, since April 2009, the Citizenship Act has imposed a cut-off of one generation only for those born outside of Canada to a Canadian parent, whereby a child born outside of Canada to a Canadian citizen parent would be a Canadian citizen but could not pass on citizenship in the future should they have a child born outside of Canada. This “second-generation born abroad rule” meant that if you were born outside of Canada to a Canadian parent who had been born outside of Canada, you were not a Canadian citizen. That all changed in December.

As a result of a challenge at the Ontario Superior Court, the second-generation born abroad rule was deemed unconstitutional: Bjorkquist et al. v. Attorney General of Canada, 2023 ONSC 7152 (CanLII).

The Court said that it discriminates on the prohibited grounds of national origin and sex. The rule particularly affected Canadian women who were born outside of Canada and were living abroad, as they could not pass their citizenship onto their children. It forced pregnant women living outside Canada who were the “first-generation born abroad”, to make the difficult decision of choosing between their own health, job, and finances by giving birth outside Canada, or ensuring their child would be a citizen by returning to Canada to give birth weeks or even months in advance of their due date. Consequently, this rule was deemed to violate another constitutional right: the right to enter, remain in, and leave Canada.

The striking down of this provision raises several questions. The Court has provided the government with 6 months to amend the rule in line with its decision or it will be fully invalidated. It is now up to the government to respond. Will they appeal the decision? Will they amend the provision in the Citizenship Act? Will the provision be fully removed from the Citizenship Act? Stay tuned to see how it all plays out.

Conflict in the Middle East – Israel, Gaza, the West Bank

Many Canadians and their families are deeply affected by the ongoing conflict in Israel and the Palestinian Territories, and the war between Israel and Hamas. As a result, IRCC has announced the following measures:

  • Family members in Gaza – Beginning January 9th and for a period of 1 year, IRCC will accept a total of 1,000 temporary resident visa applications for the relatives of Canadian citizens or permanent residents (“PRs”) who are in Gaza. The relative must hold a Palestinian Territory passport, and must be a spouse, common-law partner, child (regardless of age), grandchild, parent, grandparent, or sibling of the Canadian citizen or Permanent Resident (“PR”). The Canadian citizen or PR must provide their relative with orientation to life in Canada and financial support for 1 year.
    • Those who came to Canada from Gaza following an assisted departure may be eligible for time-limited medical coverage under the Interim Federal Health Program.
  • Israeli nationals and Palestinian passport holders who are the immediate family members of Canadian citizens or permanent residents, and who are currently in Canada with valid status after leaving Israel or the Palestinian Territories on or after October 7, 2023, are eligible for a fee-exempt open work permit or study permit.

Conflict in Sudan

The ongoing conflict in Sudan continues to have profound effects on Sudanese nationals in Canada, as well as many Canadians and their families. IRCC has announced the following measures in response:

  • Family members in Sudan – Beginning February 27th and for a period of 1 year, IRCC will accept a total of 3,250 permanent residence applications for the relatives of Canadian citizens or PRs in Sudan. The relative must be a spouse, common-law partner, child (regardless of age), grandchild, parent, grandparent, or sibling of the Canadian citizen or PR. The Canadian citizen or PR must meet a financial requirement and must provide their relative with orientation to life in Canada and financial support for 1 year.
  • Until October 27, 2024, Sudanese nationals in Canada as visitors, workers, students, or temporary resident permit holders can apply to extend their status or change their temporary resident status (e.g. visitor to worker) for free.
  • Sudanese nationals with an immediate family member who is a Canadian citizen or PR can apply for an open work permit, study permit, or PR through family sponsorship if they meet these requirements:
    • Both the Sudanese citizen and the Canadian citizen or PR left Sudan on or after April 15, 2023;
    • The Sudanese citizen entered Canada before July 15, 2023;
    • The Sudanese citizen is in Canada when filing the application and when a decision is made.

Employers Must Ensure Their Foreign Workers Are Paid the Prevailing Wage

IRCC has mandated that employers conduct wage reviews for foreign workers on LMIAs every year. The wage must continue to meet the prevailing wage as posted on Job Bank. Prevailing wages on Job Bank are updated in the fall, and employers must do their wage review by January 1 of the following year. If a wage is modified, this does not need to be reported to Service Canada if the modified wage meets the prevailing wage.

This policy came into effect on January 1, 2024, so now would be a good time for employers of foreign workers on LMIA-based work permits to check the Job Bank and ensure that their foreign workers are being paid the prevailing wage for their occupation and region of work.

International Students

IRCC has increased the funds requirement for a foreign student from $10,000 to $20,635. This funds requirement is in addition to a student’s first year tuition and travel costs.

Previously, as part of efforts to reform the immigration system for international students, IRCC also announced that certain learning institutions will be recognized as providing top-quality services and support, including housing, to international students. We will have to see how this “trusted learning institution” system is implemented, but it is likely that many private colleges which rely on international students will not make the list.

IRCC has also announced that international students will continue to be able to work for more than 20 hours per week while doing full-time studies until April 30, 2024.

The COVID-era measure allowing international students to count time spent studying online towards the length of their future post-graduation work permit, as long as the online study was less than 50% of the program, has been extended to students who begin a program of study before September 1, 2024.

If you have questions about any of these initiatives, we are happy to advise. Our Canadian immigration legal professionals can be reached by phone (416 368 1111) or via email: caruso@cilf.ca; fagan@cilf.ca; bonisteel@cilf.ca; ali@cilf.ca; mukherjee@cilf.ca; garciafialdini@cilf.ca.