CIMM Committee Report

Dissenting Report of the New Democratic Party

Standing Committee on Citizenship and Immigration (CIMM)

Preamble

The NDP believes that the immigration system is about nation building. It is based on the principal that if you are good enough to work/study here, you are good enough to stay. To build our nation, our immigration policies need to be fair and equitable and value the contributions of all workers from different social and economic classes. Landed status on arrival should be the standard of practice and immigration streams should be made available to the full range of workers that are required in Canada’s robust economy. Yet successive governments have moved away from a balanced immigration system and have opted to prioritize high skill professionals. As such, many of the other skill sets needed to fuel Canada’s economy are left unmet. To meet the labour skill shortage in those areas, both Conservative and Liberal governments have relied on extensive expansion of the Temporary Foreign Workers Program (TFWP).  

Introduction 

The House of Commons Standing Committee on Citizenship and Immigration (the Committee) decided on 1 February 2021 to study the use of the Labour Market Impact Assessment under the Temporary Foreign Worker Program, including its administrative costs and processing timelines, impacts of the COVID-19 pandemic, the prevalence of labour shortages throughout the country with attention to municipalities and rural communities all in accordance with the Canada-Quebec Accord, the state of pilot projects in addressing labour shortages, the eligibility criteria for permanent residence and impacts on caregivers under the two pilot projects Home Child Care Provider Pilot and Home Support Worker Pilot, and possible solutions to addressing labour shortages. The Committee heard from 58 witnesses. Given the vulnerabilities and repeated reports of poor living conditions and abuse, New Democrats are concerned about the low ratio of representation from organizations representing employees and migrant workers’ rights. Among the 58 witnesses invited to testify at the Committee, 7 witnesses were directly representing organizations which focused on migrant workers’ rights, as along with 1 settlement worker, 4 lawyers and 1 union representative; in comparison, there was a heavy focus from the perspective of employers with 31 witnesses largely representing employers. There were also 9 government witnesses. This make up was reflected throughout the structure of the report. As such, recommendations made by the Committee were skewed towards the views of employers. While it is important that employers are consulted, the general lack of consideration for the rights of workers that are reflected in the recommendations made the Committee’s report deeply concerning. It is the NDP’s view that the report is deeply flawed from the outset due to the imbalance of witnesses that were consulted. 

Despite this structural concern, the message from witnesses was clear. Whether you are the employer or a representative for migrant workers, the current Temporary Foreign Worker Program is fraught with problems. Many employers raised concerns around the impact of the labour shortage for their business and the challenges they faced with the LMIA process. From the migrant workers perspective, witnesses raised concerns around the power imbalance which effectively serve to facilitate abuse and exploitation.  

With respect to the recommendations offered, representation from employers tended to call for measures that further expand or relax the use of TFWP and advocates for migrant workers call for action focused on securing the rights of the workers.  

Expansion of the TFWP

To illustrate the magnitude of the expansion of the program, Mr. Syed Hussan, Executive Director, Migrant Workers Alliance for Change (MWAC) shared this observation with Committee members:  

Just 20 years ago, there were 60,000 temporary work permits in Canada. Since then, there's been a 600% increase to over 400,000 today. There are 1.6 million people in the country, or one in 23 people, who are non-permanent residents. That's one in 23 people. In the communities that many of you are in, that percentage is much higher. That means that this many people don't have access to labour rights, health care, education and other protections and can't protect themselves. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

Mr. Derek Johnstone, Special Assistant to the National President, United Food and Commercial Workers Union Canada, further reinforced this with this comment: 

I would just start by stating a fact that when the seasonal agricultural worker program was established in Canada in 1966….the grand total of temporary foreign workers in Canada was 256. Now it's upward of 400,000. (CIMM, Evidence, 2nd session, 43rd Parliament, 21 April 2021)

He further added that: 

There's this acceptance that the only way to solve labour market challenges in Canada is to open the floodgates to temporary foreign workers who never have the opportunity to become full citizens of this country. We need to abandon that immediately, and we need to start looking at permanent immigration while at the same time properly investing in domestic labour sources as part of a larger strategy…. (CIMM, Evidence, 2nd session, 43rd Parliament, 21 April 2021) 

Mr. Hussan bluntly said: 

The real objective of the LMIA is to provide a veneer of legitimacy to Canada’s employer-restricted work permit programs, and employer-restricted programs are a system of indentured work. Strip away the talk of protecting Canadian and foreign workers and you find a system that ensures that racialized, low-wage workers are made highly exploitable for sectors that seek to generate massive profit. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021)  

Power Imbalances, Abuses and Exploitation 

In expanding the use of temporary foreign workers and denying migrant workers the rights that come with landed status and ultimately citizenship, Canada is perpetuating a system that has an inherent imbalance of power between the employer and employee.  

This sentiment was echoed by multiple witnesses. As Mr. Hussan stated: 

By denying migrants the rights that come with citizenship, laws and lawmakers are tipping the scale in favour of abuse, exploitation, exclusion and death. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021)  

Mr. Johnstone also noted that: 

A lot of folks are in a situation where they're facing some abusive treatment by employers….going home is not really an option for them. Not only is the money they earn in Canada needed to support their families back home, but they may also owe it to somebody, so they have to stay here. (CIMM, Evidence, 2nd session, 43rd Parliament, 21 April 2021) 

Mr. Shaitan Singh Rajpurohit, Chemical Machine Operator, United Refugee Council Canada, noted that: 

Precarious migrants and refugee claimants often work in health and social services; in food production, processing and distribution; and in security services and in building maintenance. Many are also key to maintaining computer systems, factory equipment and industrial machinery. Because of their expired, precarious or temporary immigration status, many of them are abused by unscrupulous employment agencies and employers, and they are living in constant fear of losing their jobs or being deported from the country. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

Mr. Hussan asked Committee members to: 

Take a moment right now to put yourself in the shoes of a migrant worker hired through the LMIA system. If you were in a low-wage job and you could be fired, made homeless because you live in employer-provided housing, couldn’t immediately move to another job because your permit bars you from doing so, and if you could not return in the future to the country where you worked because employers have control over who gets invited back, would you speak up about your exploitation?  Now think about it inversely. If you were an employer and you knew all this, would you take shortcuts, push your workers harder, and in the worst cases carry out wholesale exploitation and discrimination? (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

In June, a report entitled “Unheeded Warnings: COVID-19 & Migrant Workers in Canada” was released by MWAC. This reported outline horrific abuses experienced by migrant workers. The report identified a whole host of concerns including but not limited to verbal abuse, threats, racism, pay violations, inhumane and substandard housing conditions, insufficient food, a lack of cleanliness and adequate supplies, violation of labour rights, lack of access to health care, increased surveillance and lack of mobility. Sadly, this was not the first report about the plight of migrant workers. As the MWAC’s report noted: 

Over the decades, there have been countless reports, publications, testimonials, and media stories in which migrant workers have raised concerns about how Canada’s temporary immigration system breeds abuse and exploitation. These warnings have been ignored. As COVID-19 ravaged communities across Canada, migrant workers again raised the alarm with many federal and provincial agencies or liaison officers. The Migrant Rights Network - Canada’s largest migrant justice coalition - wrote several letters to federal and provincial agencies outlining concerns from migrant workers. All were ignored. (Unheeded Warnings: COVID-19 & Migrant Workers in Canada, 8 Jun 2020, p.6) 

The pandemic has put a spotlight on issues that have long persisted but were routinely swept under the rug. Mr. Hussan advised the Committee that since the release of the report: 

I can tell you that a year later we are in not the same crisis but a much deeper crisis. The housing conditions are bad, if not worse. The labour conditions are the same….We are now in a third wave. People keep losing work, and people keep facing further exploitation. Either there are no vaccines or if there are vaccines, it's coercive. Last year when I was at committee, I called it ‘a human rights catastrophe’. We had migrant and undocumented people in conditions of great suffering. Now I'm at a loss for an adjective. The federal government has made minor reforms. Twenty-seven thousand people were given permanent resident status, but only if they had high-wage work experience, which doesn't exist during COVID for most people. The low-wage workers are the essential workers. They are the construction workers, the cleaners, the health care workers, the delivery workers, the retail workers and the workers in grocery stores. Those are the people we rely on. Those are the people we call ‘essential’, but those are the people we deny permanent residency in this country.  (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

Ms. Maria Esel Panlaqui, Manager, Community Development and Special Projects, The Neighbourhood Organization (TNO) also indicated that abuse and exploitation continues: 

There continue to be many abusive and inconsiderate employers who force these workers to work long hours without compensation. Some employers do not allow migrant caregivers to leave the residence, not even for a walking exercise that will reduce their stress level, and many caregivers simply have no time for themselves. Because of their precarious status, caregivers cannot advocate for better working conditions. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

She further elaborated by noting: 

It's the precariousness of the workers' situation that makes it hard for them to assert their rights. Even with sectoral work, we would assume that there still are workers who are intimidated and scared to assert their rights and leave their employers, because they need to have connections, for example, to find new employers. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021)  

Without permanent status, these vulnerabilities will persist, resulting in large parts of sectors where health and safety standards become harder to enforce. As noted by Mr. Johnstone: 

The only way that changes is if these folks have status—these folks become permanent residents on track to be Canadians. That's the only way to ameliorate vulnerability and precarity in the sector, or else we'll still hear these stories on a regular basis. (CIMM, Evidence, 2nd session, 43rd Parliament, 21 April 2021) 

Mr. Hussan indicated that: 

Migrant workers do not have direct, enforceable rights under LMIA. There is no legislation that governs enforcement and no court or legal process to turn to for workers to denounce violations of their rights. Neither is there any meaningful mechanism for ESDC to ensure that workers receive reparations for violations of their rights. All that exists is a tip line, but by law, ESDC is barred from sharing the fact of inspections, and even results of inspections, with the workers who make the complaint. Most inspections are pre-announced, and rarely do they result in increased employer compliance, never mind better worker protections. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

Even in the face of such damning testimony, while the report looks at ways to expand the use of temporary foreign workers, it does little to address the precariousness of the situations that many migrant workers are faced with. No recommendation was provided to address the fundamental need to ensure migrant workers have equal access to the same fundamental rights as other Canadian residents by addressing the power dynamic created by the temporary status. 

During the Committee study on the Impact of COVID-19 on the Immigration System, Mr. Raj Sharma, managing partner at Stewart Sharma Harsanyi, asserted that: 

COVID-19 has demonstrated the importance of front-line workers. During this pandemic we continue to exploit and put migrant agricultural workers and new immigrants in harm's way. Persons of colour and new immigrants are disproportionately affected by COVID-19 because they are also disproportionately on the front lines as health care workers and essential workers in transit and in meat and agricultural processing. These workers are not disposable. (CIMM, Evidence, 2nd session, 43rd Parliament, 6 November 2020) 

New Democrats acknowledge that not all employers are abusive. However, there remains a jarring gap in protections for migrant workers that place them in a much more vulnerable situation compared to counterparts with permanent status or citizenship in Canada. Furthermore, as demonstrated plainly by the pandemic, the simple fact of the extreme power dynamic creates a situation where migrant workers are afraid to raise concerns for fear of reprisals even among the many responsible employers. Additionally, migrant workers have reported inconsistencies in having employment insurance claims approved when compared to their colleagues, even though they’ve all paid EI premiums. This further exacerbates the second-class treatment of migrant workers. Without permanent status, these vulnerabilities will persist, resulting in large parts of sectors where health and safety standards become harder to enforce. 

Mr. Hussan called on the Committee to: 

…be part of remaking a fairer food system and a just care economy. This fair society must include full and permanent immigration status for all migrants, including farm workers, care workers, students, refugees and undocumented people in Canada today and must grant landed status on arrival for all migrants in the future. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

Virtually all other witnesses who represented the rights of migrant workers are in support of the call for status for all. As pointed out by Mr. Johnstone: 

The only way that changes is if these folks have status—these folks become permanent residents on track to be Canadians. That's the only way to ameliorate vulnerability and precarity in the sector, or else we'll still hear these stories on a regular basis. (CIMM, Evidence, 2nd session, 43rd Parliament, 21 April 2021) 

The NDP is therefore putting forward the following recommendations.

Recommendation 1: 

That Immigration, Refugee and Citizenship Canada support the rights of migrant workers by regularizing undocumented workers and those who are out of status.  

Recommendation 2: 

That Immigration, Refugee and Citizenship Canada adopt the policy of status for all and grant migrant workers landed status on arrival. 

Caregivers

With respect to caregivers in particular, the motion of this study explicitly called for a focus on pilot programs, including the “impacts on caregivers under the two pilot projects Home Child Care Provider Pilot and Home Support Worker Pilot.” Despite this, the report failed to address any recommendations that would have an impact on the precarious status of caregivers.

The main recommendation made by the Committee in the main report directed at “preventing abuse” is to make a broader PR “pathway,” which does not change the power dynamic that creates vulnerabilities and allows for situations of abuse. Most Caregivers are already accessing PR pathways, which were recently revamped multiple times, yet the power imbalance and precarious situations persist because they do not get at the core issues that create the vulnerabilities in the first place. It is important to note that the vast majority of the caregivers are women of colour who come to Canada at great personal sacrifice. Ms. Jennifer Rajasekar, Manager, Newcomer Support Services, TNO, said: 

For decades, Canadian families have relied on foreign caregivers to look after their children and elderly and support Canadian families. Migrant caregivers, by extension, support the Canadian economy. Considering the vital support these caregivers provide and the personal sacrifice they make, they deserve respect, dignity and compassion. Please don't make it more difficult for them to come here and take care of Canadian families….the program continues to be problematic insofar is it retains the temporary nature of the system and therefore doesn't address the precariousness of these workers. Further, the current pathway to permanent residency is characterized by restrictive requirements that continue to present significant barriers to caregivers. Although we have previously stated our position on the residency status for caregivers, it bears repeating that we believe that addressing the issues inherent in the program requires that migrant workers be provided landed status upon arrival. The permanent solution is permanent residency. By doing this, caregivers and their families would be able to more fully participate and contribute to Canadian society. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

In comparing the previous caregiver program to the current pilots, Ms. Nicole Guthrie of Don Valley Community Legal Services highlighted this issue during the Committee study on the Impact of COVID-19 on the immigration system:  

The language program is an issue…. The bridging open work permit is not a bridging open work permit when applicants have to wait a year for their work permits to be processed….We have a lot of interim caregivers and pilot project caregivers who have applied for permanent residence but have not been able to receive work permits. Under the previous live-in caregiver program, once an applicant had submitted an application, they were issued a work permit. Our clients are stuck in limbo. A lot of them do not have work permits and cannot move to new employers because they've been impacted by COVID. (CIMM, Evidence, 2nd session, 43rd Parliament, 30 November 2021)  

While TNO indicated that landed status on arrival is needed to address the conditions that allow for the dynamics that promote abuse due to the temporary nature of the system, as an immediate interim measure while working towards status for all, specific and immediate steps can be taken to address some of the current barriers to PR. To this effect, TNO endorsed the MWAC report entitled Behind Closed Doors: Exposing Migrant Care Worker Exploitation During COVID-19. New Democrats are therefore proposing that IRCC fully implement the suggestions on the reinstatement of the previous caregiver interim pathway with reduced requirements as detailed in MWAC’s report with a modified reinstatement of the Interim Caregiver Program, including bringing down the work experience requirement to match the Canadian Experience Class at 12 months, and allowing for care work in either child care or high medical needs streams to count towards the requirement. 

Recommendation 3: 

That Immigration, Refugee and Citizenship immediately adopt and implement the recommended framework for the caregiver program proposed in the Migrant Workers Alliance of Canada report entitled Behind Closed Doors: Exposing Migrant Care Worker Exploitation During COVID-19 as an interim measure while actively working towards a system of landed status on arrival. 

Processing Delays

In terms of processing of applications, TNO pointed out in their written brief that:  

Data shows applications were moving slowly even before the COVID-19 lockdowns reduced the immigration department’s processing capacity last year. Due to the COVID-19 pandemic, the IRCC processing time has slowed to a concerning level. Most migrant caregivers are concern with their status, especially for those with Implied Status. According to a recent article in the Toronto Star, ‘there’s a backlog of at least 9,100 applications for permanent residence. That matches the kind of numbers that government saw back in 2017, when the processing time was known to be as long as five years.’ (Source: https://www.thestar.com/news/canada/2021/03/27/nanny-state-canada-has-left-its-foreign-caregiversin-a-stalled-systemthats 

Many workers who applied in 2020 are still waiting for notifications that their application are complete. Applications could still be returned for minor non-compliance, and clear instructions to officer to exercise flexible accommodation and process applications should be issued, otherwise applications would be returned after many months and caregivers who otherwise would benefit from implied status would become out of status. Indeed, many advocates are worried about the future of Canada’s Caregiver Program. Many feel that the restrictive work, education and language requirements may end up slowly phasing out the program. Referring to the same Toronto Star article, “for over an 18-month period, not a single work permit was issued under two new pilot programs. According to the government data, the immigration department received 1,055 new work permit applications under the recent pilot programs in 2019 and 2020 (up to November). Only five were processed: four were withdrawn and one was refused. (The Neighbourhood Organization, Brief, 5 May 2021, p. 3) 

Given these backlogs, and the pervasiveness of the backlogs across nearly every immigration stream highlighted during the Committee report on the Impact of COVID-19 on the Immigration System, the NDP recommends that more resources be allocated to address these backlogs. 

Recommendation 4: 

That Immigration, Refugee and Citizenship Canada greatly increase resources to address backlogs created by COVID-19, address the lack of work permits issued under the caregiver pilots, prioritize processing for applications of migrant workers currently under implied status, prevent the return of applications due to minor non-compliance and issue clear instructions to officers to exercise flexible accommodation in the processing of applications. 

Language Test Requirements

Another issue that was brought up repeatedly by witnesses are the increasingly strict language requirements. While the CIMM report acknowledged this several times in the main report, they failed to provide any recommendations to address it.  As indicated by Ms. Rajasekar: 

… starting in 2014, the new pathways program mandated that caregivers meet a higher official language proficiency benchmark to qualify for permanent immigration to Canada. This created significant barriers for many caregivers in accessing permanent resident status. They are calling on the government to remove the requirement for one year of Canadian post-secondary education; and remove the English language test prior to permanent residency. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

The fact is that migrant workers have demonstrated they are able to communicate effectively to accomplish their work. Settlement worker Ms. Vilma Padaguan noted the differential treatment and discriminatory effect that the current differences in test requirements have: 

I find the education and English criteria very discriminatory. If you notice, the agri-food immigration pilot program and the Atlantic program are in the low-skilled level and NOC C category, the same as for caregivers, but these two pilot programs require only secondary education, whereas the caregiver program requires at least one year of post-secondary education. The two pilots require an English level of only CLB 4, whereas caregivers are required to have CLB 5. Most of these caregivers are women, women of colour and women from Southeast Asian countries. (CIMM, Evidence, 2nd session, 43rd Parliament, 26 April 2021) 

Ms. Palanqui also added: 

I think all we have to apply here is the principle of “good enough to work” and “good enough to stay”. These workers are able to provide care and work. These requirements are additional layers of barriers that are not necessary and are definitely not connected to their ability to provide work. I think they should be eliminated. (CIMM, Evidence, 2nd session, 43rd Parliament, 12 April 2021) 

These concerns were also shared in MWAC’s report Behind Closed Doors: Exposing Migrant Care Worker Exploitation During COVID-19. Therefore, New Democrats support MWAC and TNO’s call and propose the following recommendation: 

Recommendation 5: 

That Immigration, Refugee and Citizenship Canada eliminate the English language test prior to permanent residency for migrant workers. 

Accountability Measures

In the Committee’s previous study on the impact of COVID on the immigration system, several witnesses also called for the creation of an ombudsperson to support those who are going through the immigration process. Beyond being a point where IRCC applicants could get information and resolve disputes with IRCC, Dr. David Edward-Ooi Poon, founder of Faces of Advocacy, suggested that an ombudsperson would also be able to provide a general review function for IRCC activities. This is not unlike the structure of the Civilian Review and Complaints Commission, who are tasked with processing both complaints and can initiate systemic reviews in order to actively propose recommendations on how to create a fairer process and protect the fundamental human rights of those who come to Canada. Therefore, to increase transparency and accountability in the immigration system, the NDP would like to reiterate the following recommendation from the report on the impact of COVID-19 on the immigration system. 

Recommendation 6: 

That the Government of Canada introduce legislation to create an Immigration Ombudsperson to oversee Immigration, Refugees and Citizenship Canada and to receive complaints 

Conclusion

New Democrats are deeply concerned with the lack of consideration of measures to address the vulnerabilities for migrant workers that have been put in the spotlight by the pandemic. The Government of Canada has repeated made the acknowledgement that they are essential, yet they are treated as second class. The focus of the committee’s report has been primarily on perpetuating the reliance on temporary workers while failing to recommend measures that would meaningfully prevent the power imbalances that create the vulnerabilities that migrant workers face in the first place, including those who are currently already on a pathway to PR. The temporary nature of Canada’s approach to foreign workers is an issue and speaks to the importance of landed permanent status on arrival. This is not a new concept and was Canada’s approach to immigration over 40 years ago. Until this is addressed, workers will remain vulnerable to abuse with limited recourse.