Temporary foreign worker programs, restrictions of rights and freedoms and systemic abuses: policy alternatives deserving serious consideration

1
Temporary foreign worker programs, restrictions
of rights and freedoms and systemic abuses
policy alternatives deserving serious
consideration
11th Canadian Metropolis Conference Calgary,
March 20 2009

• Eugénie Depatie-Pelletier
• Law - University of Montréal
• Interuniversity Research Center on Globalization
  and Work
• REDTAC-(Im)migration/CÉRIUM
• Eugenie.pelletier_at_umontreal.ca

2
Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

• Temporary foreign worker programs
• 2. Administrative restrictions
• 3. Restrictions of rights and freedoms
• 4. Policy alternatives

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Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

• Temporary foreign worker programs

1.1 Programs without work permit 1.2 Programs
with open or semi-open work permits 1.3 Programs
with employer-tied permits
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• 1.1 Programs without work permit

Section of IRPA Regs. and special programs
1 R186(a) and R187Business visitor
2 R186(b)Foreign government representatives
3 R186(c)Family members of foreign government representatives
4 R186(d)Members of the armed forces
5 R186(e) Foreign government employees
6 R186(f)On-campus employment
7 R186(g)Performing artists
8 R186(h)Athletes and trainers
9 R186(i)Press correspondents and journalists
10 R186(j)Speakers
11 R186(k)Convention organizers
12 R186(l)Members of the clergy
16 R186(m)Judges and arbitrators
13 R186(n)Examiners and evaluators
14 R186(o)Expert witnesses and investigators
15 R186(p)Health care students
16 R186(q)Civil aviation inspectors
17 R186(r)Aviation accident or incident investigators
18 R186(s)Crew members
19 R186(t)Emergency status
20 R186(u)Implied status
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• 1.2 Programs with open or semi-open work permits

Work permit type Qualifications visées Program category CIC code Foreign worker category visés
"Open" work permit Foreign workers without particular skills Immigration or protection applicants already in Canada S61 Refugee claimants 1
"Open" work permit Foreign workers without particular skills Immigration or protection applicants already in Canada A 70 Regularization spousal grounds 2
"Open" work permit Foreign workers without particular skills Immigration or protection applicants already in Canada A 70 Regularization humanitarian grounds 3
"Open" work permit Foreign workers without particular skills Immigration or protection applicants already in Canada A 70 Workers Live-in caregivers 4
"Open" work permit Foreign workers without particular skills Immigration or protection applicants already in Canada A 70 Refugees awaiting permanent residence 5
"Open" work permit Foreign workers without particular skills Other residents with temporary status C25 Foreign students off-campus 6
"Open" work permit Foreign workers without particular skills Other residents with temporary status C43 Foreign students post-graduate employment 7
"Open" work permit Foreign workers without particular skills Other residents with temporary status H81 "Destitute" ( ?-déchu) students 8
"Open" work permit Foreign workers without particular skills Other residents with temporary status S62 Persons without status (moratorium on deportation) 9
"Open" work permit Foreign workers without particular skills Other residents with temporary status H82 Others (Holders of a temporary resident permit of at least 6 months) 10
"Open" work permit Foreign workers without particular skills Other residents with temporary status C41 Spouses of foreign workers 0,A,B 11
"Open" work permit Foreign workers without particular skills Other residents with temporary status C42 Spouses of foreign students 12
"Open" work permit Foreign workers without particular skills international agreements C 21 Unskilled Foreign workers (18-35 years old) - selected countries 13
Semi-open Work permit Foreign workers without particular skills international agreements C 21 Unskilled Foreign workers (18-35 years old) - selected countries 14
Semi-open Work permit Foreign workers without particular skills international agreements C50 Employees of religious or charitable non-profit organizations 15
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements C20 Position under a reciprocal agreement 16
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements C22 Teachers (exchange) and invited speakers 17
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements T10 International agreements 18
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements T21 NAFTA/CCFTA negotiators 19
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements T22 NAFTA/CCFTA investors 20
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements T23 NAFTA/CCFTA professionals 21
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements T24 NAFTA/CCFTA intra-company transfers 22
Semi-open Work permit Programs for businesspeople and/or skilled workers international agreements T33 GATS professionals 23
Semi-open Work permit Programs for businesspeople and/or skilled workers CIC initiatives C12 intra-company transfers 24
Semi-open Work permit Programs for businesspeople and/or skilled workers CIC initiatives C13 emergency repairs (?-réparations d'urgence) 25
Semi-open Work permit Programs for businesspeople and/or skilled workers CIC initiatives C10 Canadian interests important advantage 26
Semi-open Work permit Programs for businesspeople and/or skilled workers CIC initiatives C11 entrepreneurs 27
Semi-open Work permit Programs for businesspeople and/or skilled workers CIC initiatives C30 research, teaching or training 28
Semi-open Work permit Programs for businesspeople and/or skilled workers CIC initiatives C44 Post-doctoral fellows and subsidized researchers (?-chercheurs bénéficiaires de subventions) 29
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• 1.3 Programs with employer-tied permits

Level of competence associated with the foreign worker position FWP integration regime
0,A,B (managers, professionals and skill trades) With HRSDC-CIC work permit linked to a specific employer 1
C,D ( low-skilled  workers) Workers in live-in caregiver positions (LCP) 2
C,D ( low-skilled  workers) Workers in C or D positions in the agricultural/food industry sector from Mexico, Jamaica, Barbados, Trinidad Tobago, or a member of the OECS (SAWP) 3
C,D ( low-skilled  workers) Workers in a C or D position (other than participants in LCP or SAWP) 4
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Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

• Temporary foreign worker programs

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Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

1. Administrative restrictions

1 Interdiction to work for another employer
2 Obligation to live with his/her employer
3 Interdiction to freely change status in Canada (transition to permanent status)
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1. Administrative restrictions

IF UNDER WORK PERMIT 1. No access to integration
programs 2. No pro-active monitoring of employers
and agencies (most provinces) --gt Authorized in
sector where collective bargaining is illegal --gt
Authorized in sector not covered by workers
compensation IF UNDER EMPLOYER-TIED WORK
PERMIT 3. No right to work for another
employer IF UNDER EMPLOYER-TIED LOW-SKILLED WORK
PERMIT 4. No right to ask freely for permanent
status 5. Obligation to live on the employers
property 6. No right come with spouse and
children
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1. Administrative restrictions

3. No right to work for another employer 4. No
right to ask freely for permanent status IF
FIRED - No right to work - Risk of deportation
(No access to impartial hearing) - Risk of
loosing access to permanent status - No acces to
healthcare - No access to workers compensations
- No access to legal aid - No acces to social
security AND/OR - No access to EI (?)
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Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

1. Administrative restrictions

3. Interdiction to work for another employer
4. Obligation to live with his/her employer
5. Interdiction to freely change status in Canada (transition to permanent status)
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Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

• Administrative restrictions
• N.B. According to the U.N. Convention against
  practices similar to slavery
• IF
• (1) Bound by law to labour for another person
• (2) Bound by law to live on the property of that
  person AND
• (3) Not free to change his legal status
• THEN
• The person is under a servile status similar to
  the status of slave

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Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

• 2. Administrative restrictions
• Canada's residents under temporary status
• new admissions in 2006 and administrative
  restrictions

1 Yes No No No Yes Yes Yes Yes No No No No
2 Yes (No) No Yes Yes Yes Yes Yes Yes (No) No No
3 (Yes) No No (Yes) (Yes) No No Yes Yes No No No
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• 3. Restrictions of rights and freedoms

Administrative restrictions Documented cases Charters rights and freedoms restricted (Quebecs Charter)
Interdiction to work for another employer - No complain of the denial to go to the hospital deportation in case of unionization art.7 right to liberty and security of the person
Interdiction to work for another employer - No complain of the denial to go to the hospital deportation in case of unionization art. 2 freedom of association
Interdiction to work for another employer - No complain of the denial to go to the hospital deportation in case of unionization (art. 4 right to dignity)
Obligation to live in a residence of the choice of the employer No complain of the denial of the right to have visitors - No complain of the denial of the right to leave the employers house - Deportation after having slpet in the house of a community worker art.7 right to liberty and security of the person (art. 1)
Obligation to live in a residence of the choice of the employer No complain of the denial of the right to have visitors - No complain of the denial of the right to leave the employers house - Deportation after having slpet in the house of a community worker art. 2 freedom of association
Obligation to live in a residence of the choice of the employer No complain of the denial of the right to have visitors - No complain of the denial of the right to leave the employers house - Deportation after having slpet in the house of a community worker (art. 2 right to emergency help)
Obligation to live in a residence of the choice of the employer No complain of the denial of the right to have visitors - No complain of the denial of the right to leave the employers house - Deportation after having slpet in the house of a community worker (art. 4 right to dignity)
Obligation to live in a residence of the choice of the employer No complain of the denial of the right to have visitors - No complain of the denial of the right to leave the employers house - Deportation after having slpet in the house of a community worker (art. 5 right to privacy)
Obligation to live in a residence of the choice of the employer No complain of the denial of the right to have visitors - No complain of the denial of the right to leave the employers house - Deportation after having slpet in the house of a community worker (art. 6-8 right to a private residence)
No free access to permanent settlement No complain in case of sexual abuses - Fear of not being sponsored by employer if joining a union art.7 right to liberty and security of the person
No free access to permanent settlement No complain in case of sexual abuses - Fear of not being sponsored by employer if joining a union art. 2 freedom of association
No free access to permanent settlement No complain in case of sexual abuses - Fear of not being sponsored by employer if joining a union (art. 4 right to dignity)
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• 3. Restrictions of rights and freedoms

Administrative restrictions Charters rights and freedoms restricted (Quebecs Charter) Basis of restriction of the Charters right to equality (Quebecs Charter)
Interdiction to work for another employer art.7 right to liberty and security of the person art. 15  discrimination based on national origin Ex Nannies from France
Interdiction to work for another employer art. 2 freedom of association art. 15  discrimination based on national origin Ex Nannies from France
Interdiction to work for another employer (art. 4 right to dignity) art. 15  discrimination based on national origin Ex Nannies from France
Obligation to live in a residence of the choice of the employer art.7 right to liberty and security of the person (art. 1) art. 15  discrimination based on national origin Ex Agricultural workers from Australia
Obligation to live in a residence of the choice of the employer art. 2 freedom of association art. 15  discrimination based on national origin Ex Agricultural workers from Australia
Obligation to live in a residence of the choice of the employer (art. 2 right to emergency help) art. 15  discrimination based on national origin Ex Agricultural workers from Australia
Obligation to live in a residence of the choice of the employer (art. 4 right to dignity) art. 15  discrimination based on national origin Ex Agricultural workers from Australia
Obligation to live in a residence of the choice of the employer (art. 5 right to privacy) art. 15  discrimination based on national origin Ex Agricultural workers from Australia
Obligation to live in a residence of the choice of the employer (art. 6-8 right to a private residence) art. 15  discrimination based on national origin Ex Agricultural workers from Australia
No free access to permanent settlement art.7 right to liberty and security of the person (art.10 discrimination based on social status)
No free access to permanent settlement art. 2 freedom of association (art.10 discrimination based on social status)
No free access to permanent settlement (art. 4 right to dignity) (art.10 discrimination based on social status)
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• 3. Restrictions of rights and freedoms
•  NOT SUCH A WARM WELCOME
• MIGRANT WORKERS POURING INTO CANADA ARE OFTEN
  EXPLOITED 

The Economist Nov 22, 2007
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Temporary foreign worker programs,
discrimination in the recognition of rights and
freedoms and systemic abuses policy
alternatives deserving serious consideration

• 4. Policy alternatives
• Toward occupation-tied work permits ?
• Toward autonomous access to permanent status for
  all workers admitted for employment in a sector
  caracterized by a labour shortage - whatever the
  skill level associated with the occupation?