Legal Remedies for Temporary Status Holders Facing Sexual Assault and Harassment in Canada
Individuals in Canada with temporary status, like students and foreign workers, facing sexual assault or harassment can seek legal remedies. Students must adhere to specific requirements, while foreign workers may apply for open work permits if experiencing abuse. Remedies include authorized leave from studies with proper evidence and applying for open work permits with supporting documentation.
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Kamaljit K. Lehal Barrister & Solicitor Lehal Law Corporation kklehal@lehal law.com IMMIGRATION ISSUES IN CASES OF SEXUAL ASSAULT AND HARASSMENT June 20, 2023
Individuals with temporary status or no-status in Canada who may have been a victim of sexual assault or sexual harassment may include: Students VICTIMS OF SEXUAL ASSAULT AND OR SEXUAL HARASSMENT Workers Trafficked in persons Refugees Sponsored spouses or Sponsors Spouses of a PR or Canadian Citizen who are out of status or have precarious status
Students have temporary status as student permit holders. They have specific requirements to comply with to maintain their status: Study at a DLI Be enrolled full time or part time during each academic semester Make progress towards completing their program They can typically work up to 20 hours during the school year on campus and more during holiday breaks. STUDENTS A student cannot take an authorized break from studies for more than 150 days.
This is leave from your studies authorized by your school for: REMEDIES FOR STUDENTS AUTHORIZED LEAVE medical reasons or pregnancy family emergency death or serious illness of a family member any other type of leave your school authorizes Evidence of authorized leave: Proof from a medical professional. Any other relevant evidence police report. If the leave has exceeded 150 days then may have to consider a Temporary Resident Permit (TRP) s.24(1) IRPA individuals who are inadmissible or otherwise do not meet requirements of the Act.
Foreign workers have temporary immigration status as work permit holders. Work permits are typically employer specific work permits with restrictions regarding the type of work and location. FOREIGN WORKERS An employer restricted work permit is usually LMIA based (provided by HRSDC). These restrictions prevent a worker from leaving and working with another employer.
Foreign workers who experience sexual abuse or harassment at work can apply for an open work permit. No longer bound to a specific employer. Apply directly online to IRCC for an open work permit for vulnerable workers. REMEDIES FOR FOREIGN WORKERS Include a letter of explanation detailing the abuse along with supporting evidence Types of evidence: a letter, statement or report from an abuse support organization, medical doctor, health-care professional or other such entity Sworn affidavit by applicant Copy of complaint filed with enforcement agency (police; employment standards branch) Victim impact statements, witness testimonies Letter of Explanation Open Work Permit for Vulnerable Workers [IMM 0017] (PDF, 1.8 MB) They are encouraged to use the Letter of Explanation Open Work Permit for Vulnerable Workers [IMM 0017] (PDF, 1.8 MB). Letter of Explanation Open Work Permit for Vulnerable Workers [IMM 0017] (PDF, 1.8 MB) Letter of Explanation Open Work Permit for Vulnerable Workers [IMM 0017] (PDF, 1.8 MB)
TRAFFICKED IN PERSONS Article 3 of The United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking Protocol), ratified by Canada in 2002 defines trafficking in persons as: the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
TRAFFICKED IN PERSONS According to this definition, trafficking in persons involves 3 key elements: 1. A physical act: for example, recruitment, transportation, or harboring of a person 2. Accomplished through threats, force, coercion or deception 3. For a specified purpose exploitation of victims S.118(1) of the Immigration and Refugee Protection Act is the provision against trafficking: No person shall knowingly organize the coming into Canada of one or more persons by means of abduction, fraud, deception or use or threat of force or coercion Penalty: fine or imprisonment
REMEDIES FOR TRAFFICKED IN PERSONS VTIP TRP Victims of Trafficked in Persons Temporary Resident Permit Can be issued a Short TRP for 180 days Longer term or subsequent TRP for up to 3 years Complex process: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications- manuals/operational-bulletins-manuals/temporary-residents/permits/considerations- specific-victims-human-trafficking.html#sec1 Short Term VTIP -TRP Officer has to be convinced that there are reasonable grounds to believe person is a VTIP based on preliminary assessment of circumstances If they are found not to be then may be other options: i.e. refugee claim, H & C Claim If they are found to be VTIP then will be issued initial short term TRP to allow them time to make a decision; get assistance; consider cooperating with authorities, i.e. be a witness.
REMEDIES FOR TRAFFICKED IN PERSONS Longer term VTIP TRP Starting point again is whether there are reasonable grounds to believe VTIP may require more robust interviewing Officers will need to consider the following factors, as per the MIs, in arriving at a decision to issue a longer-term VTIP TRP: whether it is reasonably safe and possible for the victim to return to and re- establish a life in their country of origin or last permanent residence whether the victims are needed, and willing, to assist authorities in an investigation and/or in criminal proceedings of a trafficking offence Officers are required to be sensitive to the trauma experienced by the individual
Individuals who are claiming persecution against their country of nationality. If they are claiming sexual assault or sexual harassment in their country of nationality gender persecution - then they will provide that evidence as part of their refugee claim. REFUGEES If the sexual assault and sexual harassment occurred in Canada, then they would be proceed as any other victim in Canada. Their refugee claim would continue its course.
For refugees who have a claim of persecution from their country of nationality there are resources in Canada to support them through their refugee process. REFUGEE CLAIMANT - REMEDIES Victim services and community advocates Counselling and Psychologist assessments Trauma informed hearings For refugees who have suffered sexual assault or sexual harassment within Canada there are also support resources.
Typically a spouse is sponsored to Canada under the family class. They are sponsored under a Sponsorship Agreement where the Sponsor has signed an undertaking to provide the essentials to the spouse. This is a three-year undertaking signed with the Federal government but assigned to the provinces SPONSORED PERSONS The Sponsored person also signs this document and is told to rely on the support of the Sponsor and not seek social assistance. If a sponsored spouse is abused there is provision that allows them to seek social assistance - a built-in remedy to leave the abusive relationship. This creates a sponsorship debt on the Sponsor. Myth of you will be deported if you report the abuse.
Flip side a sponsor being abused by their sponsored spouse. If they leave the relationship, then real possibility that abusive spouse will go on social assistance and create a sponsorship debt to be paid by the Sponsor. SPONSORSHIP DEBT Until December 2021 the province of BC would seek to recover the sponsorship debt from the Sponsor despite the Sponsor being a victim of abuse. Now these debts are written off in cases of abuse.
Typical scenario a foreign national is in a relationship with a PR or Canadian Citizen. Their partner promises to sponsor them and never does or doesn t complete it. They may let their immigration status lapse based on these promises. SPOUSAL RELATIONSHIPS Or they may be on temporary status, visitor, work, student. They are typically told if they report the abuse they will be deported. For those out of status this is a real risk of removal from Canada.
If the person is without status, then they can apply for an expedited TRP with the coding FV . The FV is coding that is intended to flag the file for expedited processing. This will give temporary status in Canada. Usually a one year TRP is given, but a subsequent one can also be provided. The individual can simultaneously apply for a work permit There are no application fees. Removals is put on hold during this process. https://www.canada.ca/en/immigration-refugees- citizenship/corporate/publications- manuals/operational-bulletins-manuals/temporary- residents/permits/family-violence.html SPOUSAL RELATIONSHIPS - REMEDIES
The individual can also apply for a H & C application with coding FV This will give them permanent resident status in Canada. Once approval in principal is given, they can apply for a work permit. Note: social assistance and inadmissibility officer can waive this provision (s.39 IRPA). Removals is not put on hold but typically with expedited processing this should not be a big hurdle. But if removals is being pursued a Deferral can be requested. And if required a Stay of Removals through Federal Court. SPOUSAL RELATIONSHIP- REMEDIES
Evidence could include: Police records Criminal or family court documents Letters, statements or reports from Victim assistance program Women s shelter or domestic abuse support organization Hospital Medical doctor or healthcare professional Counsellor Family, friends, neighbour, co-worker, witnesses Assessments by: Psychologist Psychiatrist Other health care professional Photos of injuries Copies of emails or text messages EVIDENCE IN SUPPORT OF TRPS AND H & C APPLICAITONS
In an H & C application the following factors are considered: FACTORS CONSIDERED IN H & C APPLICATION Hardship in being asked to leave Canada; Family Relationships; Best Interests of the Child; Degree of establishment to Canada; Financial Resources
Examples: Children in Canada and court orders preventing removal. Pending criminal charges and need to testify. Resources and counselling in Canada. Lack of similar resources in home country. Inability of family abroad to support the woman. Family abroad concerned with dishonor and shame if the woman returns. Risks to safety of single woman returning to home country. HARDSHIP IN LEAVING CANADA
Points that could be made: There is lack of family support in home country. If there are children involved there may be an inability for any family abroad to provide the support they need. FAMILY RELATIONSHIPS Feelings of dishonor and shame by family abroad. There are family or friends in Canada that can be a source of support.
This is an important criteria, a lot of consideration is given to what is in the best interests of any child. If the child/ren has witnessed abuse and needs counselling. If there are custody issues and order preventing removal of the child/ren from the Canada. BEST INTERESTS OF THE CHILD The best interests in the child/ren having some form of contact with the abusive spouse. If schooling and other supports are in place in Canada and would be difficult to obtain outside of Canada;
Need to show steps made to become established in Canada: Working in Canada. Volunteering. Being involved in the community. Efforts made to learn the language. Essentially trying to place roots in Canada. ESTABLISHED IN CANADA
Need to show that you are able to financially support yourself: Working in Canada. If not working due to lack of a work permit show that the victim skills to work when a work permit is issued or is willing to acquire skills or has canvassed work opportunities. FINANCIAL STATUS Relying on community resources and support. If the victim cannot work due to trauma seek a waiver of the social assistance inadmissibility provision.
We have reviewed VITIP TRPs and TRP FV There are regular TRPs available to anyone who is otherwise without status or not able obtain status any other way. TRP AND H & C REMEDIES Likewise, H & Cs are available to anyone who has compelling circumstances as a route to obtaining permanent resident status. Onus on the applicant Focus is what would move any reasonable person in a civilized society to relieve the misfortunes of another person
Important to note that Legal Aid BC does provide coverage for lawyers to prepare both TRP applications and H & C applications. LEGAL AID COVERAGE There is even coverage for some of the application fees.
There are many ways victims of sexual assault and sexual harassment can be emersed in intersecting immigration issues impacting their status. SUMMARY There are various remedies available to them depending upon their particular circumstances. Some have been crafted specifically for certain situations. Some are more general and available as potential remedies.
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