Silcoff | Ottawa Citizen

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We should help undocumented workers who are contributing to Canadian communities stay in the country, an immigration lawyer writes.

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In August 2020, just a few months into the pandemic, then-Immigration Minister Marco Mendicino announced a new pathway to permanent residence for healthcare workers on the front lines of COVID-19 who had risked their own lives to save the lives of others.

Mendicino made this announcement following a large number of deaths in long-term care homes. The pandemic healthcare workers became known as “Guardian Angels.” Many had arrived in Canada through Roxham Road and were in the refugee stream at the time the program was announced. When Canada stepped up to provide them with a pathway to permanent residence in recognition of their significant contributions to Canada, we applauded.

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Immigration Minister Marc Miller recently announced that he will present a broad regularization proposal to cabinet. As stated in the Prime Minister’s 2021 mandate letter, regularization would “[b]uild on existing pilot programs to further explore ways of regularizing status for undocumented workers who are contributing to Canadian communities.”

Dealing with the construction industry is an easy place to start.

We are now facing a housing crisis, resulting in the cost of renting an apartment and buying a home being out of reach for so many people. At the same time, a significant number of individuals who work in the construction industry building new homes lack immigration status in Canada, their temporary status having expired. They are now making critical contributions to solving the housing crisis by building homes that they may never be able to afford to even rent because their wages are commensurate with a lack of status.

Not only has Canada put in place immigration pathway programs in the past to provide individuals with immigration status, but the government has apologized for laws designed to restrict immigration status in certain contexts. The Chinese Head Tax and Exclusion Act, enacted after Chinese nationals were pivotal in constructing the national railroad, serve as a stark reminder that those who contribute to Canada’s development cannot be treated as unworthy of status in Canada once their work is no longer needed.

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Operational realities require that broad regularization be metered. This can be done by creating prioritized programs.

We already have a roadmap for regularization programs in the construction industry. The Temporary Public Policy for Out-of-Status Construction Workers in the Greater Toronto Area (GTA) has been in existence for close to four years, having been twice renewed. According to then Immigration Minister Sean Fraser, the purpose of the program is “to recognize the economic contribution of long-term resident construction workers” due to a labour market shortage in the industry. Lessons learned from this program can assist in creating a broader one, to ensure it is effective in capturing the intended cohort.  

Other programs can be based on different priorities, such as the number of years an individual has been in Canada, their work history, whether they have minor children who lack status in Canada, and certain vulnerabilities. Programs typically screen out those who fail to meet criminal and security grounds for admission to Canada.

But regularization programs should not be restricted to people who lack any immigration status. Including those who are in the refugee determination system would help resolve another issue. Canada has seen an uptick of refugee claimants, even after the expansion of the Canada-U.S. Safe Third Country Agreement earlier this year, which bars most refugees from entering Canada at the land border. As with the Guardian Angels program, regularization programs inclusive of individuals in the refugee stream can relieve pressures on the refugee system and provide a pathway to permanent residence for those who have contributed to the Canadian economy.

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Eligibility for regularization would presumably be limited to individuals who have been living in Canada for some time before a program lock-in date, eliminating a pull factor for others who are not in Canada. Candidates for a program would be housed and integrated into Canadian society. They may be the people who fix plumbing or deliver your food. They may be your neighbour or your child’s friend.

The alternatives to broad regularization are mass deportation or maintaining the status quo. Neither one is sensible for those affected, or for Canada as a country.

Maureen Silcoff is an immigration and refugee lawyer and partner at Silcoff Shacter.

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