Temporary public policy to facilitate the granting of permanent residence for certain refugee claimants working in the health care sector during the COVID-19 pandemic

Background

Recent media reports and stakeholder interventions have drawn attention to the extraordinary contribution of refugee claimants working in Canada’s healthcare sector during the COVID-19 pandemic, particularly in long-term care centres in Quebec. In some cases, these individuals contracted COVID-19 and some may have passed away due to this illness and left behind family members in Canada. As these individuals face an uncertain future in Canada, it has been suggested that the current circumstances merit exceptional measures to provide these individuals with Permanent Residence status in recognition of their service during the pandemic.

While most of the attention has been focused on Quebec, there are refugee claimants across Canada who are doing similar work and facing similar risks to their health.

Public Policy Considerations

Refugee claimants who are working in Canada’s health care sector and providing direct care to patients have been making a significant contribution during the COVID-19 pandemic, while potentially being at increased risk of contracting COVID-19. The public policy targets foreign nationals who worked in a designated occupation (see Annex A) providing direct patient care in a hospital, public or private long-term care home or assisted living facility, or for an organization/agency providing home or residential health care services to seniors and persons with disabilities in private homes.

Both failed and pending refugee claimants face uncertainty regarding their future status in Canada. This public policy enables the Government of Canada to recognize their significant contribution and risk to their health during the pandemic by providing them with a more secure future in Canada. In recognition that there may be refugee claimants who contracted COVID-19 and subsequently passed away, spouses and common-law partners of these individuals, who are in Canada, may also be granted permanent residence under this public policy.

Recognizing the unique selection authority of Quebec, established under the Canada-Quebec Accord, a separate public policy for those intending to reside in Quebec has also been developed.

As such, I hereby establish that, pursuant to my authority under section 25.2 of the Immigration and Refugee Protection Act (the Act), there are sufficient public policy considerations that justify the granting of permanent residence to foreign nationals who meet the eligibility criteria and conditions listed below.

Conditions (eligibility requirements) applicable to the principal applicants

Based on the public policy considerations, delegated officers may grant permanent residence to foreign nationals who meet the following conditions:

A) The foreign national:

1. Is a pending refugee claimant or a failed refugee claimant, who made a refugee claim in Canada prior to March 13, 2020 and continued to reside in Canada when their application for permanent residence was made;
2. Was authorized to work in Canada by virtue of a work permit or work permit exemption under section 186 of the Immigration and Refugee Protection Regulations (the Regulations), unless the individual lost their authorization to work as a result of a removal order against them becoming enforceable due to a final negative decision on their refugee claim, in which case work performed subsequent to the loss of that authorization need not be authorized;
3. Intends to reside in a province or territory other than Quebec;
4. Worked in Canada in one or more designated occupations (see Annex A) providing direct patient care in a hospital, public or private long-term care home or assisted living facility, or for an organization/agency providing home or residential health care services to seniors and persons with disabilities in private homes:
   1. for a minimum of 120 hours (equivalent to 4 weeks full-time) between March 13, 2020 (the date when Canadian travel advisories were issued) and August 14, 2020 (the date the public policy was announced; and,
   2. for a minimum of 6 months full-time (30 hours per week) or 750 hours (if working part-time) total experience (obtained no later than August 31, 2021); and,
   3. for greater certainty, periods of work in a designated occupation must be paid unless the applicant was doing an internship that is considered an essential part of a post‑secondary study program or vocational training program in one of the designated occupations, or an internship performed as part of a professional order requirement in one of the designated occupations.
5. Is not inadmissible other than for any of the following reasons: having failed to comply with conditions related to their temporary stay including having overstayed a visa, visitor record, work permit or student permit or having worked or studied without being authorized to do so under the Act (as long as it was solely as a result of losing their work authorization when a removal order against them became enforceable as specified under Condition A)2 described above); having entered Canada without the required visa or other document required under the Regulations; having entered Canada without a valid passport or travel document. However for the purpose of the granting of the permanent residence pursuant to this public policy, the foreign nationals and their family members are required by subparagraph 72(1)(e)(ii) of the Regulations to provide the Department of Immigration, Refugees and Citizenship Canada any of the documents enumerated under subsection 50(1) of the Regulations. If the foreign national and their family members in Canada are unable to obtain any of the documents, enumerated under subsection 50(1) of the Regulations (e.g., valid passport or travel document), as required by subparagraph 72(1)(e)(ii) of the Regulations,an exemption from this requirement can be granted if these foreign nationals can provide any of the documents described  in subsection 178(1) of the Regulations where such alternative document complies with the requirement of subsection 178(2) of the Regulations(specific wording of these provisions is provided in Annex B of this public policy).
6. Is a pending refugee claimant or claimant who has received a final negative decision from the Immigration and Refugee Board (IRB) and, if they have commenced an application for leave and judicial review of the negative IRB decision in Federal Court, or an appeal in relation to the underlying IRB decision at the Federal Court of Appeal, and who has complied with all other eligibility and admissibility conditions of this public policy, is required, in terms of the final condition of this public policy, to withdraw their refugee claim at the IRB or their appeal of the negative decision by the IRB at the Refugee Appeal Division (RAD), Federal Court application or appeal at the Federal Court of Appeal of the underlying decision of the IRB, in order to be granted permanent residence through the public policy. Should the individual decide not to withdraw their refugee claim at the IRB, their appeal at the RAD, their application at the Federal Court or their appeal at the Federal Court of Appeal, those processes will continue to proceed but their application for permanent residence under this public policy will be refused.

OR B) The foreign national:

7. Was the spouse or common-law partner of a foreign national who would have met conditions 1 and 2, worked in Canada in a designated occupation (see Annex A) providing direct patient care in a hospital, public or private long-term care home or assisted living facility, or for an organization/agency providing home or residential health care services to seniors and persons with disabilities in private homes, at any time between March 13, 2020 and August 14, 2020, and who contracted COVID-19 and passed away prior to applying for permanent residence or after applying but before being granted permanent residence;
8. Resided in Canada prior to August 14, 2020 and intends to reside in a province or territory other than Quebec; and,
9. Meets condition 5 above and if the foreign national is a pending refugee claimant or claimant who has received a negative decision from the IRB, meets condition 6 above.

Conditions (eligibility requirements) applicable to Family Members

Family members of the principal applicant eligible for immigration to Canada under this public policy will be granted permanent residence, if they are also residing in Canada, are persons who meet the definition of a “family member” in subsection 1(3) of the Regulations as assessed by a delegated officer, and are not inadmissible on other grounds then those from which they are exempted via this public policy under condition 5 and if they are pending refugee claimants or claimants who have received a negative decision from the IRB, they meet condition 6 above.

Admissibility Requirements

The foreign national (and their family members) must meet all admissibility requirements, other than those for which an exemption was granted to them under this public policy under condition 5.

Concepts and Definitions applicable for the purpose of this public policy:

1. A pending refugee claimant is a person who made a refugee claim in Canada prior to March 13, 2020, and whose claim had not been decided by the Refugee Protection Division (RPD) or the RAD of the IRB when their application for permanent residence under the public policy is made, up until a final decision under the public policy is rendered.
2. A failed refugee claimant is a person who made a refugee claim in Canada prior to March 13, 2020, and who has received a final negative decision by the IRB on their claim. This includes claimants who have commenced an application for leave and judicial review of the negative IRB decision in Federal Court, or an appeal in relation to the underlying IRB decision at the Federal Court of Appeal.
3. Persons whose refugee claims were: determined to be ineligible to be referred to the IRB; determined to be withdrawn (unless withdrawn immediately prior to being granted permanent residence through this public policy) or determined to be abandoned; determined to be manifestly unfounded (MUC) or with no credible basis (NCB); determined to be excluded under Article 1F of the Refugee Convention; or a determination that refugee protection has been ceased or vacated are not eligible for this public policy.
4. Periods of paid or unpaid sick leave may be counted when assessing the 120 hours or the 6-month experience requirement if the applicant contracted COVID-19. Periods of paid or unpaid leave due to illness/disability, maternity/parental leave, quarantine or isolation requirements due to COVID-19, caring for family who contracted COVID-19 or lack of child care due to COVID-19 may be counted when assessing the 6‑month experience requirement.
5. Once a delegated officer assesses that a foreign national meets the applicable conditions, including the requirement not to be inadmissible on other known grounds of inadmissibility than those specified in the condition 5 described above, but excluding the compliance with the condition number 6 as described above and the requirement of subparagraph 72(1)(e)(ii) of the Regulations to provide the Department of Immigration, Refugees and Citizenship Canada any of the documents enumerated under subsection 50(1) of the Regulations, including whether the foreign national can be exempted from such requirement as described in the context of the condition number 5 where compliance with these conditions will be assessed at the very end of the assessment process, the delegated officer will approve the application in principle (first step approval) under this public policy. For greater certainty, those with known inadmissibilities, other than those listed above, will not receive approval in principle. If approval in principle is received, a removal order, where one exists, will be stayed pursuant to section 233 of the Regulations. The stay of removal, according to the Regulations, is in effect until a final decision is made on the permanent residence application under this public policy. A final assessment of admissibility will be conducted prior to granting of permanent residence.
6. Applicants wishing to settle in Quebec must apply under the Temporary Public Policy to grant permanent residence to certain foreign nationals selected by Quebec working in the Health Care sector during the COVID-19 pandemic.

Fees

Any applicable fees, including fees for processing an application for permanent residence under subsection 25.2(1) of the Act, and the Right of Permanent Residence Fee, must be paid.

Start and end dates

This public policy comes into effect upon signature. This public policy will be implemented on December 14, 2020 and will end on August 31, 2021 or when revoked by the Minister. Applications received on or before August 31, 2021, or date of revocation, if applicable, will be processed under the public policy.

Annex A

Designated occupations - National Occupational Classification (NOC) codes

• 3011 – Nursing co-ordinators and supervisors
• 3012 – Registered nurses and registered psychiatric nurses
• 3233 – Licensed practical nurses
• 3413 – Nurse aides, orderlies and patient service associates
• 3124 – Allied primary health practitioners

Other designated occupations:

4412 – Home support workers, housekeepers and related occupations only

Note 1: Among the sub-occupations under NOC 4412, housekeepers and related occupations are excluded from the designated occupations under the public policy.

To be eligible under the NOC code 4412 for this public policy:

• The applicant must be engaged in providing basic personal care services and offering physical assistance directly to patients by primarily performing some or all of these duties:
  • Provide care and companionship for individuals and families during periods of incapacitation, convalescence or family disruption
  • Administer bedside and personal care to clients such as aid in ambulation, bathing, personal hygiene, and dressing and undressing
  • May perform routine health-related duties such as changing non-sterile dressings, assisting in the administration of medications and collecting specimens under the general direction of a home care agency supervisor or nurse
• The applicant may also perform duties listed below, in addition to the above mentioned duties:
  • Plan and prepare meals and special diets, and feed or assist in feeding clients
  • Perform routine housekeeping duties such as laundry, washing dishes and making beds

Note 2: For greater certainty, as per the objective of the public policy, the applicant must demonstrate that the principal care services provided are for the patient and not their family.  In addition, the onus is on the applicant to satisfy the officer that they predominantly provided personal care and support services as per the main duties described in the NOC occupational description, with any performance of routine housekeeping duties such as laundry, washing dishes, etc., being incidental to their primary role providing direct in-home care.

Note 3: For greater certainty, self-employed caregivers or those who are employed by private households (directly employed by the person receiving care, or by the family/guardians of the person receiving care) are excluded from this public policy.

Annex B

Document requirements

Subparagraph 72 (1) (e) (ii) of the Regulations:

A foreign national in Canada becomes a permanent resident if, following an examination, it is established that: (e) except in the case of a foreign national who has submitted a document accepted under subsection 178 (2) of the Regulations or of a member of the protected temporary class: (ii) they hold a document described in any of paragraphs 50 (1) (a) to (i) of the Regulations.

Paragraphs 50 (1) (a) to (i) of the Regulations:

1. a passport, other than a diplomatic, official or similar passport, that was issued by the country of which the foreign national is a citizen or national;
2. a travel document that was issued by the country of which the foreign national is a citizen or national;
3. an identity or travel document that was issued by a country to non-national residents, refugees or stateless persons who are unable to obtain a passport or other travel document from their country of citizenship or nationality or who have no country of citizenship or nationality;
4. a travel document that was issued by the International Committee of the Red Cross in Geneva, Switzerland, to enable and facilitate emigration;
5. a passport or travel document that was issued by the Palestinian Authority;
6. an exit visa that was issued by the Government of the Union of Soviet Socialist Republics to its citizens who were compelled to relinquish their Soviet nationality in order to emigrate from that country;
7. a passport issued by the United Kingdom to a British National (Overseas), as a person born, naturalized or registered in Hong Kong;
8. a passport issued by the Hong Kong Special Administrative Region of the People’s Republic of China; or
9. a passport issued by the United Kingdom to a British Subject.

Subsection 178(1) of the Regulations:

Identity documents - An applicant who does not hold a document described in any of paragraphs 50 1(a) to (i) of the Regulations may submit with their application:

1. any identity document issued outside Canada before the person’s entry into Canada;

   or

2. if there is a reasonable and objectively verifiable explanation related to circumstances in the applicant’s country of nationality or former habitual residence for the applicant’s inability to obtain any identity documents, a statutory declaration made by the applicant attesting to their identity, accompanied by
   1. a statutory declaration attesting to the applicant’s identity made by a person who, before the applicant’s entry into Canada, knew the applicant, a family member of the applicant or the applicant’s father, mother, brother, sister, grandfather or grandmother, or
   2. a statutory declaration attesting to the applicant’s identity made by an official of an organization representing nationals of the applicant’s country of nationality or former habitual residence.

Subsection 178 (2) of the Regulations:

Alternative documents - A document submitted under subsection 178 (1) of the Regulations shall be accepted in lieu of a document described in any of paragraphs 50 (1) (a) to (i) if

1. in the case of an identity document, the identity document
   1. is genuine,
   2. identifies the applicant, and
   3. constitutes credible evidence of the applicant’s identity; and
2. in the case of a statutory declaration, the declaration
   1. is consistent with any information previously provided by the applicant to the Department or the Board, and
   2. constitutes credible evidence of the applicant’s identity