Operational Bulletin 170 – December 30, 2009

This section contains policy, procedures and guidance used by Immigration, Refugees and Citizenship Canada staff. It is posted on the Department’s website as a courtesy to stakeholders.

Assessing Official Language Requirements for Temporary Foreign Workers

Background

Subsequent to guidance recently issued regarding the assessment of the language requirement for temporary foreign workers, continued discussions on this subject have taken place at the operational, policy and legal levels. The purpose of this bulletin is to clarify these earlier instructions.

Updated instructions

IRPR subsection 200(3)(a) states that:

An officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought;

Recent legal guidance obtained states that a refusal based on 200(3)(a) needs to be clearly based on the specific application and the situation in that particular workplace.

Immigration officers should not limit their assessment of language, or other requirements to perform the work sought, solely to those described in the Labour Market Opinion (LMO). However, the language requirement stated in the LMO should be part of the officer’s assessment of the applicant’s ability to perform the specific work sought because it is the employer’s assessment on the language requirement(s) for the job. Please note that currently, Service Canada does not assess a job’s language requirements.

Additionally, the officer can consider:

  • the specific work conditions and any arrangements the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French and to address potential safety concerns if any; and
  • terms in the actual job offer, in addition to general requirements set out in the National Occupational Classification (NOC) description for the occupation. This is applied in assessing the extent to which weak official language skills could compromise the applicant’s “ability to perform the work sought”

Current legal advice is that it is not appropriate for an officer to consider perceived challenges the applicant might face in interacting with the broader community, such as availing him/herself of community services, if this is not relevant to their job performance. Such a consideration is beyond the scope of the current legislation.

The same principles respecting official language capability and the applicant’s ability to perform the work sought apply irrespective of the skill level of the intended occupation. There is no separate standard or criteria for applicants at NOC skill levels C or D.

Applicant’s language ability can be assessed through an interview or official testing such as IELTS/TEF or in-house mission testing practice. In deciding to require proof of language ability, the officer’s notes should refer to the LMO requirements, working conditions as described in the job offer and NOC requirements for the specific occupation, in determining what precise level of language requirement is necessary to perform the work sought. System notes must clearly indicate the officer’s language assessment, and in the case of a refusal, clearly show a detailed analysis on how the applicant failed to satisfy the officer that he/she would be able to perform the work sought.

Canada-Provincial/Territorial Immigration Agreements

Broader issues of effective community orientation are still recognized as important from a policy perspective, and therefore are being addressed through possible pilots which will deal with issues of language capacity and community orientation under bilateral agreements with provincial/
territorial governments. It is believed that provincial/territorial support in addressing this issue is essential both legally and operationally.

The best current example is found in the following clause from the Temporary Foreign Worker Annex to the Agreement for Canada-Alberta Cooperation on Immigration:

“5.4 Canada and Alberta acknowledge the importance of enhancing the functioning and facilitating the orientation of all TFW in Alberta workplaces and communities. Through the Canada-Alberta Working Group on TFW, the Parties agree to implement a pilot project within 12 months of signing this Annex. CIC will work with Alberta to require all TFW destined to Alberta to fill occupations found in NOC C and D categories to demonstrate a minimum proficiency in French or English where this is required in order to better ensure their ability to undertake the work for which they have been recruited, pursuant to section 200(3)(a) of the TFW. In addition, subject to regulatory authority, all labour market opinion applications in these categories will be accompanied by a workplace and community orientation plan for TFW

A Canada-Alberta working group is currently designing procedures for implementing the above-noted pilot, and operational instructions for introducing the pilot should be promulgated shortly. In addition, we expect that as additional TFW annexes are negotiated with interested provinces and territories, additional pilots aimed at addressing this issue will also be agreed to.

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