Protecting workers from abuse and exploitation – Temporary Foreign Worker Program and International Mobility Program

Ministerial Instructions: Refusal to process work permits

On July 14, 2012, Ministerial Instructions were established for work permit applications submitted from both within and outside of Canada. The instructions state that applications from foreign nationals seeking to work for an employer that is in a sector where there are reasonable grounds to suspect a risk of sexual exploitation are not to be processed.

Guidelines for not processing applications

These instructions apply to all work permit applications where the applicant is destined

• to work for a business as described below; or
• to perform contract work for the business or on its premises (including on a self-employed basis), irrespective of the specific occupation that the applicant is intended to fill at that business.

When in receipt of an application to work in a business that is in a category covered by the instructions (that is, in a sector where there are reasonable grounds to suspect a risk of sexual exploitation for some workers), officers are instructed not to process these applications. Applicants affected by these instructions shall be informed that their application is not eligible for processing and their processing fee shall be returned.

For the purposes of these instructions, strip clubs, escort services and massage parlours are considered businesses where there are reasonable grounds to suspect a risk of sexual exploitation. These instructions should be applied to all businesses in these categories.

In addition, if a foreign national in the occupation of exotic dancer is destined to a bar or hotel that only has an exotic dance performance occasionally and would not normally be considered a “strip club,” the establishment will be considered a “strip club” for the duration of the foreign national’s performance and the business would become ineligible as per the Ministerial Instructions.

Open work permits

As per subsection 185(b) of the Immigration and Refugee Protection Regulations, all open work permits shall have the following condition placed in the visible remarks section of the document:

• Not valid for employment in businesses related to the sex trade such as strip clubs, massage parlours or escort services.

This condition informs the work permit holder that employment, self-employment or contract services in this sector are not permissible. If an employer operating a business in any of these sectors did hire a holder of an open work permit, it would potentially be in violation of section 124 of the Immigration and Refugee Protection Act for employing “a foreign national in a capacity in which the foreign national is not authorized under this Act to be employed.” This could lead to the punishment of the employer by a fine of up to $50,000 or imprisonment for a term of up to 2 years.

Learn more about open work permits.

Performing artists – International stage shows

Officers are reminded to first assess whether a work permit is required, in line with R186(g). International stage shows that do not require work permits as per R186(g) are not covered by the Ministerial Instructions.

Processing instructions

After the application has been promoted from “Prospective” to “Active”

1. Select “MI6” in the “Ministerial Instructions” field on the TR application screen.
2. Enter an “Eligibility” assessment of “Not Met”.
3. The Global Case Management System will automatically generate an “MI Not Eligible” letter in the Correspondence - Outgoing view. Note that this letter is a Word template letter.
4. Refund cost recovery fee paid in the Fees view tab.
5. Navigate to the History – Application Status view and record the “App Status” as “Cancelled” with an “App Status Reason” of “Ministerial Instructions”.

Regulation change December 31, 2013: Protecting foreign nationals from the risk of abuse and exploitation

The regulatory changes came into force on December 31, 2013. The new regulations prohibit all foreign nationals (visitors, students and workers) from working for these businesses, regardless of how they are authorized to work (for example, work off campus, work without a permit, open work permit).

R183 imposes conditions on all foreign nationals entering Canada by operation of law. The relevant portion of subsection R183(1) has been changed to the following:

• 183. (1) Subject to section 185, the following conditions are imposed on all temporary residents:

  (b.1) if authorized to work by this Part or Part 11, to not enter into an employment agreement, or extend the term of an employment agreement, with an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;

R200(3) provides for situations where an officer shall not issue a work permit. The following situation has been added to this subsection that is relevant to these instructions:

• 200. (3) An officer shall not issue a work permit to a foreign national if

  (g.1) the foreign national intends to work for an employer who, on a regular basis, offers striptease, erotic dance, escort services or erotic massages;

Work permits shall be refused for any foreign national applying to work in Canada in any occupation for a business that provides striptease, erotic dance, escort services or erotic massages on a regular basis.

These instructions apply to all foreign nationals entering or already in Canada. Foreign nationals are prohibited from working in any capacity (for example, janitor, cook or dancer) for any business in Canada that offers striptease, erotic dance, escort services or erotic massages on a regular basis. Foreign nationals entering Canada as work permit exempt or on open work permits are prohibited, as per the new regulations, from entering into employment with employers who offer these activities.

“Employment Agreement” is any arrangement which creates an employment relationship or a contract for individual services where the contractor renders direct service to a Canadian business (for example, direct hire or performing artist contract). It is any situation where the Canadian business has the right to direct and control the type, manner and timing of the employee’s work (for example, the business is responsible for scheduling when, where and how the contractor will provide their services).

“Business offering striptease, erotic dance, escort services or erotic massage on a regular basis”

For the purpose of determining whether a business meets the description above, an officer may wish to consider the following:

Are these activities the “normal” form of entertainment or services provided by the business?

Yes or no.

• If yes, the work permit should be refused as per R200(3)(g.1).
• If no, consider the following questions:
  1. Is it the business that is offering these services as opposed to the business simply hosting the event (for example, strip club or bar presenting an entertainer or a hotel renting out a conference room)?
     Note: If the venue is not the host, then the employer would be whoever signed the contract (employment or services) with the foreign national.
  2. Where the business is offering the services, are these services offered regularly such as once or more a week or month (as opposed to periodically such as once a year)?

If the answers to questions 1 and 2 is yes, then the work permit should be refused as per R200(3)(g.1) because the employer is a business that offers striptease, erotic dance, escort services or erotic massage.

Refusal code

IRPR 200(3) “This employer is ineligible to participate in the Temporary Foreign Worker Program”

“Case Remarks” should indicate R200(3)(g.1) in order to differentiate from R200(3)(h) refusals.