Canada’s program to legalize undocumented migrants

Canada’s program to legalize undocumented migrants should be simple and comprehensive.

Audrey Macklin is a professor of law and chair in human rights at the University of Toronto’s faculty of law. Naomi Alboim is the senior policy fellow in the Canada Excellence Research Chair Program in Migration and integration at Toronto Metropolitan University. Anna Triandafyllidou is the Canada Excellence Research Chair in migration and integration at Toronto Metropolitan University.

Immigration Minister Marc Miller recently sent encouraging signals that the government will act on its promise to create pathways to permanent residence for people without status in Canada. Mr. Miller said he is preparing to create a “broad and comprehensive program” that will give legal status to people living and working illegally in the country, beginning with a program for construction workers. This is welcome news, but it is crucial that Ottawa learns from previous Canadian and European models when it rolls out its regularization program.

The vast majority of people living without status in Canada did not enter clandestinely. They arrived with a visa or permit authorizing them to be in Canada to work or study, or were eligible to apply for refugee status. Unlike permanent resident status, each of these categories is temporary, conditional and precarious. And at some point people lost their status, many inadvertently, because their temporary visas expired, they did not meet one of the conditions, their refugee claims were refused, or they did not qualify for transition programs to permanent residence.

Yet they remained living and working in Canada, often for many years. Non-status migrants work hard and work scared because they fear deportation. Their lack of legal status increases their vulnerability to labour exploitation, negatively affects their physical and mental health, and keeps them in a state of constant and precarious limbo. It also prevents Canada from benefiting fully from their presence.

Some arrived in Canada as children, and never had occasion to think about their immigration status until adulthood. They simply never questioned that they belong here. A regularization program would bring law into alignment with reality.

It is essential that the new regularization program is simple and straightforward. Excessive and unreasonable bureaucratic hurdles divert time, money and energy away from resolving cases, and bar access to the program for a vulnerable population. People who work and live in the shadows may not be able to produce regular pay stubs, or the usual forms of documentation.

The scope of the program should be broad, aiming to encompass the diverse array of people who lack status. “Pilot-project” models that target the labour market demands du jour (e.g. construction, health care) will fail the principle of equity. All else equal, it is not fair that a construction worker without status should have access to regularization while the restaurant worker should not. In addition, a viable program should encourage people to apply, and that means creating a firewall between the program and other immigration and law enforcement authorities so that an unsuccessful application does not expose the applicant to deportation (unless they are dangerous).

Who should qualify for regularization? The main criterion should be time spent in Canada. The longer one has lived here, the more one has become embedded in – and contributed to – Canadian society, the economy and culture. Those who arrived as children and have been educated in Canada have a strong claim to regularization. Those who came as adults but have lived and worked here for years also warrant recognition. We recognize that lines must be drawn somewhere about the minimum number of years of residence. We also recognize that inadmissibility on grounds of serious criminality will disqualify some people. Finally, the small numbers of residents who cannot be deported because their country of origin is too dangerous, or will not issue travel documents, should be taken out of years or decades-long limbo and granted permanent resident status.

Some worry that a regularization program will incentivize irregular migration to Canada. However, as we noted above, non-status migrants typically entered Canada through regular channels, and there is little reason to expect that a regularization program will alter the process by which the government manages initial entry to Canada. Nor does comparative data suggest that regularization programs encourage people to overstay their visas.

If Canada wants to truly reduce the future numbers of non-status migrants, we need to rethink how the immigration system has evolved over the past 15 years. We have gone from a system that admits most immigrants as permanent residents, to one that admits most people on a temporary and conditional basis, and only permits a fraction of those migrants to transition to permanent resident status. As long as Canada’s immigration system fails to provide meaningful pathways to permanent residence for most temporary workers, it will continue to generate non-status migrants at higher rates and in greater numbers. Addressing this problem is the next challenge.