Revised: May 2003

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ASSISTING

IMMIGRANT

AND

REFUGEE

WOMEN

A B U S E D B Y T H E I R S P O N S O R S

A G U I D E F O R S E R V I C E P R O V I D E R S

B C I N S T I T U T E AG A I N S T FA M I LY V I O L E N C E

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Acknowledgments

Written by: Katrina Pacey

Reviewed by: Rochelle Appleby, Eduardo Aragon, Shashi Assanand, Brian Callegari, Uma Grant,

Bayush Hagos, Karen O’Conner Coulter, Olatz Sagarduy, Laura Valdez and the counsellors from the Vancouver and Lower Mainland Multicultural Family Support Services

Edited by: Gayla Reid, Plain Language Communications Designed by: Kate Maguire

Cover by: Teresa Reimer

Contents may not be commercially reproduced, but copying for other purposes is encouraged.

Assisting Immigrant and Refugee Women Abused by Their Sponsors is a publication of the BC

Institute Against Family Violence (BCIFV). The BC Institute Against Family Violence was established in 1989 as a private, non-profit organization. The Institute works to increase public awareness and understanding of family violence through research, education and the

development and distribution of resources.

The guide was funded by the BC Ministry of Multiculturalism and Immigration through its Anti-Racism and Multiculturalism Program.

The guide explains the law in general. It is not intended to give legal advice on a particular problem. Because each person’s case is different, your client needs to get legal help if possible. Copies of this guide are available from:

The BC Institute Against Family Violence Suite 551 - 409 Granville Street

Vancouver, BC V6C 1T2 Telephone: (604) 669-7055

Toll free (Canada): 1-877-755-7055 Fax: (604) 669-7054

Web site address: http://www.bcifv.org Email: [email protected]

2nd_{edition: 2003}

Cataloguing Information

Main entry under title: Assisting Immigrant and Refugee Women Abused by Their Sponsors: A guide for service providers

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Introduction

Immigrant and refugee women who are abused by their sponsor face particular difficulties in accessing personal safety and protection. If these women do not have permanent resident status, or are at risk of deportation for other reasons, the consequences of leaving an abusive sponsor can complicate their immigration status.

Who is this guide for?

This guide is written for service providers working with any client who: • is an immigrant or refugee woman;

• has been sponsored to come to Canada by a partner/fiancé/spouse under the family class sponsorship guidelines;

• is experiencing abuse by her sponsor; and

• wants to separate from her sponsor but is at risk of deportation.

What is abuse?

Abuse within relationships can include many forms of abusive behaviour: emotional abuse, psychological abuse, neglect, financial exploitation, destruction of property, injury to pets, threats to family, threats to take children away, physical assault, sexual assault, and homicide.

Whether the immigration officer believes your client’s information about the abuse will be very important. Your client will help her case if she can provide supporting evidence about the abuse. See the lists of types of supporting evidence in the section on Humanitarian and Compassionate Applications – “H&C” Applications” – on page 32.

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What is in this guide?

This guide contains information about the legal process for service providers who are supporting women through the immigration process. It contains information to help you prepare your client for the legal process and explain how the process works.

It provides:

• information about the immigration process • information about legal and financial aid

• information about work and education permits • important contacts and services

• a glossary of important terms

This guide is organized into typical scenarios. Look at the table of contents to find the scenario that best matches your client’s situation.

If your client is not at risk of deportation but would like information on sponsorship breakdown, see the free booklet produced by Legal Services Society called Sponsorship Breakdown. It is available in Chinese, English, Korean, Punjabi, Spanish, and Vietnamese. See page 46 for how to get a copy.

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Structure of Citizenship and

Immigration Canada

Citizenship and Immigration Canada (CIC) is the federal government department that handles immigration, refugee, and citizenship matters. This section provides a brief introduction to CIC and lists relevant phone numbers and addresses.

The Citizenship and Immigration Canada web site is at http://www.cic.gc.ca/ The web site has information on Immigration Canada programs and services, application kits for download, and application kits you can order by mail. Immigration Canada provides the following relevant services:

Case Processing Centres (CPCs): CPCs are national mail-in service centres

that handle most applications. Contact a Call Centre (see next heading) if you are looking for information about an application.

Call Centres: A call centre provides information about immigration and

citizenship programs and services, for information about your client’s application, for applications and information kits, and for help with fee calculations.

Call centres provide an automated telephone service or you can speak

directly to a call centre agent. Call centre agents can provide information and factual advice. They cannot make decisions on applications being processed. The automated service is available seven days a week, 24 hours a day. It requires a touch tone phone. You can use it to order application kits and get general information on Immigration Canada programs.

Agents are available from 8 a.m. to 4 p.m. To speak to an agent, press “O” after you contact the call centre.

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Call Centre numbers: Vancouver: (604) 666-2171

Outside the Lower Mainland: 1-888-242-2100 (toll-free) Toronto: (416) 973-4444

Montreal: (514) 496-1010

Anywhere else in Canada: 1-888-242-2100 (toll-free)

For information on the Permanent Resident Card, call 1-800-255-4541. If you are hearing impaired and use a text telephone, you can access the TTY by calling 1 888 576-8502

CIC Metro Vancouver is the office that processes In-Canada applications. The address is:

CIC Metro

1148 Hornby Street. Vancouver, BC V6Z 2C3

Enforcement Branch is the office that carries out all investigations and removal orders. The Vancouver address is:

Citizenship & Immigration Canada Enforcement Branch

700 - 300 West Georgia Street Vancouver, BC

V6B 6C9

Immigration and Refugee Board (IRB)

The Immigration and Refugee Board (IRB) is part of Immigration Canada. It has four main divisions:

Immigration Division: The body that conducts admissibility hearings. An

admissibility hearing (which used to be known as an “inquiry”) occurs when Immigration suspects a person has violated the admissibility criteria in the

Immigration and Refugee Protection Act and may be subject to removal from

Canada.

Refugee Protection Division: The body that determines whether your client

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Immigration Appeal Division: The body that hears appeals regarding denials

of admission, removal orders, and refusals of sponsorship applications.

Refugee Appeal Division: The body that hears appeals regarding denials of

refugee status.

The address in Vancouver for the Immigration & Refugee Board is: Immigration & Refugee Board

1600 - 300 West Georgia Street Vancouver, BC

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SCENARIO 1

What happens in this case?

If your client does not marry her sponsor within 90 days of her arrival to Canada, she is in contravention of the condition of landing. An immigration officer will consider the reasons why your client failed to comply with terms and conditions of landing, including evidence of abuse.

An immigration officer has the discretion to release your client from the requirement to marry her fiancé. The immigration officer also has the discretion to refer the matter to the immigration division of the IRB for an admissibility hearing. She can lose her permanent resident status only at the admissibility hearing level.

It is very important to be proactive. It is not a good idea for your client to “lie low” and hope that Immigration Canada will just forget about her. Keep in mind that her fiancé may have already turned her in. As soon as your client has made a final decision to not go through with the marriage, she should try to get a lawyer and advise Immigration Canada. She needs to tell Immigra-tion Canada she will not be complying with the terms and condiImmigra-tions of her landing and give reasons for her decision not to marry.

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What steps can your client take?

Your client should try to get a lawyer to help her prepare a statement. The statement should provide the information that will help Immigration Canada to fully understand your client’s circumstances.

Information that Immigration Canada may consider includes:

• information to show that her engagement was genuine but that she was unable to follow through with marriage because of the abuse

• information to show that her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• information to show that she has a substantial connection to Canada • information to show that she will be able to support and establish herself

in Canada

• if she has children, information to show that they are established in Canada and/or will encounter hardship if they are forced to return to the country of origin

• any other information that your client feels is relevant

She needs to send this to the immigration officer with a request to change the terms and conditions of her landing. Immigration Canada may say she is not required to marry.

The immigration officer will probably call your client in for an interview. The immigration officer will ask her about the details of her circumstances and experiences. She should take copies of all documentation that will support her reasons for needing to remain in Canada. Your client can bring a support person to the interview.

What other things can she do to strengthen her case?

Since your client got permanent resident status at the point of entry into Canada, she can get a Social Insurance Number and seek work and/or attend school. This will help her increase her level of “establishment” (Immigration Canada’s term for the way an immigrant builds a new life). If possible, she should avoid going on employment assistance (welfare). Being on employ-ment assistance could have a negative impact on her application.

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You can help your client by providing her lawyer with information about her background, her situation, and the difficulties she would face in her country of origin. You can also help by gathering relevant documentation from police, transition houses, employers, etc. Do not go beyond the information the lawyer requests or the information that your client wants to disclose.

To find out what information and documents are useful in the statement, see the section on Humanitarian and Compassionate Applications –“H&C Applications” – on page 32.

What happens next?

If the officer decides that your client does not have to meet the marriage requirement, the officer will note on her file that there should be no further action. If the officer decides to send the matter to an admissibility hearing, they will send your client a “Notice to Appear.” This notice gives her the date and time of the admissibility hearing and says that she must attend.

What happens if it goes to the admissibility hearing level?

A case at the admissibility hearing level goes to the Immigration Division of the Immigration and Refugee Board (IRB). They will send your client a letter ordering her to appear before the adjudicator.

The adjudicator’s sole concern is whether your client violated the terms and conditions of landing. The adjudicator does not consider the humanitarian and compassionate reasons why she did not meet the terms and conditions. Because your client could not meet the terms and conditions, the adjudicator will most likely decide that a violation occurred, and make a removal order.

What should your client do if she is under a removal order?

If your client loses her status at the admissibility hearing she has a right to appeal to the Immigration Appeal Division of the IRB, which will consider the humanitarian and compassionate factors. The Appeal Division has a great deal more latitude in decision making than the adjudicator at the admiss-ibility hearing.

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If your client has not had a lawyer up to this point, it is very important that she get a lawyer for the appeal process. Under the legal aid guidelines, any financially eligible immigrant who faces removal is entitled to legal aid. She must file for appeal within 30 calendar days of the admissibility hearing decision. Probably she was given a form at the admissibility hearing telling her how to appeal. If not, she can contact an Immigration Canada Centre to get a form.

For further information, see the section on “Appeal of Removal Orders,” page 36.

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SCENARIO 2

Women with In-Canada Sponsorship

Application in Progress

Your client came to Canada as a visitor, temporary worker, or student, and decided to marry a Canadian citizen or a permanent resident. The relationship has become abusive and your client now wishes to separate from her spouse. After their marriage, your client or her spouse made an In-Canada Sponsor-ship Application. This type of application is processed in two stages. In the first stage of the assessment, the applicant asks for a visa waiver. In the second stage of the assessment, Immigration Canada assesses the applicant for

permanent resident status.

You need to know exactly what stage of the application process your client is at. It is also important to make sure she has legal status in Canada at all times. If necessary, she should apply for an extension to her visitor visa.

The following information will help you find out where she is at in the application process, and the possible steps to take.

STAGE ONE of In-Canada Sponsorship Applications

In the first stage of assessment and within the same application, the applicant asks for an exemption from the immigrant visa requirement. This exemption is called a “visa waiver.” Your client has to show that the marriage is “genuine” (i.e. it was not for the purpose of immigration) and that she would face significant hardship if she had to apply from outside Canada.

If Immigration Canada finds that there are humanitarian and compassionate grounds, they will send your client a letter saying that they have approved her application for processing.

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What happens if a woman separates from her sponsor before getting her visa waiver?

If Immigration Canada has not sent your client a letter saying that the visa requirement has been waived, her eligibility to apply as an in-Canada applicant is in jeopardy. With the help of a lawyer, your client will need to contact her immigration officer and modify her application. She is no longer a sponsored applicant. She will now be applying as an independent

immigrant based on humanitarian and compassionate grounds.

Your client may be able to avoid paying a second $500 processing fee. She can ask to get her sponsorship application (Applying for Permanent Residence from Within Canada – Spouse or Common-Law Partner Class) converted into a Humanitarian and Compassionate application (Applying for Permanent Residence from Within Canada – Humanitarian and Compassionate Cases).

If she can satisfy the requirements for a visa waiver, she may be approved for landing from within Canada. If relevant to her situation, she should mention these points:

• her marriage was genuine but she was unable to stay with her sponsor because of the abuse

• her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• she can show she has a substantial connection to Canada • she will be able to support and establish herself in Canada She should also be ready to:

• describe the effect that removal would have upon any children who are currently in Canada and provide evidence (copies of birth certificates) of any Canadian children

• provide information concerning hardship to any Canadian citizen or permanent resident, such as elderly persons, if she is removed

In her first sponsorship application, her main reason for the visa exemption was that the hardship of being separated from her spouse made it necessary for her to apply for permanent resident status while in Canada. Now that her spouse is no longer a reason to remain in the country, she will have to find a justifiable reason for making an In-Canada application. Examples of

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circum-stances where In-Canada applications may be appropriate are listed in the section on “H&C Applications,” page 32.

If your client’s safety or well-being would be in jeopardy if she returned to her home country, she may have the grounds to make a viable refugee claim. It is also possible that your client qualifies as a member of the independent class. She may remain in Canada as long as her visitor status is current. Her application for landing may be sent to any consulate outside Canada. It is important to remember that if she applies through a Canadian consulate in the United States, she must be able to obtain a visa to enter the USA for an interview. This can be difficult.

What else can she do to strengthen her application?

At this point, your client is not eligible for a work permit, education permit, or employment assistance. She can apply for hardship assistance, described on page 46, through the province’s Ministry of Human Resources. This could have a negative impact on her application for a visa waiver, although the immigration officer who decides her case has the discretion to grant the visa waiver and will consider her future plans for employment. CIC will under-stand that she is not able to work. However, after she gets the visa waiver, she should try to find other means of supporting herself. Receiving ongoing government financial assistance will affect her eligibility for permanent resident status.

What happens if her application is refused?

Immigration Canada may refuse your client’s application if the immigration officer is not convinced that sufficient humanitarian and compassionate grounds exist to warrant processing from within Canada. The $500 process-ing fee will not be refunded. If the client’s circumstances change or she feels she has new information that would change the content of her application, she can reapply and pay another $500 processing fee.

If possible, your client should extend her immigration status so that she is legally in Canada. If she cannot maintain legal status in Canada, she may have to leave Canada and apply from abroad.

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STAGE TWO of In-Canada Sponsorship Applications

In the second stage of the assessment of In-Canada applications, Immigration Canada considers whether or not the applicant meets the conditions for landing. To be admitted, the applicant has to meet the health criteria, not have a criminal record, and be able to support herself. The decision can take 12-24 months or longer. One reason for the length of time for processing is that background checks are normally made in the client’s country of origin and in any other countries where she has lived for six months or more.

What happens if a woman separates from her sponsor after she has a visa waiver but before she gets permanent resident status?

If your client separates from her sponsor after she has her visa waiver, her eligibility to apply while in Canada will not be affected. After her visa has been waived, the sponsorship cannot be withdrawn and her application will continue to be processed in the same way. However, her separation may affect her ability to meet the admissibility criteria if she is not able to support herself. Because she has a visa waiver, she can apply for a work or education permit and begin to work and/or go to school. Your client may also be eligible for spousal support. You can refer her to a family lawyer.

If your client needs to go on welfare, this will make her inadmissible for permanent resident status under the financial criteria set by the Immigration

and Refugee Protection Act.

Even though your client is still technically sponsored by her spouse, she is not obligated to remain in any sort of relationship with him or have any contact whatsoever. Your client is entirely free to live independently and sever all ties with her former spouse.

Immigration Canada may refuse your client’s application if she does not meet the financial, medical, or criminal record requirements set by the

Immigration and Refugee Protection Act.

At the time your client’s visitor status expires, she is expected to leave Canada voluntarily. Your client can apply to extend her visitor status. However, if she

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has been refused landing, is it unlikely that Immigration Canada will give her an extension since she is clearly not in Canada for a temporary purpose, and is therefore not a genuine visitor.

If your client does not successfully extend her visitor visa and fails to leave Canada voluntarily, an immigration officer may make a departure order that would require her to leave Canada within 30 calendar days. If she doesn’t leave, the departure order becomes a deportation order. Your client would then require written permission from the Minister of Citizenship and Immigration if she ever wishes to return to Canada.

What if her application is accepted?

If Immigration Canada grants your client permanent resident status, she can now apply for welfare and this will not affect her permanent resident status. Her spouse will still be bound by his undertaking of assistance and will be expected to repay any money she gets from the government. This is an important element of any negotiations to reach a separation agreement.

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SCENARIO 3

Women Who Do Not Have an Application

in Progress

Your client is married or living in a common-law relationship with a Canadian citizen or permanent resident who took responsibility for managing her immigration application process. Her sponsor led her to believe that her application was in progress, when in fact he had not made an application on her behalf. She is living illegally in Canada with no status and no visitor’s visa and is being abused by her spouse.

What steps should she take?

If your client wishes to remain in Canada, this is a very serious situation. She should do everything she can to get a lawyer. If she can meet an H&C application (Humanitarian and Compassionate), she needs to file it with Immigration Canada. (Applying for Permanent Residence from Within Canada – Humanitarian and Compassionate Cases). See the section on “H&C Applications” on page 32. A lawyer can arrange an appointment with an immigration officer and will attend that interview with the client.

If she can satisfy the requirements for an H&C application, she will likely be granted a visa waiver as an independent applicant. If relevant to her situation, she should mention the following points:

• her marriage was genuine but she was unable to stay with her sponsor because of the abuse

• her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• she can show she has a substantial connection to Canada • she will be able to support and establish herself in Canada

• her children are established in Canada and/or will encounter hardship if they are forced to return to her country of origin

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You can help your client to identify and gather the information she needs. Your client should discuss these issues with her lawyer. She should also ask the lawyer how to make sure she can maintain admissibility. See page 35 (The Second Assessment: Permanent Residence) for information on how to maintain admissibility.

Caution your client about applying for employment assistance (welfare) if she has any other options. Before she gets a visa waiver, being on hardship assistance should not affect her application, although it could. Having an alternate means of support will definitely be a factor considered in her favour. However, once she has a visa waiver and is being considered for permanent resident status, being on employment assistance (welfare) will probably have a negative impact on her admissibility

Talk to your client about getting a family lawyer so that she can consider applying for spousal maintenance. Warn your client that many family law matters are no longer covered by Legal Aid in British Columbia. (See page 38.) If your client is involved with both an immigration lawyer and a family lawyer, make sure they are aware of each other.

It is very important to find out if your client has a viable claim for refugee status. Your client should speak to a lawyer to find out if she should pursue this avenue.

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SCENARIO 4

Misrepresentation

Your client is currently in an abusive relationship with her sponsor and wishes to separate. She acknowledges that she or her spouse falsified or omitted relevant information on her immigration application.

Your client may fear that her spouse will disclose this misrepresented infor-mation to Immigration Canada as a means of revenge if she breaks up the marriage. Alternately, she may have only recently become aware of this misrepresentation and now wishes to come forward.

A woman who has misrepresented her situation may be at risk in her intimate relationship because she may feel that she needs to stay with her abusive sponsor due to his threats and her fear of deportation.

Immigration Canada says a “misrepresentation” (also called a “misrep”) happens when an immigrant or refugee gains admission to Canada by misrepresenting, suppressing, or concealing any relevant fact. The mis-representation can come from the applicant or from another person. Immigration Canada views misrepresentation as a serious act.

The onus is always on the applicant to provide true and accurate information. Your client would have signed a declaration on her application form saying that it contained accurate information. There is a possibility of criminal charges for misrepresentation under the Immigration and Refugee Protection Act. If your client is in this situation, you need to find out whether or not she has permanent resident status.

If your client does not have permanent resident status and her

application is in progress

Your client must advise Immigration Canada of any change in her circum-stances or any information that needs to be corrected. She needs to do this in writing and as soon as possible. She should get legal advice before she does this. A lawyer will help her present her case to Immigration Canada.

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She should contact Immigration Canada and say that she wishes to change some of the facts on her application. What action Immigration Canada takes will depend on whether the new information affects her admissibility.

If your client fails to report these facts immediately, she may have to report them after she has received permanent resident status. It will be much more problematic for her to change the information after she has permanent resident status.

If your client has permanent resident status

Your client is at risk of losing her permanent resident status. The severity of her misrepresentation depends on whether the undisclosed information would have affected her admission. Examples of misrepresentation that can affect admissibility include omitting information about:

• children in her country of origin

• a previous marriage that was not terminated

• any crimes or criminal convictions (see note on page 35)

What are her legal rights and options?

Your client should try to get a lawyer to help her prepare a statement

explaining the reasons for the misrepresentation and why she needs to stay in Canada. If relevant to her situation, she should mention these points:

• information about the abuse and the way in which her situation may have compelled her to misrepresent or omit information

• information to show that her safety/well-being will be in jeopardy if she is forced to return to her county of origin

• information to show that she will be able to support and establish herself in Canada

• information to show the effect that removal would have upon any children involved

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What can she do to increase her chances of staying?

Your client should make sure she has a Social Insurance Number. If at all possible she should either be working or going to school. If she has received a visa waiver but does not yet have permanent resident status she should apply for a work/education permit and seek work or schooling.

You can help your client by providing her lawyer with information about her background, her situation, and the difficulties she would face in her country of origin. You can also help by gathering relevant documentation from police, transition houses, employers, etc. Do not go beyond the information the lawyer requests or the information your client wants to disclose.

Interview with the immigration officer

An immigration officer will probably call your client in for an interview. The immigration officer will ask her questions about the misrepresentation. Your client has the right to have a lawyer present. If your client does not have a lawyer, you may be able to attend the interview. If you attend the interview with your client, you are there as an observer and to provide support and information to your client before and after.

Depending on the nature of the information and your client’s status, it is possible that the immigration officer will send the case on to an admissibility hearing.

What happens at the admissibility hearing?

The adjudicator looks at whether your client violated any terms and con-ditions of landing. The adjudicator does not consider the humanitarian and compassionate reasons for the misrepresentation. Because of this, the

adjudicator will often have no choice but to make a removal order.

What should she do if she gets a removal order?

Your client can appeal. She should do this with the help of her lawyer and within 30 calendar days of the admissibility hearing decision. The appeal is made to the Appeal Division of the IRB. See the section on “Appeal of

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SCENARIO 5

Women Applying for Convention Refugee

Status

A Convention refugee is someone who has been found to fear persecution in her or his country of origin because of race, religion, nationality, member-ship in a social group, or political opinion. In Canada, the Refugee Protection Division of the IRB decides who is a Convention refugee.

If your client has been found to be a Convention refugee then she is not at risk of removal when she separates from her abusive spouse, even if she has yet to receive permanent resident status. She may also receive welfare benefits without having this affect her application.

If your client’s refugee claim is still in progress (being decided by the Refugee Protection Division) and her claim is based on her spouse’s fear of persecution then she may wish to apply to the Refugee Protection Division to sever her claim and proceed independently. There is no guarantee that such an applica-tion will be granted. Your client should get a lawyer, particularly if the claims are joined and your client has a restraining order against an abusive spouse. The success of your client’s application depends on her ability to argue that she has a well-founded fear of persecution because of her race, religion, nationality, or membership in a particular social group, or political opinion. She should mention any problems she will face if she is forced to return to her country of origin.

It is important to note that your client’s grounds for fearing persecution may have arisen during her time in Canada. It is possible that the breakdown of her marriage may create new grounds for fearing persecution in her country of origin. An abused woman may fear persecution by her family, community, or society at large in her country of origin. Your client should talk to her lawyer about the impact of the separation on her refugee claim.

If your client and her spouse now have opposing interests and they’ve both used the same lawyer in the past, they each need a new lawyer.

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If your client’s claim is denied, she will have two options. She can pursue both of these options at the same time.

• First, she can apply for landing from within Canada on Humanitarian and Compassionate grounds. (Applying for Permanent Residence from Within Canada: Humanitarian and Compassionate Cases). See the section on “H&C Applications,” page 32.

• Second, your client can have a lawyer look at the reasons for the denial and see if there are grounds for an appeal. The negative decision can be appealed to the Refugee Appeal Division of the IRB. If the appeal fails, there may be grounds for a judicial review at the Federal Court level. Your client needs a lawyer in order to proceed with an appeal.

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SCENARIO 6

Women with Children and No Permanent

Resident Status

Your client gave birth to a child while living in Canada or brought a child to Canada and does not have permanent resident status. Her spouse is a perma-nent resident or Canadian citizen and he agreed to sponsor her. However, he is abusive and your client wishes to separate, but she is afraid she will be deported and that she will lose her child.

Under Canadian immigration law, having a Canadian born child does not automatically give her a right to remain in Canada. However, when determin-ing an application, an immigration officer must take into consideration the best interests of any children who are affected.

What does your client need to do?

Your client has two issues to deal with:

1. If she wishes to stay in Canada, she must secure her immigration status. 2. She has to decide about custody of her child.

With the help of a lawyer, your client can make an H&C application as an independent applicant. If she has a sponsorship application already in progress, refer to the section on “Women with In-Canada Applications in Progress,” on page 15. If she has not applied, follow the guidelines in the section on

“Women Who Do Not Have an Application in Progress,” on page 20.

The existence of children, whether born in Canada or not, is a relevant con-sideration where removal from Canada would result in some harm to the child. This harm may take the form of financial hardship, separation from a parent, or many other possible consequences.

If the children are not Canadian citizens or permanent residents, the

immigration officer must look at their ties to Canada and the negative impact of removing them.

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If child custody is an issue, your client will also need a family lawyer to help her seek custody, and if appropriate child support from the child’s father. She can be doing this at the same time as she is dealing with her immigration issues. More information is available in the free booklet called, If Your Marriage

Breaks Up, produced by the Legal Services Society. This booklet is available in

English and French. See page 46 for how to get a copy.

If the client herself is under the age of 19, contact the migrant coordinator of the Ministry of Children and Family Development.

It is possible that your client has a restraining order against her spouse, but is still under a deportation or removal order. Particularly if she is under an order to not remove her child from the country, she has a strong case for an independent application on humanitarian and compassionate grounds (Applying for Permanent Residence from Within Canada – Humanitarian and Compassionate Cases). See the section on “H&C Applications,” page 32. If her application is unsuccessful, she can appeal.

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Additional Scenarios

Women Who Are “Accompanying Dependents” Under the

Entrepreneur Program

Your client was granted conditional permanent resident status as an accompanying dependent under the conditions of the “Entrepreneur Program.”

Entrepreneurs and their dependants are admitted to Canada on the condition that they establish and actively manage a business in Canada within two years of arrival. Your client is being abused by her spouse. She wishes to separate before they meet the business requirements. Unless she is able to start a

business on her own, she will not be able to fulfill the terms and conditions of landing. She is therefore at risk of being forced to leave Canada.

What should your client do?

Your client will need to contact an immigration officer to acknowledge the changes in her circumstances. The immigration officer has the discretion to refer the matter to an adjudicator for an admissibility hearing. She can lose her permanent resident status only at the admissibility hearing level.

If your client loses her permanent resident status, and she will encounter sig-nificant hardship upon returning to her country of origin, the application that will have the greatest chance of success is an application on humanitarian and compassionate grounds (Applying for Permanent Residence from Within Canada– Humanitarian and Compassionate Cases). See the section on “H&C Applications,” page 32. It will be helpful to your client’s case to begin the divorce process and start to negotiate child custody if there are children involved. Your client should get a lawyer if she can.

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Women Without Permanent Resident Status Who Develop an Illness

or Disability as a Result of the Abuse

Your client does not have permanent resident status and is being abused by her sponsor. She wishes to sever the relationship with her spouse and remain in Canada. However, due to her health issues she may not be admissible under the health guidelines in the Immigration and Refugee Protection Act.

Your client should let Immigration Canada know that her health and abilities have been compromised as a result of the abuse. Immigration Canada will decide whether or not they find her circumstances compelling enough to grant her permanent resident status even with her medical issues.

If she has yet to receive a visa waiver, she can convert her sponsorship

application into an independent application in order to sever her connection with her abusive spouse (Applying for Permanent Residence from Within Canada – Humanitarian and Compassionate Cases). See the section on “H&C Applications,” page 32. If she has a visa waiver, she will have to await a

decision from Immigration Canada to see if they find compelling grounds to grant her permanent resident status.

Women Who Have Sponsored an Abusive Spouse

Your client sponsored her spouse to immigrate to Canada and he is abusive. She wishes to withdraw her sponsorship and no longer be financially respon-sible for her spouse.

You need to find out what stage of the immigration process they are at. If your client is applying to sponsor him and he is already in Canada, it is important to know whether he has received a visa waiver. If he has not received a visa waiver yet, she can withdraw her sponsorship application. If he has received his visa waiver, she cannot withdraw her sponsorship application and is financially responsible for him for 3 years. This cannot be changed. However, she can still divorce him.

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Your client’s responsibility for him will become an issue only if he tries to collect welfare, in which case the government will try to get reimbursement from your client.

If that happens, your client should write a letter to Immigration Canada explaining her circumstances and hope that when the Ministry of Human Resources seeks reimbursement for her spouse’s welfare payments, Immigra-tion Canada will present the letter and may make a case for your client. It is possible that Immigration Canada will not advocate for your client or that the information will be lost in the system. In this case, your client will have to remake information about the abuse. You can help her advocate for herself at this point.

Keep in mind that Immigration Canada’s file on your client’s case is under the name of your client’s spouse. Therefore all documentation sent to Immigra-tion Canada should have the sponsored person’s name on it along with the file number.

Women Working in the Sex Trade

Immigrant women who have been forced into the sex trade face a number of complex issues that will differ significantly from case to case. If your client is working in the sex trade and her immigration status in Canada is at risk, she should try to get a lawyer to help her with all legal and immigration matters.

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Applying for Permanent Residence on

Humanitarian & Compassionate (H&C)

Grounds

How Do H&C Applications Work?

H&C applications can be made through a sponsorship arrangement or as an independent application. There is a two-step decision-making process for these applications. In the first step, the applicant applies for a “visa waiver” so that she does not need to return to her country of origin to make an applica-tion for permanent resident status. In the second step, Immigraapplica-tion Canada assesses the applicant for admissibility as a permanent resident.

The First Assessment: the H&C Decision

In the first stage of the assessment process, the immigration officer assesses whether there are humanitarian and compassionate grounds to exempt the applicant from the visa requirement. The immigration officer considers the information the applicant presents as well as all other information previously known to Immigration Canada.

There are no particular eligibility criteria in this stage of the application. It is helpful if your client can show two facts:

1. Given her particular circumstances, the hardship of having to obtain a visa from outside of Canada would be (i) unusual, undeserved, and the result of circumstances beyond her control, or (ii) disproportionate. 2. She has become established in Canada.

In the Citizenship and Immigration Canada Policy Manual, immigration officers are directed to consider the following factors. Use these factors as a guide in preparing the H&C application.

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Information about the abuse

Information showing there was abuse, such as: • police incident reports

• court information regarding charges or convictions

• reports from transition houses/shelters, community or other women-serving agencies

• medical reports from doctors, hospitals, clinics etc. A personal chronicle of the abuse indicating:

• when the abuse began

• any incidents (with as much detail as possible i.e., date, details, witnesses); • whether the abuse has escalated

• level of fear and risk

Information about your client’s establishment in Canada

Factors that can show establishment include: • history and records of employment

• financial records

• documents showing that your client has integrated into the community, through being involved in community organizations, in volunteer work, or other activities

• any documents or certificates from professional, language or other study that show your client’s integration into Canadian society

• information about any children who would be affected by the removal • information about the effect that her removal would have on any Canadian

citizen or permanent resident (such as an elderly person) that she is close to

Information about hardship if your client is forced to return to her country of origin

Factors that can show hardship include:

• customs and culture in the applicant’s country of origin

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• applicant’s pregnancy

• applicant’s children and any hardship they will endure if forced to return to their mother’s county of origin

• length of time in Canada

• the sponsor will be returning to the country of origin • the marriage or relationship was genuine

• political unrest or war in the county of origin

This is not a complete list. Your client should provide any information that she feels would be relevant and beneficial to her case.

The Interview

In most cases, the immigration officer will call your client in for an interview. She should take as much documentation as possible. The immigration officer will ask her questions about the information in her H&C application. She can have her lawyer with her at the interview.

As her service provider, you will probably be able to attend the interview. Contact the immigration officer for permission.

What happens if the application is accepted?

If your client’s application is approved for processing, Immigration Canada gives her an exemption from the visa requirement or a “visa waiver.” They will then consider her for permanent resident status.

Your client’s application may be refused if:

• there are insufficient humanitarian and compassionate grounds to process it from within Canada

• the arrangements for her care and shelter are inadequate • she does not pass the medical or criminal record checks

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If your client has new information that would change the content of her application, she can reapply and pay another $500 processing fee. However, if possible, your client should extend her immigration status so that she is legally in Canada. If she cannot maintain legal status in Canada, she will have to leave Canada and apply from abroad.

The Second Assessment: Permanent Residence

When Immigration Canada approves the visa exemption, they then consider the applicant for permanent residence. To be granted permanent resident status, the applicant must meet the admissibility requirements.

Although an application may be successful in the first assessment, this does not mean that the second assessment will also be successful.

Here are some of the factors that may make your client inadmissible. They may have been affected by the sponsorship breakdown:

• medical inadmissibility (danger to the public or placing undue demands on the health care system)

• receiving employment assistance (including hardship assistance)

• criminal charges and/or convictions (Note: sometimes there are exceptions made for minor records form the past. For information, contact an

Immigration Canada Call Centre, listed on page 9.)

If the immigration officer uses any information that was made by someone other than the applicant, the officer must tell your client about the infor-mation and give her time to respond.

If the applicant is not successful after this second assessment, she will then have the right to appeal. For further information, see the section on “Appeal of Removal Orders,” page 36.

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Appeal of Removal Orders

Who can appeal?

Your client can appeal a removal order:

• if she is a permanent resident or has a valid returning resident permit; or • if she is a visa holder or Convention refugee

Under the Immigration and Refugee Protection Act, your client must make a notice of appeal within 30 calendar days.

Who hears the appeal?

Members of the Immigration Appeal Division (IAD) of the IRB hear the appeal. The hearings are held in public and operate much like a regular court. However, the rules of evidence are somewhat more flexible and the IAD can consider any evidence it believes credible and trustworthy. The IAD considers questions of law and fact as well as humanitarian and compassionate concerns.

What are the possible results of an appeal?

The IAD can take one of three actions following an appeal hearing:

• dismiss the appeal (the appeal is rejected and the removal order is confirmed) • allow the appeal (the appeal is successful and the removal order is cancelled) • stay the appeal

In cases involving permanent residents or anyone with a valid returning resident permit, the IAD can postpone the removal order for a certain period of time and impose terms and conditions on the person. If at the end of that period, the person has followed these conditions, the IAD may cancel the removal order. If the conditions have not been met, Immigration Canada can apply to have the stay lifted and carry out the removal.

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Pre-Removal Risk Assessment (PRRA)

If your client faces imminent removal from Canada, she is entitled to a Pre-Removal Risk Assessment (PRRA). An immigration officer makes this assessment. The officer considers any information that was not previously presented to the Refugee Protection Division at your client’s refugee hearing or to the Immigration Division at your client’s immigration hearing.

Your client must request the assessment. At the first removal interview, the immigration officer must advise the client of her right to the PRRA.

The immigration officer will give your client a form to fill out to request a risk assessment. She has 15 calendar days to return the completed form to the removals office. She then has another 15 calendar days to provide Immigration Canada with any further information, submissions, or documentation

concerning the risk she would face if she returns to her country.

Your client must be able to demonstrate that the risk is personal (and not a general risk to all of persons in her country of origin).

Your client must show:

• she would face persecution by reason of her race, nationality, religion, membership in a social group or political opinion, or

• she has serious reasons to believe that she would be subject to torture, or • she would face threats to her life or risks of cruel or unusual treatment or

punishment.

In addition, she must:

• be unable or unwilling to claim protection from her own country because of the risks she would face there, and

• be exposed to these risks in all parts of her country, and

• face a threat or risk that is not the result of legitimate sanctions, except those imposed in violation of international standards, and

• face a threat or risk that does not result from the inability of that country to provide adequate medical or health care.

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Further Resource Information

Legal Representation

Legal Aid

For information, contact the nearest legal aid office. To find the Legal Services Society nearest you, look in the white pages of your phone book under “Legal Aid – Legal Services Society” or in the yellow pages under “Lawyers – Legal Aid – Legal Services Society.” You can also visit the Legal Services Society web site at www.lss.bc.ca

What kind of legal problems are covered?

Your client can get legal aid if she is financially eligible and her problem is covered under the legal aid rules Legal aid will cover your client’s case if she is facing a refugee or deportation hearing and is financially eligible. If your client needs both a family lawyer and an immigration lawyer, she should note this on the application.

What are the financial guidelines for legal aid?

Your client is financially eligible if her household income and assets are at or below the LSS financial guidelines. For information on calculating your client’s financial eligibility, visit the Legal Services Society of BC web site at http://www.lss.bc.ca/legal_aid/finance.asp or contact the nearest legal aid office.

How to apply for legal aid

If your client wishes to apply for legal aid, she should call or visit the nearest legal aid office. She needs to take written proof of her income. Proof of income could be:

• two recent pay stubs • a recent welfare stub

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• a recent income tax return and financial statement (if self-employed) • bank records

Also, she needs to take:

• proof of the value of her assets

• any papers she has about her case, such as court orders and other documents A staff person at the office will ask her questions and ask her to complete a legal aid application.

If your area doesn’t have a legal aid office or if your client can’t get to the office, she can phone the Legal Services Society Call Centre toll free at

1-866-577-2525 to apply for legal aid. When she calls, she needs to have all of the information listed above about her income, assets, and legal problem.

What else does your client need to know?

• Your client must give the legal aid office or call centre complete and true information about her income, savings, and assets.

• If she qualifies for legal aid, she must let the legal aid office know if her income changes.

• If her financial situation improves and she is no longer eligible for legal aid, she will be responsible for paying her lawyer.

Appeals of legal aid eligibility

If your client is told she does not qualify for legal aid, she can appeal. She needs to ask the legal aid office for an appeal form (Legal aid application – Refused) and mail it to the Legal Services Society as soon as possible. She can get an appeal form from her local legal aid office, or write to:

Vancouver Regional Centre

Suite 1500 - 1140 West Pender Street Vancouver, BC V6E 4G1

phone: (604) 601-6000 fax: (604) 682-7967

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Other legal information services

Other services that provide legal information or advice:

Lawyer Referral Service – Canadian Bar Association (BC Branch)

The Lawyer Referral Service can recommend an immigration bar lawyer if your client needs legal help but doesn’t know where to look. A lawyer will give a 30-minute consultation for $10. She can then decide if she wants to hire that lawyer. In the Lower Mainland, she can call the Lawyer Referral Service at (604) 687-3221. Outside the Lower Mainland, call 1-800-663-1919.

Law Line – Legal Services Society

Staff on the Law Line can answer legal questions and direct you to other information or services. Staff can provide information about the law but can’t give legal advice. Phone:

• (604) 408-2172 (Lower Mainland)

• 1-866-577-2525 (toll free, outside the Lower Mainland)

Law Students Legal Advice Program

Students at the UBC Faculty of Law provide free legal advice at 20 clinics in the Lower Mainland. Call (604) 822-5791 to find the clinic nearest your client.

Dial-A-Law

Dial-A-Law is a program of the Canadian Bar Association (BC Branch) that provides information on legal topics through a collection of telephone recordings and a website.

You can phone Dial-A-Law:

• (604) 687-4680 (Lower Mainland)

• 1-800-565-5297 (toll free, outside the Lower Mainland)

You can visit the website: http://www.bccba.org/Guest_Lounge/dial-a-law.asp.

Employment Authorization

If your client has permanent resident status

Your client can apply for a Social Insurance Number by contacting a Human Resources Development Canada Office.

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She will need to show one of the following documents: Canadian Immigration Record and Visa or Record of Landing, Confirmation of Landing Document, Canada Travel Document, Canadian Certificate of Identity or a foreign passport stamped “Permanent Resident.”

There is an administrative fee unless your client is a refugee claimant. Forms are also available at Canada Post offices and through many immigrant-serving agencies.

What if your client does not have permanent resident status but her H&C application has been approved for processing?

Your client can apply for employment authorization if she has made an H&C application and has been granted a visa waiver.

Your client will need to fill out an “Application to Change the Terms and Conditions or Extend Your Stay in Canada.” To get a copy of the form, contact a Citizen and Immigration Canada Call Centre, or download it from the Internet: http://www.cic.gc.ca/english/applications/visitor.html.

What if your client’s H&C application has not been approved for processing?

Your client is not eligible for employment authorization until her application has been approved for processing.

If your client is facing financial difficulties while awaiting this approval, she can apply for hardship assistance through the Ministry of Human Resources. See section on “BC’s employment assistant programs – if your client is not a permanent resident” on page 46. Receiving hardship assistance is not

supposed to affect the likelihood that her application will be approved for processing.

However, in the second stage of the H&C application process, receiving financial assistance will almost always negatively affect her admissibility. Therefore, if she is approved for processing, she should apply for work authorization as soon as possible and become financially self-sufficient.

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What if your client is a refugee claimant?

If your client has applied for refugee status and no final decision has been made, she can apply for employment authorization if:

• she cannot support herself without recourse to welfare

• she and her dependants have completed a medical examination • she has been fingerprinted and photographed

• she has submitted her Personal Information form to the IRB

Your client will need to fill out an “Application to Change the Terms and Conditions or Extend Your Stay in Canada.” The application fee is waived.

What if your client is under a removal order?

Your client can apply for employment authorization under the category “destitute persons” if:

• she is under a removal order that has been stopped or stayed by the IRB • she is awaiting a decision on the appeal of her removal order

Your client will need to fill out an “Application to Change the Terms and Conditions or Extend Your Stay in Canada.”

How much does it cost to make an “Application to Change the Terms and Conditions or Extend Your Stay in Canada”?

See the “Guide” to the “Application to Change the Terms and Conditions or Extend Your Stay in Canada” in order to calculate the fee.

Are there any terms and conditions on an Employment Authorization?

An immigration officer may impose terms and conditions when they issue an Employment Authorization.

These may include one or more of the following:

• the type of employment in which the client may work • the employer for whom she may work

• where she may work

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Education

What is a Student Authorization?

This is the official document issued by a visa or immigration officer that allows the person to study at an educational institution in Canada.

What courses do not require a Student Authorization?

A Student Authorization is not needed for:

• an English or French language course that is not longer than three months duration in total

• courses that are not academic, professional or vocational in nature • self-improvement, general-interest courses such as arts and crafts • courses included in tour packages as a secondary activity for tourists

What if your client has permanent resident status?

Your client can apply for a Social Insurance Number by contacting a Human Resources Development Canada Office She will need to show one of the following documents; Canadian Immigration Record and Visa or Record of Landing, Confirmation of Landing Document, Canada Travel Document, Canadian Certificate of Identity or a foreign passport stamped “Permanent Resident.” There is an administrative fee. Forms are also available at Canada Post offices and through many immigrant-serving agencies.

What if your client does not have permanent resident status but her H&C application has been approved for processing?

Your client can apply for Student Authorization if she has made an H&C application and has been granted a visa waiver.

Your client will need to fill out an “Application to Change the Terms and Conditions or Extend Your Stay in Canada” which is available by contacting a CIC Call Centre or online at http://www.cic.gc.ca/english/applications/ visitor.html.

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What if your client’s H&C application has not been approved for processing?

Your client cannot apply for Student Authorization if her H&C application has not been approved for processing. She can take courses that do not require Student Authorization, as described above.

What if your client is a Convention refugee or her refugee claim has been sent to the IRB?

Your client can apply for Student Authorization if she is a Convention refugee or her refugee claim has been sent to the IRB. She will need to fill out an “Appli-cation to Change the Terms and Conditions or Extend Your Stay in Canada.”

What other information does she need?

In addition to the requirements for all visitors, your client must provide the following documents:

For attendance at a university, college or other post-secondary institution, your client should provide a letter, registration paper, or form from the education institution that shows:

• confirmation of your client’s acceptance and/or registration as a student • the course of study

• how many courses she will be taking and/or how many hours she will attend each week (not required if you are attending a university or college) • intended start date and when she expects to finish the academic program • any condition related to her acceptance or registration (when there is a

condition related to her registration, she might have to show that she has met the condition before a Student Authorization can be issued)

Will she be attending a primary or secondary school? Your client should provide a letter from the school, school board, district or division responsible for the school she will be attending, showing the level of study and the date she expects to finish her studies.

If your client has children, she does not need to show a letter of acceptance to obtain a Student Authorization for her children to attend a primary or

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Proof of financial support while she studies

Your client must prove she will have enough money (in Canadian funds) to support herself while she studies in Canada. This can include:

• a bank statement or a letter from a Canadian bank showing how much money she has in her bank account (she must indicate her name and the account number)

• a copy of the letter giving the details about her scholarship or Canadian-funded educational program (such as a CIDA program)

• a letter from a person (describe the relationship to the client) who is giving her financial help, explaining the arrangements made for her expenses. (This information is protected under the Privacy Act and cannot be released to a third party without the sponsor’s consent.)

If your client’s refugee claim has gone to the Refugee Division, she does not have to give proof of financial support.

Are there any terms and conditions on her Student Authorization?

An immigration officer may impose terms and conditions on a Student Authorization. These may include one or more of the following:

• not allowed to work in Canada

• must attend the university, college or institution specified • must attend the type of educational institution specified

BC’s employment assistance programs

If your client has permanent resident status

If your client is a permanent resident, she is eligible for employment assist-ance (welfare).

To find out how to apply and what the rates are, contact the Ministry of Human Resources local offices, listed in the blue pages of the telephone book.

Revised: May 2003

ASSISTING

IMMIGRANT

AND

REFUGEE

WOMEN

A B U S E D B Y T H E I R S P O N S O R S

A G U I D E F O R S E R V I C E P R O V I D E R S

B C I N S T I T U T E AG A I N S T FA M I LY V I O L E N C E

Acknowledgments

Contents

Introduction

Who is this guide for?

What is abuse?

What is in this guide?

Structure of Citizenship and

Immigration Canada

Immigration and Refugee Board (IRB)

SCENARIO 1

Sponsored Fiancée

What happens in this case?

What steps can your client take?

What other things can she do to strengthen her case?

What happens next?

What happens if it goes to the admissibility hearing level?

What should your client do if she is under a removal order?

SCENARIO 2

Women with In-Canada Sponsorship

Application in Progress

STAGE ONE of In-Canada Sponsorship Applications

STAGE TWO of In-Canada Sponsorship Applications

SCENARIO 3

Women Who Do Not Have an Application

in Progress

What steps should she take?

SCENARIO 4

Misrepresentation

If your client does not have permanent resident status and her

application is in progress

If your client has permanent resident status

What are her legal rights and options?

What can she do to increase her chances of staying?

Interview with the immigration officer

What happens at the admissibility hearing?

What should she do if she gets a removal order?

SCENARIO 5

Women Applying for Convention Refugee

Status

SCENARIO 6

Women with Children and No Permanent

Resident Status

What does your client need to do?

Additional Scenarios

Women Who Are “Accompanying Dependents” Under the

Entrepreneur Program

Women Without Permanent Resident Status Who Develop an Illness

or Disability as a Result of the Abuse

Women Who Have Sponsored an Abusive Spouse

Women Working in the Sex Trade

Applying for Permanent Residence on

Humanitarian & Compassionate (H&C)

Grounds

How Do H&C Applications Work?

Appeal of Removal Orders

Who can appeal?

Who hears the appeal?

What are the possible results of an appeal?

Pre-Removal Risk Assessment (PRRA)

Further Resource Information

Legal Representation

Employment Authorization

Education

BC’s employment assistance programs