Filipiniana News – August
2014
RHYME & REASON
Caregivers Must Be Granted Permanent Residence Upon Arrival
In last month's column, I wrote about the recent major changes to
the temporary foreign worker program that were announced by the government in
June 2014, as well as the likelihood that the Live-in Caregiver Program (LCP)
will be next on the chopping block.
This "likelihood" threatens to become a reality anytime
soon. In July 2014, the office of Citizenship and Immigration Canada (CIC)
Minister Chris Alexander invited a handful of people from the Filipino
community in Toronto to a consultation meeting where he laid out the
government's proposed changes to the LCP.
The proposed changes include making the live-in requirement optional and
removing the government's obligation to grant permanent residency to live-in
caregivers. Instead, the government
proposes to incorporate caregivers into the Canadian Experience Class. However, various details remain unclear as none of these proposals have been
publicly communicated in writing.
Sadly, it appears that these the so-called consultation meetings
were only open to a limited number of invitees.
There were no official drafts of the proposals provided nor any public
record of what was discussed except for informal minutes prepared by some of
the attendees. Hence, the information
disseminated outside of these closed-door consultation meetings was based on
the subjective understanding or best recollection of those who were privileged
to attend.
According to the attendees, the CIC Minister said that, "We do
not want these to be the government's reforms.
We want this to be your (the stakeholders') reforms." If this is true, then it would have made
better sense if the government openly invited proposals from key stakeholders,
especially from the caregivers themselves, instead of framing the proposed
changes on the government's terms.
The issues that the government allegedly wishes to address in
introducing the proposed reforms to the LCP are the 1. vulnerability of live-in
caregivers 2. growing backlog and
lengthy processing time for permanent residence applications and 3. prolonged family separation. These issues have long been pointed out by
critics and advocates as among the main flaws of the LCP. The fact that this government finally admitted the existence of these
problems is a promising start.
However, we hope that the ongoing process of consultations will also
reflect not only an acknowledgment of these serious issues, but also a sincere
desire to resolve the same. These
consultation efforts must be extensive and meaningful, and not simply token
consultations conducted shortly before announcing the changes that have
actually been firmed up.
Although the key stakeholders in the LCP include not only the
caregivers but also the employers, we cannot deny the fact that the interests
of caregivers and employers will never be completely aligned. Due to the intersecting disadvantages
arising from their gender (caregivers are mostly women), precarious immigration
status (temporary workers), origin (mostly from the Philippines or other
developing countries), the scales are tipped against the caregivers vis-a-vis their employers. It is not only the caregivers, but also
their family's future that are at stake in any changes that will be introduced
to this unique immigration program meant to address an undeniable labour market
shortage in Canada.
One thing that the employers could affirm is the great need for
caregivers in Canada due to the lack of a universal daycare program for
children, adequate and affordable care for the disabled and the increasingly aging population of
Canada. Having affirmed this great
need, the only effective way to address the three major issues identified will
be to consider the program from the caregivers' perspective. What factors lead to their
vulnerability? What forms of hardship
result from the lengthy processing of their permanent residence and the
prolonged family separation?
Removing the live-in requirement will greatly help reduce the
vulnerability of caregivers. Granting
them open or generic work permits might be even better. However, as stories of hardship under the LCP
have shown, the caregivers' long wait as temporary foreign workers and while
their permanent residence applications are in process, only served to
facilitate their ongoing vulnerability not only to work-related exploitation
but also to painful and prolonged family separation.
The only way therefore, to level the playing field and protect the
human rights of caregivers while meeting the great demand for this occupation,
is to grant them permanent residence upon arrival in Canada. To ensure that they will abide by the
purpose of their entry to Canada and integrate well in the Canadian system,
certain conditions can be imposed such as slightly higher education and/or
language skills and a caregiver employment contract with a qualified Canadian
employer.
However, compliance with the conditions should be enforceable in the
realm of employment law or contract law, and not immigration law. The eventual breakdown of a
caregiver-employer relationship should not lead to the stripping of one's
permanent residence, but must be dealt with under the appropriate legal forum
(e.g. employment standards dispute or a civil case for breach of
contract). The carrot and stick approach
under the current LCP has forced its caregiver participants to endure abuses
and live in constant fear of removal if the immigration conditions are not satisfied,
despite many years of diligent service to their Canadian employers and valuable
contributions to the Canadian economy.
The injustices committed against caregivers are well-known, have been tolerated for far too long and
simply have to end.
The allegation
that the LCP is turning into a family reunification program does not only
appear to be an exaggeration, but also
smacks of discrimination. It implies
that there are certain classes of people who may be allowed to hire caregivers
but not the former caregivers themselves and/or their families. If the prospective caregiver and the
prospective employer meet the qualifications and the job offer is made in good
faith, why should their kinship matter?
Doesn't it only make sense that more relatives would prefer to hire
people they already know and completely trust to take care of their children,
elderly or disabled family members? And
is the Canadian immigration objective of family reunification meant to be applied
only to those coming under the family sponsorship class? Isn't this objective also meant to serve as a
guiding principle in any class of immigration applications?
As in the
recent CBSA investigation of so-called "runaway nannies" (caregivers
who allegedly leave their employers immediately upon arrival in Canada) there
are undeniably abusers in any program.
However, these isolated cases should not be blown out of proportion to
justify laws that will result in grave prejudice to the law-abiding
majority. If there are truly such cases,
then the solution should focus on fair and proper enforcement and not in
painting all other caregivers with the same tainted brush.
This is to reiterate therefore, the need to push for changes to the
LCP that will fully take into
consideration the systemic issues which lie at the root of the problems within
the program. It is about time that the
LCP is replaced by something far more equitable and humane for its participants
and their families. This will only be realized if caregivers are granted permanent
resident status upon arrival in Canada.
The author is a Filipino-Canadian
immigration lawyer and may be reached at deanna@santoslaw.ca
or tel. no. 416-901-8497.
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