Ready, willing and able, but only requires a second chance
By Faye Arellano
Is there hope for permanent residence (PR) for out-of-status caregivers whose lives are in limbo? The short answer is yes. But how to achieve the desired result may be more complicated than that.
Application on humanitarian and compassionate (H&C) ground is one legal remedy that is commonly done, but proves problematic for caregivers. One major issue with H&C is that caregivers would have to shop around and pay top dollar for the best immigration lawyer to take their case. And even at that, there is no guarantee of approval.
In the case of Maria, who, after spending more than $10,000.00 to pay the legal fees, she still ended up losing her status. The money that she spent for legal expenses, according to Maria, was mostly her savings and some that she borrowed from friends. Her experience also points to the inability of non-status caregivers to resort to H&C and other legal avenues to pursue because of limited or lack of financial resources.
Another means to pursue legal remedies is through application for temporary residence status (TRP). If approved, a non-status caregiver may be issued a work permit and continue to work legally in Canada. TRP may eventually lead to PR. But how long a caregiver has to wait for PR may depend on the discretion of the immigration officer. And depending on how sympathetic the immigration officer is, the wait could take many years before one could even qualify to apply for PR.
However, one viable solution that has never been tried in Canada is to implement an amnesty program specifically for undocumented caregivers. Such program will regularize non-status caregivers, allow them to work legally and put an end to their precarious situation as swell.
These sentiments were echoed by the Migrant Workers Centre (MWC) in their April 29, 2020 paper entitled Amnesty for Undocumented Workers. In calling for an amnesty for migrant workers, including caregivers, MWC argues that undocumented migrant workers are vulnerable to abuse and less likely to exercise their rights. “They face barriers in accessing health care even if they experience serious injuries or illnesses requiring medical assistance due to fear of arrest or inability to pay hospital bills.” MWC added that “these workers are already here, and are ready, willing and able to fill positions and they should be able to do so safely and legally.”
When asked what she would do if she were granted an amnesty, Maria quickly responded: “I will thank God for that day. Matagal ko na pong inaasam na magkaroon ng papel. Mawala ang takot lumabas ng work at stress na dala dala ko every day. Gusto ko pong makita ang family ko sa Pilipinas at madalaw ang puntod ng tatay ko. Gusto ko rin na mag aral ng dental assistance on weekends para ma upgrade ko ang sarili ko. (I have been hoping for that day when I obtain my legal papers. This will relieve me of my fear of venturing outside and remove the stress that I experience every day. I want to see my family in the Philippines and visit my father’s grave. I would also like to study dental assistance on weekends to upgrade myself).”
At the time of writing this article, the Standing Committee on Citizenship and Immigration, chaired by Liberal MP Salma Zahid, tabled its 8th Report to the government.
Entitled “Immigration Programs to Meet Labour Market Needs,” the Report made a total of 13 recommendations to Employment and Social Development Canada (ESDC) and Immigration, Refugees and Citizenship Canada (IRCC) in response to labour shortages in various sectors nationwide.
The Home Child Care Provider Pilot and Home Support Worker Pilot programs for caregivers were also discussed in the Report, which urges IRCC to offer more accessible pathways to permanent residence in order to prevent the abuse of foreign workers with precarious status or non-status individuals.
The Committee also made a specific recommendation to IRCC concerning undocumented caregivers.
Recommendation Number 9 reads: “That the Government of Canada undertake a review of the temporary public policy for out-of-status construction workers in the Greater Toronto Area (GTA) that provided permanent residence to out-of-status construction workers in order to learn best practices to expand the program to include other sectors of work such as caregivers.”
Already, community advocates are seeing this recommendation as a glimmer of hope for undocumented caregivers, who have been shut out of the recently-created pathways to permanence.
In January 2020, IRCC launched a temporary public policy to regularize and provide PR to out of-status construction workers in the GTA.
This temporary policy acknowledges the contributions to the economy and the labour market shortage that construction workers fill.
In its website, IRCC acknowledges that: “Without valid immigration status, these workers and their families have lived in fear and been left feeling very vulnerable.” It adds, “The presence of out-of-status workers in a significant industry leads to a depressed wages for Canadians and makes workers vulnerable to employer exploitation and abuse.”
Aside from the fact that it is the right and equitable thing to do in protecting the vulnerable, Canada stands to benefit enormously from a similar amnesty program for undocumented caregivers, who have mostly worked for Canadian families for years.
Ask any immigration lawyer and they will tell you that caregivers are an essential part of Canada’s labour market needs. In fact, advocates are suggesting that IRCC should also consider removing the cap on the number of participants to the current two pilot programs for caregivers.
Regularizing non-status caregivers would foster a healthier and safer environment for the people that they look after- children, elderly and people with disability.
One Filipino immigration lawyer opines: “If Canada wants younger, skilled professionals, a majority of those young professionals can actively participate in the labour market, if they have people helping them care for their young children. And as the baby boomers grow older, their needs for care will change, and having people helping them with their home care needs will allow their partners and children stay employed and working. Take caregivers away, limit their numbers, block their path to becoming permanent members of this ecosystem, would mean that you remove more skilled workers from the labour market, and instead of growing our economy this will stunt its growth.”
Canada has a proud tradition of welcoming immigrants and Canadians believe that communities are strengthened when people unite to support those who want to build a better Canada, especially the most vulnerable sector like caregivers.
MP Zahid of Scarborough Centre, in announcing the report that she tabled at the end of 43rd session of the parliament, posted on her FB wall: “I would personally like to highlight recommendation 9, which asks the government to look at lessons from the program to provide PR for out of status construction workers in order to expand it to other sectors, such as caregivers. I believe we need to do more for caregivers.”
And if some form of amnesty can be done to regularize and protect construction workers, why not for vulnerable caregivers?