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Old and Repeating Concerns

CHANGES IN LIVE-IN CAREGIVER PROGRAM

Caregivers at the March 29, 2009 forum at OPSEU.

Caregivers and other community members have raised concerns about whether and how the recent changes to the Temporary Foreign Workers Program (TFWP) will affect workers in the Live-in Caregiver Program (LCP). They are also concerned about caregivers being rejected from permanent residence status based on medical grounds, despite changes that came into affect on April 1, 2010.

Will the new 4-year limit affect caregivers?

Citizenship and Immigration Canada (CIC) will enforce a limit on the number of years a foreign worker can work in Canada starting April 1, 2011. Temporary foreign workers (TFWs) can work for a maximum of four years. After, the worker will not be approved for a new work permit in the program until another four years have passed.

The Live-in Caregiver Program is part of the TFWP.

CIC officials have told The Philippine Reporter exceptions to the limit are being considered for people who have applied for permanent residence within the four years, while others are worried about what will happen if caregivers are not exempt.

RAFAEL FABREGAS

In an e-mail interview with immigration lawyer, Rafael Fabregas, on Aug. 25, 2010, he expressed concern “the change will negatively impact live-in caregivers and most temporary foreign workers.”

He explained, “Many caregivers need more than four years from the day they arrive in Canada to finally get their permanent residence.” For example, when LCP workers are applying for their spouses and children to join them in Canada as permanent residents. Fabregas states, “In Manila, the processing of family members takes 15 to 22 months.” If you add this to the two-year work requirement, the total processing time is very close to the four-year limit. This can be further lengthened by complications like spousal disputes incited by the years of separation.

Fabregas’s concerns may be addressed by further changes to immigration laws. CIC is looking into possible exemptions for LCP workers and others on the four-year limit stated Douglas Kellam, a representative from CIC, who responded to questions about the recent announcement in an e-mail interview on Aug. 27, 2010.

He stated, CIC is “developing guidelines to identify exemptions to the four-year limit, and anticipate that applicants who have a permanent residence application in progress will be excluded. That would mean that once a live-in caregiver has two years of work experience and applied for permanent residence, the four year maximum would not be applicable.”

In an e-mail interview with CIC Spokesperson, Karen Shadd, on Sept. 7, 2010 she said full details on the exemptions will be available in operational guidelines before April 1, 2011 when the four-year limit comes into effect.

Other TFWs may be exempted also. “It is likely that a temporary foreign worker who has applied for permanent residency will qualify for an exemption,” said Shadd.

Pura Velasco, a nanny advocate, stated in a telephone interview on Sept. 2, 2010 she had concerns about other caregivers not who are working under the generic ‘low-skilled’ category of the TFWP, but are not in the Live-in Caregiver Program. She said there are caregivers that are doing work outside of the LCP but “for sure will be affected” by this four-year limit and “there’s so many of them like that.”

Can caregivers still be rejected because of medical reasons?

Another legal change that is causing some confusion is whether a caregiver may still be rejected from permanent residence after work requirements are complete based on medical grounds. The April 1, 2010 changes to the LCP removed the requirement that caregivers take a second medical examination.
This was called the Juana Tejada Law, named after the caregiver who was initially rejected from permanent residence because she had cancer.

Kellam and Fabregas confirmed the immigration officer could still ask the caregiver to undergo a medical exam when they apply for permanent residence. This is left up to the immigration officer’s discretion. However, they disagree on the reasons the immigration officer may do so and how often this happens.
Kellam said this is done in instances where the immigration official believes “the applicant has a medical condition that might endanger the health or safety of the Canadian public,” such as tuberculosis.

Fabregas stated a caregiver approached him because she “is being told her application for permanent residence could be refused because she was diagnosed with stage III breast cancer,” which is the second such case since last April he has personally dealt with.

He said, “A caregiver still faces the risk of being required by CIC to undergo a second medical examination, and if they fail that examination they can ask for humanitarian consideration. Remember that this is exactly what Juana Tejada had to do, ask for humanitarian consideration. So if CIC is to be believed, nothing has really changed since Juana’s case.”

The number of cases where a caregiver has been rejected on medical grounds is another point they disagree on.

Kellam stated, “Based on historical data, one or two applicants per year have been in a situation where their second medical exam caused problems.”

According to Fabregas, on top of the two cases he has personally handled since LCP changes last April, community workers helping caregivers in the GTA have told him about other cases of women rejected based on medical grounds. “There is quite a number out there, and we are not even talking about cases outside of Toronto.

What has been the impact of recent LCP changes?

In addition to the LCP changes that came into effect on the federal level in April of this year, the Ontario government and other provinces enacted legislation in Oct. 2009 that was meant to protect live-in caregivers from agencies who charge fees to find the caregiver work and from employers with poor work conditions. Employment laws are under provincial jurisdiction, although the LCP is a federal program.
From Velasco’s perspective on the ground, working for the Caregivers Action Centre, “The unscrupulous agencies and employers are still doing stuff, nothing has changed,” despite that they reported many recruiters.

She stated the case of one recruitment agency, Jinkholme, who recruited Ronnel Cabasunda for the LCP, but the employer ended up being bogus. Cabasunda became a construction worker and now faces a deportation order.

“CIC always want to send the workers home… instead of allowing the person to appeal or allowing RCMP or Canadian Border Services Agency (CBSA) to do an investigation. So there’s no real protection because it’s a complaint-based system. If the workers go home then there’s no one to complain” said Velasco.

When asked by The Philippine Reporter if it will still be the policy to deport these people in situations when they do not have a valid employer, Minister of Citizenship, Immigration and Multiculturalism Jason Kenney stated, “I think that doesn’t happen very often… I did these consultations last year quite exhaustively on the LCP and I wasn’t aware of cases of deportation or removal.”

He continued, “If they come here on the caregiver program and never work as a caregiver and are here for an extended period of time, then they could theoretically become out of status. I think the vast majority of caregivers respect the program and if they can’t work for one employer they will find another one.”

Kenney also said, “We have asked CBSA and the RCMP to do more to focus on these kinds of abusive practices. And we have also stopped the practice of recruitment agencies charging fees directly to the caregiver. It will be the families that will have the relationship with the recruitment agencies, which should reduce some of the instances we have heard of in the past.”

Velasco stated despite the new laws that say employers will have to pay for expenses like transportation “caregivers are still paying for recruitment fees and related fees to recruiters because employers don’t want to pay.”

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