SOCI – Conditions and Vulnerabilities Faced by Temporary and Migrant Workers – September 28, 2023

Date: September 15, 2023

Classification:

Department: IRCC

Issue:

Open Work Permit and other measures for Vulnerable Workers

Proposed Response:

• Foreign workers have the same rights to workplace protections under federal, provincial and territorial employment standards and collective agreements as Canadians and permanent residents.
• Employers that hire temporary foreign workers are also subject to regulatory conditions set out to protect foreign workers.
• Employers found during an inspection to have broken regulatory conditions may be subject to consequences such as monetary penalties or being banned from employing foreign workers.
• In June 2019, Immigration, Refugees and Citizenship Canada (IRCC) introduced a measure to provide any foreign worker with a valid employer-specific work permit to access an open work permit if they are experiencing, or are at risk of experiencing, abuse in their job. This allows foreign workers to quickly leave the abusive situation and start working for a different employer.

Contact:
Korey McKinnon A/Director General, Social and Temporary Migration Branch
Tel. No.:

Approved by:
Louise Baird
Senior Assistant Deputy Minister, SPP
Tel. No.:

Background:

Low Skilled and Low Wage Workers

• Low skilled and low wage workers tend to have lower levels of literacy and language proficiency; factors that can create barriers for Temporary Foreign Workers (TFWs) to understand their rights and to access community support and resources.
• Nonetheless, all workers in Canada deserve safe, healthy and dignified working conditions. Mistreatment or abuse of low skill/low wage TFWs – or any worker – is always unacceptable and can never be tolerated.

Measures to Protect Temporary Foreign Workers

Employer Compliance Regime

• The Employer Compliance Regime seeks to ensure the protection of the rights of temporary foreign workers on employer specific work permits through a suite of conditions on employers identified in the Immigration and Refugee Protection Regulations. Conditions imposed on employers include making reasonable efforts to provide a workplace that is free of abuse.
• A confidential tip line and online reporting tool permits TFWs and other parties to anonymously report situations of potential wrongdoing. All allegations are reviewed, and appropriate action is taken. If criminal activity is suspected, the information is forwarded to law enforcement agencies such as the RCMP and CBSA.
• In September 2022, new regulations came into force to improve protections for TFWs and strengthen the Government’s ability to effectively conduct inspections. The changes expanded the definition of abuse to include reprisals should the worker report instances of an employer’s non-compliance with program conditions.

Open Work Permit for Vulnerable Workers

• The Open Work Permit for Vulnerable Workers (OWP-V) was launched in June 2019 and provides workers on valid employer-specific work permits experiencing, or at risk of experiencing, abuse in their job access to an open work permit.
• With an open work permit, workers are able to exit abusive situations quickly and work for almost any employer in Canada. This permit mitigates some of the barriers that migrant workers have previously faced in reporting abuse, such as loss of their work authorization, fear of deportation, and employer retribution.
• The OWP-V is temporary and generally non-renewable. It is typically issued for one year and is intended to give workers enough time to find a new job and apply for another work permit before the OWP-V expires.
• The program is facilitative and expedient. It has a lower burden of proof compared to most immigration programs, recognizing that abuse is often difficult to substantiate The permit is also available to family members of the foreign worker in Canada.
• This program is aligned with other worker protection tools that the federal government has in place. After a worker is approved for an open work permit for vulnerable workers, an inspection is typically conducted to verify the employer’s compliance with program conditions.
• In Budget 2021, the Government committed $6.3 M over three years, to support faster processing and improved service delivery of open work permits for vulnerable workers.

Metrics

• Volumes: In 2022, 1,075 Open Work Permits for Vulnerable Workers were issued. Additionally, from January to August 2023, 1,070 Open Work Permits for Vulnerable Workers were issued.
• Processing times: Processing times are gradually improving and are currently averaging 35 days (down from 40), due to the high volume of applications and the need for additional evidence and interviews in some cases. The Department is committed to supporting faster processing of these applications.

Responsive Lines/If Pressed:

• While the OWP-V is responding to an important gap and has generally been well received by stakeholders, early outcomes and feedback point to some areas for improvement, including processing times and consistency in decision-making.
• Departmental officials continue to engage processing officers regularly and refine guidance to ensure the program is applied consistently and fairly.

Recent Comments From UN Special Rapporteur

• The Department acknowledges the report from the UN Special Rapporteur. While we disagree with aspects of their report, in Canada we are always open to recommendations to better protect workers, including TFWs.
• Ensuring the health and safety of TFWs and that they are free from any form of abuse while in Canada is a key priority. The government has taken concrete actions to better support these workers and we will continue to take action.
• The Temporary Foreign Worker Program also strictly monitors employers’ adherence to program conditions through inspections which can be random. Inspections are often generated from a tip or complaint, which will initiate a visit from a compliance inspector.
• The Department continues to work closely with all partners, to ensure that continued improvement of the program to better support and protect temporary foreign workers.

Immigration Consulting Practices

• In order to decrease the vulnerability of workers, the Government has strengthened the regulation of immigration consultants with the establishment of the College of Immigration and Citizenship Consultants (College), which opened in November 2021. The College is an arm’s-length institution that protects both the public and consultants in good standing from those who take advantage of vulnerable people. It has new powers and strengthened tools to investigate professional misconduct and to discipline consultants who engage in exploitative activities.
• As part of the College’s new changes, the Government implemented a Code of Professional Conduct for consultants in 2022 via regulation. The Code establishes strong ethical and professional standards that all licensed consultants must abide by. In particular, the Code outlines obligations and conditions that licensed immigration consultants must follow if they are to also provide recruitment services. Examples include providing clear and transparent information about the employment contract to their client and not charging any recruitment fees to their client. This allows for improved oversight and regulation in this overlapping space with provinces and territories, who govern the regulation of labour recruitment.

Undocumented Workers and Scenario Through Which this Population Could be Regularized

• An undocumented migrant is an individual who has no authorization to reside and/or work in Canada. Undocumented work situations are known to present higher risks for employer abuse and exploitation due to informal work agreements that make accessing labor protections difficult. Undocumented workers are unlikely to report abuse to authorities for fear of deportation. Marginalization associated with a lack of status makes them vulnerable to exploitation.
• Existing permanent residence programs for the undocumented migrant population are limited in scope or are discretionary in nature.
  • Undocumented migrants (with some exceptions) may apply for Humanitarian and Compassionate (H&C) considerations, however H&C decision making is highly discretionary.
  • A public policy, first implemented in 2005, is in place to allow out-of-status individuals to be sponsored as a member of the family class if they are in a relationship with a Canadian permanent resident or citizen.
  • In recent years IRCC has also implemented targeted initiatives that provide an opportunity for a limited number of out-of-status individuals to obtain permanent residence.
  • One program is the Temporary Public Policy for Out-of-Status Construction Workers in the Greater Toronto Area, which recognizes the economic contributions of workers in the construction industry while addressing vulnerabilities associated with their lack of status. As of July 31, 2023, 992 applicants have been admitted (427 principal applicants and 565 dependents) through this public policy.
• IRCC continues to explore options to implement an initiative that will regularize those without immigration status who have been contributing to Canadian communities. IRCC is assessing outcomes of previous regularization programs, and maintaining ongoing dialogue with stakeholder organizations such as Canadian Council for Refugees and Migrant Rights Network as well as the academic community, to inform a future initiative.

Human Trafficking

• The National Strategy to Combat Human Trafficking 2019-2024 is a horizontal Government of Canada approach, led by Public Safety Canada, based on five pillars: empowerment, prevention, protection, prosecution and partnerships. IRCC’s work falls under the “protection” pillar, and is focused on the issuance of Temporary Resident Permits (TRPs) to victims of human trafficking and administrative immigration investigations.
• TRPs are issued to out-of-status foreign national victims of human trafficking and their dependants, to regularize their immigration status while in Canada. TRPs issued for six months or longer provide eligibility to apply for an open work permit and for coverage under the Interim Federal Health Program, which includes medical and psychological services, and prescription drug coverage.
• IRCC also conducts administrative investigations to identify human trafficking facilitators and victims and disrupt networks of facilitated human trafficking. The Department collaborates with enforcement partners to share information and provide assistance and with officers to prevent future cases of trafficking.