On May 31st Immigration Minister Ahmed Hussen announced that migrant workers could apply for an open work permit if they suffer from violence, harassment, are in abusive situations or at risk of abuse. The proposal to change the Immigration and Refugee Protection Regulations that took effect on Tuesday June 4th is welcome news. This means that migrant workers in abusive situations or those who are at risk of abuse can obtain an open work permit so that they may leave the abusive situation and find another employer. This change is an effective extension of the worker protection model that started in British Columbia in 2015. It is now in effect in the rest of Canada.
The legislation in British Columbia had positive provisions such as: mandatory registration of agencies and employers who recruit and hire temporary foreign workers; establishing criteria for issuing, refusing, suspending or cancelling a licence or registration; imposing tougher penalties for recruiters and employers who violate the legislation; allowing the government to recover, and return to workers, any fees charged illegally by recruiters; creating registries for foreign worker recruiters and for employers, to hold both accountable for their actions and to improve government response.
When the immigration ministry explained the proposed changes, it said that “the power imbalance created by work permits tied to one employer favours the employer and can result in a migrant worker enduring situations of misconduct, abuse or other forms of employer retribution”. It also said that “this is compounded by other factors including language barriers and the costs involved in navigating the complex legal recourse mechanisms available to them”. This pronouncement finally aligned with the message of migrants and their advocates for a long time. It seemed that a new common understanding is emerging between the government, migrant workers and advocacy organizations about the way migrant worker vulnerability is seen and constructed. This is promising news and can be a basis for moving forward together.
On the other hand, the proposed change does not address the root causes of migrant worker vulnerabilities. The lack of mobility impedes the rights of migrants and the open work permits are required to truly allow labour mobility so that workers can leave situations of abuse. This measure will – as it has done in British Columbia – permit some workers to escape abusive situations, which is a step in the right direction. In particular, the measure may help migrant workers in situations of labour exploitation that do not meet the threshold of trafficking under Canada’s current legislation.
The current policy adjusted the holes of the BC pilot program. For example, in the BC worker protection model, it requires a migrant worker to have the support of a Settlement agency in order to apply for the open work permit, or to submit a complaint to an enforcement body or human rights commission in advance. The proposed Federal changes do not need these requirements. The absence of these requirements reduces barriers and thus makes the process more accessible to migrant workers. However, the open work permit for abused migrant workers must also be available to workers in all streams of the Temporary Foreign Worker Program. Workers in the Seasonal Agricultural Workers Program are excluded from this initiative. They are among the most vulnerable to exploitation and abuse.
There are many barriers that prevent migrants from being informed about their labour rights in Canada such as linguistic, technological and bureaucratic barriers. These migrants also face isolation and lack of access to funded support services. It would be important to have a proactive information dissemination effort to ensure that all migrant workers coming to Canada are aware of the open work permit program in case of abuse. These information sessions would ideally happen pre-arrival or upon arrival to Canada. It would also be ideal if it were supplemented by labour rights and access to services training. The federal government must take this on as part of its responsibility for managing the Program. However, there is little information about how “reasonable grounds to believe a migrant worker is experiencing, or is at risk of experiencing abuse” will be defined, and whether decision-making will be at the discretion of the officer.
With the Temporary Residence Permit for victims of human trafficking, it shows that the discretionary decision-making has led to significant regional variations and under use of this protection tool. Many advocates urged the federal government to address these gaps in order to ensure clear, transparent and consistent application of these rules. It is also important that IRCC work with legal and community organizations to develop effective strategies to guide and monitor decision-making by officers. One big gap is that the proposed regulations don’t specify the length of the open work permits that will be granted to migrant workers in situations of abuse. Canada Gazette published that the process of finding a new employer can be lengthy and costly, so an open permit with a short duration is unlikely to realize the objective of the policy changes. In addition, in many provinces, migrant workers are only eligible for provincial health coverage with a work permit of one year or more. IRCC should have a standard minimum length for work permits of at least one year.
The proposed regulatory changes are a positive measure that can help protect some migrant workers. The government’s immediate response to the problems with the TFWP is promising. This provides a basis for future collaboration of all stakeholders to make immigration in Canada more equitable and fair.
To learn more about this new policy, go to https://tinyurl.com/open-workpermit
