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Audrey Macklin: And just like that, you’re an illegal immigrant




Audrey Macklin

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National Post

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On April 1, 2015, the Canadian government will launch a new industry. Citizenship and Immigration Canada will begin manufacturing “illegal immigrants.”

Four years ago, on April 1, 2011, the Conservative cabinet passed a regulation known as the “4-in, 4-out” rule, requiring all temporary foreign workers who have been in the country for four years or longer to leave, and remain outside Canada for at least four years. As of April 1, then, those still here will be deemed illegal.

In theory, a temporary foreign worker can apply to transition to permanent resident status within those four years in Canada, but in practice, those designated as “low wage” will generally not qualify for this. A couple of provinces (mainly Manitoba and Alberta) have used their limited scope of authority to nominate “low-wage” workers for permanent resident status, but the number of cases in which this has occurred are small.

So by April 1, 2015, all temporary foreign workers who arrived on or before April 1, 2011 (no one knows the exact number) are expected to pack up and go home. But some will not go back. They will remain living and working in Canada without legal status. How can we know this for sure? Because that is what has happened, from the mid-1940s to the present, in every country in the world that has run a mass guest-worker regime.

This is what any competent Citizenship and Immigration bureaucrat knew and probably told the Minister of Citizenship and Immigration in 2006, when the government decided to dramatically expand and under-regulate the temporary foreign worker program, and again in 2011 when the government instituted the “4-in, 4-out” rule.

Temporary foreign workers overstay their visas and go underground for various reasons. Their families abroad may depend on their remittances to subsist. They may have been exploited by rapacious “recruiters” and/or unscrupulous employers. Returning home empty-handed and possibly indebted is not only stigmatizing, it can be dangerous.

Some workers may even have dared to feel at home in Canada — to imagine themselves as potential members of the society where they live, work, pay taxes, form bonds and contribute. This last possibility is, of course, inimical to the very purpose of the 4-in, 4-out rule, which is to enforce the message that temporary foreign workers are good enough to work but not good enough to stay. After all, the rule doesn’t prevent employers from replacing temporary workers with other temporary workers in perpetuity. The work need not be temporary, only the people who do it.

Some Canadians may consider the government’s guest-worker regime to be misguided and believe it should not continue. But terminating it will not resolve the dilemma of those temporary foreign workers who are already here and who are the targets of the “4-in, 4-out” rule. Some Canadians may equally have little sympathy for temporary foreign workers who overstay their visas, no matter what their motives. Some may not care that non-status workers are even more precarious and exploitable than temporary foreign workers — after all, they are not supposed to be here, anyway.

But the point is that it is absolutely inevitable and predictable that they will be here. Governments, like people, might be assumed to intend the natural consequences of their actions. So why would the government devise a rule that is guaranteed to produce just-out-of-time illegality?

It is common knowledge that some sectors of the U.S. economy have become dependent on undocumented workers, of which there are an estimated 11 million. Some employers find them a desirable work force precisely because their deportability ensures that they will “work hard and work scared.” These employers are also known to wield their political influence accordingly. To my knowledge, there is no comparable market for non-status workers in Canada, at least not yet.

Migrants without legal status are also easy targets for vilification. The slide from “illegal immigrant” to “criminal” in popular discourse is politically cheap and easy. A government that is looking to supplement the bogus refugee, the marriage fraudster and the foreign terrorist with a new category of bad immigrant and a new excuse to get tough on non-citizens might find it convenient to add “illegal immigrants” to the roster. The government’s role in illegalizing these migrants may escape notice.

Thanks in part to Canada’s historic commitment to permanent immigration, this country has not had a significant population of irregular immigrants, until now. Thanks to the “4-in, 4-out” rule, Canada’s population of “illegal immigrants” is about to increase, and not because hordes of foreign nationals have suddenly surged across the border clandestinely.

On March 31, temporary foreign workers will go to bed as lawfully employed, hard-working, tax-paying residents of Canada, and wake up the next day as illegal immigrants. A bad law will have made them illegal. A good law would put them on the path to permanent residence.

National Post

Audrey Macklin is Professor of Law and Chair in Human Rights at the University of Toronto.



migrant workers, Permanent Residence, work visas, 4-in, 4-out

Economic sectors

General relevance - all sectors

Content types

Current Policy

Target groups

Public awareness, Researchers, and NGOs/community groups/solidarity networks

Geographical focuses

Canada, Ontario, Alberta, Manitoba, Quebec, British Columbia, Other provinces, Federal, Nova Scotia, and National relevance