Opportunities abound for foreign entrepreneurs in Canada, but getting yourself here can be a challenge.
Navigating the labyrinthine bureaucracy of Immigration, Refugees and Citizenship Canada’s (IRCC) system while meeting the technical requirements of its many programs can seem like a daunting prospect, even for the most successful and resilient of business owners.
However, with the appropriate legal advice from a lawyer immersed in Canadian immigration issues, it is possible to design a path that matches your unique needs, without overwhelming your business focus.
Recently, our firm represented a construction company owner from Nigeria who wanted to come to Canada to expand his business, along with his wife and three young sons. While every case has its own unique challenges, this was one of those few matters that gave us a chance to showcase the full range of our legal, strategic and advocacy skills.
Read on to find out how we helped him achieve his goals, overcoming the COVID pandemic, IRCC delays and administrative failings along the way.
Selecting the right program
When our client approached the firm in 2020, following a referral from a friend, he was surprised — as many owner-operators are — by the sheer number of options he had at his disposal for immigration to Canada.
For example, several provinces — notably Ontario and B.C. — operate entrepreneurial streams as part of their provincial nominee programs for applicants who can meet certain net-worth and monetary investment requirements.
Meanwhile, a C11 work permit offers entrepreneurs a chance to operate their own business in Canada on a temporary, as long as they can demonstrate “significant economic, social or cultural benefits” to Canadians as a result of their admission.
However, in this case, we decided that the Intra-Company Transfer (ICT) pathway made most sense for his situation, because it would allow him to acquire a work permit in Canada without going through the long and expensive process of obtaining a positive Labour Market Impact Assessment.
Many people wrongly assume that the ICT — part of the IRCC’s International Mobility Program – is only available to employees of large multi-nationals moving between global offices. In fact, the pathway is also open to owner-operators who plan to continue operating an existing foreign business while expanding into Canada, effectively allowing our client to transfer himself to his firm’s new office here.
Processing delays and Mandamus applications
Nigerian applicants often face a challenging route to permanent residence in Canada, unfairly tarnished by the country’s reputation as a perceived hotbed for fraud.
Study and work permit applications routed through IRCC’s Accra and Lagos visa offices are subject to some of the highest refusal rates in several immigration programs, so immigration lawyers have to step up their game in order to meet the extreme levels of scrutiny coming from visa officers based in the region.
After our client opened his new office in southern Ontario, we submitted his ICT application in the summer of 2020, in the wake of the global lockdown spurred by the emergence of COVID-19.
We would normally have expected a response from IRCC within a few months, but the agency was hit hard by the pandemic. Indeed, it is still struggling to clear a huge processing backlog that has built up across virtually all of its programs.
This put our client in a very tricky position, as it was difficult for him to make long-term plans or commit to new construction projects without some certainty over where in the world he would be based for the foreseeable future.
In the summer of 2021, with our client’s waiting time tipping over the 12-month mark and little feedback forthcoming from IRCC, we decided to take matters into our own hands at the Federal Court of Canada, where we applied for a special type of judicial review known as a writ of mandamus.
When granted, the writ forces IRCC to direct its attention to a particular case and render a decision. Our firm has been a pioneer in the use of mandamus applications, and our Nigerian client’s was one of the first of around 300 cases we have filed over the past year, most of which were granted within 60 days of commencing court proceedings.
This type of application should be a last resort, but it is an increasingly attractive option for those facing unreasonable delays. And it is effective too, as our client found out in October 2021, when he received a positive decision letter from IRCC.
Entry into Canada
By late December 2021, our Nigerian client and his family had wrapped up their affairs at home and were finally ready to make their move, departing Nigeria for a connecting flight in Frankfurt that would bring them to Canada.
However, their sighs of relief (and mine) were premature, as I discovered the next morning, when I was informed in a panicked phone call that officials had stopped them boarding their flight at the German airport.
Leveraging all my contacts in the immigration law bar, I managed to identify an IRCC program manager to help, who was able to pinpoint the problem as an issue with the family’s medical clearances for entry to Canada.
Because of IRCC’s unreasonable processing delay, our client, his wife and his children were all forced to complete new medical assessments after their original one-year certificates expired. While the family had once again passed their medical examinations, , an administrative error resulted in the old, outdated certificates remaining on their IRCC files, automatically invalidating their visas.
Eventually, IRCC was able to correct the error and our client and his family was finally able to arrive to Canada and be granted their respective permits.
Our client now has his business up and running in Canada, and his children are settled in local schools. I’m proud to call them friends as well as clients, after sharing in their immigration adventure, and we are currently working on preparing him for his application for permanent residence.
If you are interested in bringing your own business to Canada, free to contact one of our lawyers to get more information.