The evolution of Canada’s caregiver program

Some of the earliest immigrants to Canada from the Philippines were nurses. However, in more recent decades, a popular route to immigrate to Canada from the Philippines was through the caregiver route. Canada’s caregiver program existed as far back as the early 1900s.

In 2019, the latest caregiver programs in Canada were given a new lease on life. Over time, the program has evolved and has become more selective when it came to candidates.

History

Over a hundred years ago, caregivers then were mostly sourced from England as nannies or governesses. These caregivers were provided permanent residence (PR) in Canada automatically. This migration flow shifted from Europe to the Caribbean when those caregivers were allowed to come in after the Second World War. After one year of working as a caregiver, they were allowed to apply for PR.

Most of the post-war candidates came from Barbados and Jamaica. Systemic racism plagued the program; compared to their European counterparts in the past, they were not provided automatic PR.

In 1966, Canada introduced its points-based immigration system. It classified work into different categories. Caregiving was treated as a low-skilled occupation and the government made it harder to gain a solid footing in Canada as PRs.

The ’70s and ’80s saw discontent among caregivers: protests and activism shed light into exclusionary policies, as well as domestic abuse at the workplace. In 1981, the Foreign Domestics Program was established that set new rules; after working as a caregiver for two years, a caregiver may apply for permanent residence. 

Discontent continued due to abuses. In 1992, the Live-in Caregiver Program (LCP) was introduced. Its introduction finally recognized caregiver work, and this program permanently set a 24-month wait period for a caregiver to be able to apply for PR.

Live-in caregiver program

The LCP allowed Canadian families to hire foreign nationals as caregivers. They were required to “live-in” with their employers. Due to reported abuses, the Harper government removed the live-in requirement in 2014. 

Among other things, this arrangement was deemed to be a source of abuse, with boundaries of work and home being blurred for a caregiver. Later on, the LCP was retired and two pilot programs were introduced to replace it: Caring for Children and People and Caring for People with High Medical Needs.

The objective was to further combat the abuses reported in the LCP, and it started with two streams as a five-year pilot, starting November 2014. Before expiration, government would then decide whether to continue the pilot as a permanent program, or to create a new program altogether. 

In the end, the government opted to end the pilots and create a newer and more pragmatic approach to the caregiver program.

Employer abuse

Before diving into the current program, it is useful to understand the problems that plagued its previous versions. Changes to the programs in the last few decades were precipitated by abuses that caregivers endured. These include the following: 

Labor market impact assessments

Employers of caregivers were required to secure an LMIA before a caregiver can start a work permit application. The government also required that the costs associated with LMIAs be borne by employers.

It was normal to encounter caregivers who convinced their potential employers to hire them by paying for the LMIA themselves. This was not allowed under the caregiver program, and in most Canadian provinces, this was an illegal practice punishable under the law.

Wage theft

In my practice, I have seen many situations where working hours were underreported. The reasons vary, but the most common issue encountered was when caregivers had a backroom agreement prior to the start of employment that reduced their reported hours to induce an employment offer, sweeping it under the rug in the hopes of securing PR one day and being reunified with their family.

Physical and mental/emotional abuses

While extreme, these cases were not at all surprising in a live-in situation. Abuses were rampant, whether they be physical or mental/emotional. Over the past few decades, these abuses were documented but likely underreported. The biggest hurdle to reporting unfortunately was because of the lure of permanent residence. A lot of caregivers would try to stomach these abuses, thinking that reporting their abusive workplace would only endanger their chances to gain PR.

Open work permits for vulnerable workers

The good news is that caregivers who find themselves in abusive workplaces can now apply for an open work permit for vulnerable workers. This type of work permit is open to all temporary foreign workers in Canada who have employer-specific, LMIA-backed work permits who are suffering abuse.

As such, caregivers who entered Canada on a work permit supported by a labor market impact assessment, and is specific to an employer, may be eligible to apply for this permit in order to break free from an abusive employer.

Immigration, Refugees and Citizenship Canada (IRCC) takes these applications very seriously and triggers an inquiry into the employer’s practices, which may lead to possible legal consequences for them.

On the other hand, depending on the situation, a caregiver may be able to apply for permanent residence should the requirements be met, or switch to another employer to complete the requirements for an application for PR. 

Crushed permanent resident dreams

Caregivers need two years of experience in Canada before they may apply for PR. They need to secure a work permit before coming to Canada. Once the two years are complete , they may apply for PR.

The screening process for a work permit is narrower than the screening process for PR. Even if a caregiver has worked and poured all their heart and mind into the caregiver program, there is still a chance that they could be refused PR because of underlying inadmissibility factors, such as medical or criminality issues.

Impact of recent changes

So what is the current caregiver program? As mentioned above, the five-year pilot programs for Caring for Children and Caring for People with High Medical Needs expired in 2019. Before expiry, Canada implemented an Interim Pathway for Caregivers. The program allowed caregivers to apply for PR if they had completed at least 12 months of caregiver work under the two expiring pilot programs. This pathway opened twice in 2019, and is now closed.

Today, caregivers are run through the Home Child Care Provider Pilot and Home Support Worker Pilot programs. These programs opened in 2019 and front-loads all the PR screening steps. In other words, before a caregiver is issued a work permit, they are prescreened for PR along with their family. 

The objective was to lessen heartaches of a broken promise of PR as the work permit will likely not be granted should the applicant or his/her family be found inadmissible to Canada for PR purposes.

Today’s two caregiver pilots allow them to bring their family to Canada immediately. This minimizes family separation and facilitates integration into Canada. Spouses or common-law partners of caregivers may apply for an open work permit, while their underage dependents may accompany them and are issued study permits to continue their education in Canada.

Another important change is that a labor market impact assessment is no longer required. A genuine job offer remains a prerequisite, and the employer must still meet the requirements in hiring a foreign national that are specific to caregivers. 

Furthermore, work permits that are issued to caregivers under the new pilots are no longer employer-specific. They are now occupation-specific. This means that, unlike before, caregivers have the flexibility to move from one employer to another as long as they stick to the same kind of occupation under the same work permit. In theory, this minimizes a caregiver’s exposure to abusive workplace situations and empowers them to speak up without fear of losing their status or ability to work in Canada.

The downside is that processing new caregiver applications have a longer processing time since the PR background checks are conducted at the beginning, even before a work permit is issued.

The new pilot programs are not a return to automatic PR for caregivers upon arriving in Canada, but inches closer to it. This is largely thanks to the hard work of advocates who have shed light into the abuses and systemic racism that plagues the program.

For now, the caregiver program lives, though after the pilot program expires we do not know whether they will make it permanent. – Rappler.com

Lou Janssen Dangzalan is a Filipino-Canadian lawyer practicing immigration law in Toronto, Canada. You can follow him on Twitter @ljansdan or reach him through his firm’s website: www.ljd-law.ca