Immigration law needs overhaul to deal with minor violations: R. Reis Pagtakhan

Last week, Citizenship and Immigration Minister Chris Alexander issued a statement setting out the federal government's opposition to Canadian municipalities becoming "sanctuary cities" for illegal immigrants.

The sanctuary city concept is one in which a city agrees not to take action against illegal immigrants. In Canada, at least two cities – Toronto and Hamilton, Ont. – have declared themselves to be sanctuary cities.

While some immigration enforcement laws are harsh and disproportionate, the fact of the matter is immigration laws, like any law, must be followed.

The Canadian government rightly points out that it is important for Canadians to have faith and integrity in our immigration system. Canadian cities have an obligation to respect Canadian laws, as well as enforce and uphold these laws when required.

What communities should do if they have concerns about the way illegal immigrants are treated is to convince the federal government to change their laws so any punishment is more in line with the actual immigration violation that has been committed.

One penalty - deportation

When non-Canadians violate immigration laws, they are usually faced with one penalty – deportation. While this penalty may be appropriate for long-term repeat offenders, it is not appropriate for first-time offenders with minor violations.

In 2013, two students from Nigeria, Victoria Ordu and Favour Amandi, were deported from Canada for allegedly working illegally in Canada. Ordu and Amandi claimed they did not know they were working illegally and when they found out, at least one of them stopped working.

While the government found that these students broke the law, the problem that arose was what to do with them.

In these situations, immigration enforcement officers are really only given two options: either turn a blind eye or unveil the nuclear option of removing that person from Canada.

While both Ordu and Amadi were removed from Canada, they were recently allowed back into Canada to finish their studies. The end result was the two students lost multiple school years and Canada let them back in anyway.

Since Ordu and Amadi were allowed to return to Canada, what was the point of sending them home in the first place? Is immigration purgatory really an appropriate penalty?

Graduated penalties needed

The problem with Canadian immigration enforcement is there is typically no middle ground of penalties. While Canadian immigration law allows for the issuance of fines for immigration violations, this provision of the law has never been put to use.

What the federal government should do is introduce graduated penalties that can be assessed on non-Canadians for violation of immigration laws.

For minor violations, a fine or an official warning may be more appropriate. These types of penalties could be recorded on the non-Canadian’s immigration file and, should they violate immigration laws a second time, harsher penalties could be given out.

The introduction of graduated penalties does not mean that ordering deportation should always be used as a last resort.

Clearly, there are cases where deportation will be the appropriate penalty, even for a first offence.

For instance, where an individual commits a criminal offence, used fraudulent means to enter Canada or has been found to have been illegally in Canada for months or years, deportation may be the appropriate penalty.

What is important is that immigration officers be given the ability to exercise their discretion to assess what is an appropriate penalty under the circumstances. Leaving immigration officers with the choice to do nothing or to break out the nuclear option does not serve anyone well.

Cities, first and foremost, have an obligation to their residents.

While it would be insane to require cities to check an individual's immigration status when they want to register for swimming lessons, if the situation calls for a city to enforce or assist in the enforcement of immigration laws, cities should provide their co-operation to the federal government.

R. Reis Pagtakhan is an immigration lawyer with Aikins Law in Winnipeg