By Maria Deanna Santos, PhD
Barrister, Solicitor & Notary Public
Member, Law Society of Upper Canada & Integrated Bar of the Philippines

I. Brief Summary of the LCP

As many of you will likely be aware, the Live-in Caregiver Program (LCP) is a special program within Canada’s Immigration and Refugee Protection Act whereby temporary work permits are initially issued to live-in caregivers who must satisfy certain conditions before they can qualify for permanent residence in Canada.

After the LCP work permit is issued, the caregiver is required to work in a Canadian household as a fulltime live-in caregiver for 2 years within 3 years of arrival in Canada to qualify for permanent residence under the Live-in Caregiver class (R113). Therefore, it may seem that the LCP requirement for permanent residency is pretty straightforward and even generous. However, there is so much more to this requirement than meets the eye.

First, a live-in caregiver is defined as someone who provides child care, senior home support care or care of a disabled person within a Canadian household.

To qualify for a live-in caregiver work permit, the applicant must satisfy the following requirements (R112):
- education (at least equivalent to a Canadian high school education),

- training or experience (six months of full time training in a classroom setting or at least one year of fulltime experience in a caregiving-related field within 3 years of the work permit application)

- language (enough English or French to be able to communicate effectively in an unsupervised setting) and

- an employment contract with a future employer in Canada (as confirmed by a positive labour market opinion obtained from Service Canada)

II. Profile of LCP participants and issues affecting their vulnerability

CIC data in 2006 showed that approximately 90% of the LCP participants are of Filipino origin, a great majority of whom are women. While there are also caregivers coming from other countries in the Caribbean, South America or Asia, it is quite clear that an overwhelming majority of these caregivers come from poor, developing countries. For those coming from the Philippines, many of the caregivers have college or university diplomas, including nurses, teachers, accountants, secretaries and others.

On a general level, this profile of LCP participants inevitably leads to at least three significant issues:

First is the problem of prolonged family separation. Many of these women also have families in their home countries whom they are forced to leave behind to take care of other people’s families. Various studies have illustrated the detrimental effects of prolonged family separation especially for growing children, in these situations.

Second is the issue of de-skilling. These mostly educated women are unable to practice their professions and/or tend to lose their skills as they are forced to continue working as domestics or caregivers even after having obtained permanent resident status in Canada. The long working hours and minimal pay prevent them from taking upgrading courses or other avenues to return to their professions or pursue better-paying jobs.

Third, the issue of racialization also arises in that the caregivers are mostly people of color and serving mostly white, elite families. In this regard, it is worth noting that prior to the 1940s when British white domestics predominated the foreign domestic worker entrants, they enjoyed citizenship and mobility rights upon entry to Canada. It was only when the Foreign Domestic Movement Program and later, the LCP, whose participants were mostly from developing or third world countries, did the government start imposing certain conditions before the workers can fully enjoy permanent resident status in Canada.

Moreover, the consequent failure of the international human rights regime to adequately address the multiple disadvantage of caregivers may partly be attributed to the diametrically opposed interests of states of origin and states of employment. These interests tend to conspire to produce an inherently exploitative situation where employers who are citizens of rich countries are meeting their needs at the expense of caregivers and their families from poor countries

III. Major Problematic Features of the LCP

A. Precarious immigration status arising from the hybrid nature of the program

As stated, the LCP is a two-tiered program whereby caregivers are granted work permits upon arrival to Canada and are only allowed to apply for permanent resident status after working as fulltime live-in caregivers for 2 years within 3 years of their arrival. However, only the work that they do within Canada is counted in this 2-year requirement. So if the caregiver happens to travel with the employers, those times spent outside of the country even while continuing to work for the employer, are not credited under the LCP.

Since the caregivers would have to make a second immigration application after satisfying the LCP requirements, their work history, immigration records and related documentation are again placed under scrutiny. The caregivers are also made to undergo another immigration medical examination and police checks, and are held accountable if they failed to disclose certain material facts such as the existence of family members, in their work permit applications. In fact, a significant number of caregivers have been charged with misrepresentation which have led not only to their inability to bring family members here but even to losing their own immigration status in Canada. While this may sometimes be overcome by a request for humanitarian and compassionate consideration depending on the circumstances behind the misrepresentation, not all caregivers are aware of this nor can many of them afford to seek legal advice when this happens. As a result, many of these caregivers’ applications get refused on mere technical grounds even if there is clearly no bad faith behind the omission or alleged misrepresentation.

B. The Mandatory Live-in Requirement and Employer-Specific Work Permits

These two features are major sources of abuse and exploitation in the LCP. Since the caregiver is required to both live and work in the employer’s home, it becomes very difficult to delineate the caregiver’s working hours from their personal time. On the other hand, it becomes too easy for the employer to exploit the caregiver’s proximity and availability by making them work extra hours and without providing full and proper compensation. The power imbalance arising from the fact that the employer is also the caregiver’s landlord is just too great to overcome in the context of the LCP. Therefore, it has not only become very common for caregivers to be required to perform numerous other household tasks on top of their caregiving duties, but also that the incidence of emotional, physical and even sexual abuse is very high among LCP participants.

Unfortunately, the live-in caregivers usually decide not to pursue legal remedies for all these abuses, mainly because they do not want to jeopardize their chances of obtaining permanent resident status for themselves and their families. They are afraid that if they disobey or antagonize their employers, it would not be easy to find a new employer and even if they do, they will be subject to processing delays that could leave them unable to meet the 3-year deadline to complete the 2-year fulltime live-in caregiving work required.

IV. Recent Trends

A. Deportation of Caregivers Upon Arrival in Canada

Recently, there have been numerous cases of caregivers arriving at the airport without “genuine” employers (commonly known in caregiver circles as being “released upon arrival.”) CBSA officers at the airport have been undertaking greater scrutiny of the caregivers’ employers before issuing their work permits. They do this despite the fact that the Canadian visa offices abroad have already examined the caregivers’ applications and approved the employers’ qualifications based on the labour market opinions issued by Service Canada.

If the CBSA officer deems that there is no genuine employer or that the employer is not qualified to hire the caregiver (i.e. not enough income, no extra bedroom for the caregiver, children too old or the elderly person has died, etc.), the caregiver is not issued the work permit and is removed from Canada at the earliest opportunity and for many, even before they could seek proper legal advice. For those who are able to seek legal advice, in many situations, their only option is either to apply for a temporary resident permit (which are granted only for exceptional and compelling reasons) or to seek an application for leave and judicial review of the unjust removal order with the Federal Court. For lack of financial resources or access to legal aid in these situations, the caregivers are left with not much choice but to comply with the removal order thereby leaving these unjust removal orders unchallenged.

Another issue that contributes to the problem is the prolonged processing times of work permit applications in high volume visa offices. In Manila, it could take anywhere between one to two years before LCP temporary work visas are granted. In the interim, the employer may have decided to hire another caregiver, or the caregiver’s services are not anymore needed.

The unscrupulous recruiters on the other hand, take advantage of this situation by “hiring” ghost employers for the caregivers seeking to come to Canada via the LCP. If the caregivers are lucky enough to be issued work permits, these “released-upon-arrival” caregivers are made part of a pool of caregivers who are ready to be assigned to prospective employers in a moment’s notice. The caregivers are then made to work “under the table” while their new LMOs and work permits are in process. This arrangement is mainly for the benefit of the recruiters in that they receive fees from both the caregivers and the employers without any risk or liability in case the caregivers are caught working illegally. Any liability often devolves solely on the powerless caregivers.

B. Medical Inadmissibility Cases

Due to the two-step application process in the LCP, the caregivers are required to undergo a second immigration medical examination when they are applying for permanent resident status. This second medical examination requirement has led to the refusal of applications where the caregiver is found to have developed an illness that would likely cause an excessive demand on the Canadian system. This is most unfair as the caregivers have already passed the first immigration medical examination when they applied for their LCP work permit. Arguably, these caregivers could have developed their illnesses while working under stressful conditions in a foreign country and after being separated for long periods of time from their families.

Lately, there have been a number of cases of Filipina caregivers stricken with cancer but who were granted an exemption from the medical admissibility requirement on humanitarian and compassionate grounds under Section 25 of IRPA. However, since an H&C decision is very discretionary, there is no guarantee that the next officer will decide in a similar manner as one person’s level of humanity and compassion is not necessarily the same as the next person’s.

In this regard, there have been proposals made to eliminate the second medical examination requirement and/or to include caregivers in those categories that are exempt from medical inadmissibility arising from reasonably causing an excessive demand on the health and social system (Sec. 38(2) of IRPA). Advocates have called this proposal the Juana Tejada law, named after a cancer-stricken caregiver who recently passed away.

C. R117(9)(d) cases

Since this topic has been discussed by Avvy, I would just like to point out that an increasing number of caregivers, after having obtained permanent resident status, are surprised to learn that they are ineligible to sponsor family members because they are not considered members of the family class under R117(9)d. This happens either because they were ill-advised not to include family members in their LCP work permit applications, or because they get married after obtaining work permits and before becoming permanent residents without notifying CIC of their change of status. While some cases have been overcome by H&C requests, many other such sponsorship applications are refused and as even led to the caregivers themselves being issued removal orders on charges of misrepresentation.

V. Some Updates and Proposals for Reform

If I were giving this presentation say, a year ago, I would have sounded a lot more pessimistic about the prospect of seeing reforms with respect to the LCP since almost the same proposals have been made for years, even decades, by caregiver advocates but with very little results.

The recent series of investigative articles in the Toronto Star on the unscrupulous practices of recruitment agencies seemed to have awakened the government into realizing that it is about time to seriously consider measures that will not only prevent further abuse and exploitation but also protect the basic rights and dignity of the caregivers, as well as acknowledge their significant contribution to the well-being of countless Canadian families. Although there is a lot more to the LCP than the exploitative schemes of recruitment agencies, the media exposure at least highlighted the vulnerability of LCP participants in general and somehow raised public awareness on the matter.

To date, both the federal and provincial governments have taken initial steps to curb if not eradicate the abuse and exploitation of live-in caregivers. CIC Minister Jason Kenney has taken a keen interest on initiating reforms to the LCP and has been conducting consultations with various groups to solicit concrete proposals. Aside from listening to these proposals, Minister Kenney assured that he is closely coordinating with all relevant government agencies (at both the federal and provincial levels) in ensuring an effective and multi-pronged approach to solving the many problems relating to the LCP.

At the provincial level – MPP Mike Colle not only undertakes similar consultations, but has initiated a private member’s bill seeking to protect caregivers from the exploitative practices of recruiters and employers that was patterned after a similar Manitoba legislation. This has since been endorsed by the provincial government through Labour Minister Peter Fonseca and is currently undergoing further review. The provincial government promises to implement significant changes before the end of this year, including the regulation of recruitment agencies, and the banning of placement fees charged to caregivers.

Just last week, or on April 27th, the provincial government also launched a toll-free number dedicated to assisting caregivers in clarifying their employment rights, filing claims and linking them up with specially trained investigative officers.

There have been a long list of proposals that have come out of these consultations. Of these, I personally believe that the following basic reforms will most effectively address many of the issues surrounding the LCP:

1. the granting of permanent resident status to the caregivers upon arrival in Canada

2. removal of the mandatory live-in requirement

3. recognition of the true value of caregiving to Canadian families

4. strict monitoring and enforcement of the caregiver’s employment and human rights

5. the provision of full healthcare and legal aid benefits to all caregivers and

6. better coordination and awareness among relevant government agencies to ensure a comprehensive understanding of, and effective response to the various issues arising from the LCP.

So far, recent developments provide enough reason to be hopeful that meaningful reforms to the LCP will be forthcoming. However, it is important to remember that the issues surrounding the LCP are systemic and complex, as well as part of broader social and economic concerns. Hence the need for continuing vigilant advocacy and coordinated efforts with all stakeholders to ensure a truly effective and comprehensive response to the problems faced not only by caregivers, but also by other long disadvantaged sectors of society.

In closing, I would like to leave you with a quote from the Federal Court case of Turingan v. Canada which I have always found useful to invoke in support of H&C requests and which serves as a useful guide for immigration officers when processing LCP applications: In this case, the late J. Jerome held:
“…the purpose of the Program is to facilitate the attainment of permanent residence status. It is therefore incumbent on the Department to adopt a flexible and constructive approach in its dealings with the Program’s participants. The Department’s role is not to deny permanent residence status on merely technical grounds, but rather to work with, and assist the participants in reaching their goal of permanent residence status.”

Pastor Alex Pacis at community meeting at FCT.

Maria Guiao at community meeting at FCT.