Language requirements for work permit applications

Credit to Author: Steven Meurrens| Date: Wed, 21 Jul 2021 23:27:00 +0000

Canadian immigration legislation provides that a visa officer shall not issue a work permit to a foreign national if there are reasonable grounds to believe that the foreign national is unable to perform the work sought.

There has recently been a notable increase in Federal Court of Canada judicial reviews of work permit applications that were refused because visa officers did not believe that applicants had the English or French language ability required to work in their occupation in Canada.  Usually only a small percent of refused applicants challenge their decisions, and an increase in court cases about a topic is often indicative of a larger trend.

A small but growing number of Canadian visa offices in their work permit application checklists have started requiring that applicants include copies of IELTS, CELPIP or TEF language test results in their applications.  This will likely further lead to an increase in the importance of applicants demonstrating that they have the English or French language ability to perform their job duties in Canada.

The IRCC guidelines

The Immigration, Refugees and Citizenship Canada  (IRCC) website provides that visa officers should base their assessment of language on (1) what is stated in the Labour Market Impact Assessment, if applicable, (2) the specific work conditions and arrangements that the employer has made or has undertaken to make to accommodate the applicant’s limited ability in English or French to address potential safety concerns, (3) the terms in the actual job offer and (4) the general requirements set out in Canada’s National Occupational Classification description for the occupation.

The IRCC website further states that officers should not consider perceived challenges that an applicant might face in interacting with the broader community, such as availing themselves of community services, if this is not relevant to their job performance.

Increasing language requirements

 While the IRCC website states that visa officers should apply a holistic assessment that considers a number of factors and sources of evidence of language ability when assessing whether someone has the language ability to work in an occupation, it seems visa officers are increasingly fixating solely on IELTS, CELPIP or TEF language test results.

Also, a review of the Federal Court of Canada decisions shows that visa officers are often imposing higher language requirements on work permit applicants than they are for people currently working in Canada who wish to apply for permanent residency.  For example, under both the Temporary Residency to Permanent Residency Pathway, as well as the British Columbia Provincial Nominee Program, truck drivers working in Canada, are required to score a language test of Canadian Language Benchmark 4 or higher. In several of the Federal Court cases, however, IRCC refused work permit applicants who had much higher scores.

The refusal reasons are often similar, and the following paragraph consisting of the refusal reasons from one decision represent a typical work permit refusal based on language concerns.

“I have concerns regarding the applicant’s English language skills which are also listed as a requirement for the position on the LMO [Labour Market Opinion]. While the applicant has an overall band score of 5.5. on the IELTS, I note that he only received a score of 4.5 in reading and a 5 in speaking. Although the LMIA does not explicitly state a minimum required IELTS score for this position, I note that the British Council classifies students at this band level as being a “Limited user [whose] basic competence is limited to familiar situations. [They] frequently show problems in understanding and expression. [They] are not able to use complex language”.”

For the most part, the Federal Court of Canada has shown significant deference to IRCC, and upheld most of the refusals.

In June 2021, however, Justice Bell declared that a visa officer’s refusal of a prospective truck driver’s work permit application was unreasonable. Justice Bell wrote that the IRCC officer appeared fixated on the IELTS test results and the British Council’s descriptions, and that the visa officer ignored other evidence, including the employer’s language requirements, the employer’s assessment of the applicant’s language ability and other information from the Canadian Language Benchmarks website that the applicant presented which suggested that his IELTS test scores were in fact high enough to perform the work.

Justice Bell’s decision is hopefully the first of many in which judges apply greater scrutiny to overly simplistic assessments of whether work permit applicants can perform their prospective jobs in Canada.

It is also a message to applicants whose IELTS or CELPIP test scores do not show that they are fluent in English to, in their work permit applications, include evidence that they have sufficient language abilities to work in their occupation in Canada. This evidence can include explanations to visa officers of how to interpret the test results, previous education in English, past employer reference letters and letters from their prospective Canadian employers affirming that their language abilities are suitable for their position.

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