Federal Court urges Ottawa to consider 'moral debt' owed to pandemic workers for immigration status

The National Post

Adrian Humphreys The National Post Published Jan 09, 2023  

“The moral debt owed to immigrants who worked on the frontlines to help protect vulnerable people in Canada during the first waves of the COVID-19 pandemic cannot be understated,” a judge said last year in a ruling for Bhaona Mohammed, a woman from Fiji working as a health-care aide at a long-term care home in Alberta.

Another judge applauded a man from Nigeria who worked both as a security guard and an Uber driver in Ontario through COVID-19 peaks.

“Among his riders were health-care workers, grocery shop workers and many other essential workers. He delivered food to people who might have tested positive for COVID-19 and did not have anyone to bring them food,” the decision said.

A third decision was released last month for a woman from Nigeria who worked as an intern at a care home in Quebec but was denied access to a special immigration program for health-care workers. A judge said immigration staff too narrowly judged eligibility.

All three were originally denied status to remain in Canada by immigration officials but had their case sent back by the court for another review in 2022.

The urging of judges, however, does not dictate outcomes of new hearings.

In the case of the Alberta health-care worker, the Immigration and Refugee Board reassessing Mohammed’s case remained unmoved by Justice Shirzad Ahmed’s declaration of a “moral debt.”

“I do not fully agree that this moral debt, and the insinuation that certain work deserves more consideration in the context of a residency obligation appeal, is an appropriate consideration,” an IRB hearings officer ruled in the reconsideration of her case.

“Many, if not most, Canadians work hard to contribute to the betterment of society. Through their hard work and efforts, we enjoy a high standard of living and a degree of freedom and security that is the envy of many throughout the world. It is only through all these individual contributions that we are able to achieve this.”

That second loss shocked her lawyer, Raj Sharma, and her case is back at the Federal Court, he said.

IRB spokeswoman Anna Pape said the board “respects the court’s decisions and regularly brings them to the attention of its members, as was done in this case. Members are independent decision-makers and are expected to decide each file on a case-by-case basis.”

Barrister Festus Uwaifo and his wife, meanwhile, are failed refugee claimants from NigeriaUwaifo was a lawyer in his homeland and is trying to be a lawyer in Ontario. (Barrister really is his given name.)

During early waves of COVID-19, Uwaifo worked more than 3,000 hours as an essential worker, as a security guard and an Uber driver, despite stress about passing the virus to his young family. Among his passengers were health care and other essential workers, and he delivered food to people in quarantine, court heard.

He said it “gives him happiness” knowing he is helping the community, but he also was devastated to learn his work did not qualify for a special pandemic pathway to permanent residency for essential workers.

He and his family applied for residency on humanitarian and compassionate grounds but were denied by an immigration officer. Uwaifo appealed to the Federal Court.

Justice Avvy Yao-Yao Go found it “disconcerting” the government’s decision ignored Uwaifo’s pandemic contributions.

“It is unclear why, in this exceptional time of ours, when the Government of Canada has seen fit to create a program to provide a pathway for permanent resident status to certain essential workers in recognition of their significant contribution to Canada, that an Officer would not even consider the Applicants’ similarly significant contributions before dismissing their establishment as not ‘exceptional,’” Go wrote.

Uwaifo’s case was sent back for another assessment. He is waiting for a decision, said Linda Lewis, his lawyer.

“It would not be possible for society to live the way we lived if it wasn’t for the work that refugee claimants and failed refugee claimants have done throughout the pandemic,” Lewis said. “Are we just going to forget their contributions?”

The issue is not straightforward, even among migrant advocates.

When you start using the immigration system as a reward system, then what is the measurement?


Syed Hussan, executive director of Migrant Workers Alliance for Change, said such individual stories are good but immigration status should not be doled out in such a way.

“The idea of immigration being a gift is not helping,” he said.

“It is not so much that these people did a specific service during a difficult time, it is that they are always the people. There is a particular section of our economy with workers who were ‘essential’ in the pandemic, who were also essential pre-COVID, and will be essential in the next crisis.

“When you start using the immigration system as a reward system, then what is the measurement? How do you calculate whose service is worthy for universal human rights?”

He said agricultural workers in Ontario were more likely to get COVID than those in a health-care facility but their work was not considered suitable for special government immigration programs reserved for health-care workers.

“Growing the food that kept us alive — was that frontline work? The cook, the cleaner, the security guards in the health-care facilities are not considered health-care workers,” he said.

The debate among advocates and lawyers is reflected in the courts.

A judge in November ruled that a Nigerian family’s good work in a care home for seniors did not trump the father’s ineligibility to remain in Canada for criminality.

A woman from Jamaica complained to the court she could not prove she worked as a personal support worker after her employer refused to provide records because they hired her despite her not having a work permit. A judge said there was insufficient evidence to support her claim.

Julie Lafortune, a spokeswoman for Immigration, Refugees and Citizenship Canada (IRCC), claimed privacy laws prevent her from discussing specific cases but said the government “is committed to the fair and robust application of immigration procedures.

“IRCC will be informing our future policy decisions based on the lessons learned through recent innovative programs that have tested new approaches and successfully transitioned individuals in Canada on a temporary status or with no status to permanent residency,” Lafortune said.