By Sophia Rossi
Introduction
Amongst the many immigration programs you can apply to, the programs that do not require English skills are always ever popular with applicants. This include programs such as the OINP foreign worker program (permanent residence) and the LMIA owner/operator program (temporary residence).
Discretion of Immigration Officers: The Real Danger for Your Application
However, although those programs do not explicitly require English skills, immigration officers may exercise their discretion and require English testing results anyways.
Let’s illustrate this with an example. Sandra only speaks Cantonese and through OINP has found a position as a baker in Canada. She and her employer, the owner of the bakery, have already discussed the fact that she will not need to know any English to do her arranged job.
The employer has explicitly stated that all employees are also fluent in Cantonese, and she will not have to deal with any customers since it is not a customer service position. But her immigration officer declined her application anyways since he felt she would need English to fulfill the job.
Immigration officers are allowed to refuse an application because “there are reasonable grounds to believe the foreign national is unable to perform the work sought”, and they may consider English skills to be a required condition to perform the work even if English skills are not a listed
requirement in the program you are applying to.
The immigration officer can reject or accept an application regardless of whether the applicant has met all the listed requirements. So even though Sandra has been nominated by OINP which did not have English as a requirement to apply, she has still been rejected because of a lack of language skills.
So, what does Sandra do now?
Substituted Evaluation: When There is More to be Considered
Sandra’s employer can prove that she will be able to communicate with all her co-workers, read recipes, and understand instructions. They can explain how the language requirement is not applicable to this position.
Sandra will be able to perform her job, make a steady income, and become economically established if she is granted her work permit and permanent resident status.
While the officer denied her application because of a lack of English skills, Sandra can ask for a substituted evaluation.
Substituted evaluation considers all relevant details rather than just the basic assessment criteria. It is used when an officer determines that although by the original criteria an applicant is inadequate, the other relevant details greatly imply that the candidate would be able to successfully perform the work sought and establish themselves economically.
For example, Henry is from China and only speaks Mandarin. He applied through OINP but was denied because he has no English skills.
But the officer didn’t consider all the related factors. Henry has lots of experience living in Canada. He has spent a total of 12 months living with his extended family over the years during the summer, and during that time also became very involved with the local church. Through this he acquired a strong understanding of Canadian culture and customs.
His extended family has also pledged support as his sponsors to help him if he is granted permanent residency, and his arranged employment specified that he doesn’t need to know any English to fulfill the position.
Once he is assessed with a substituted evaluation, Henry’s application is accepted.
Conclusion
English proficiency is often considered essential to an officer who is determining whether you will be able to fulfill your job requirements.
It is important to be able to prove that you will be able to perform your job despite language barriers by either: having the employer sponsoring you explain the requirements of your promised position; proving to the immigration officer via interview that you have enough mastery of the language to complete the job effectively; or improving your language skills (this does not mean you need to prove your language tests through taking designated tests – as English is not a requirement, you can prove by other means such as proof that you scored high on other, easier types of English tests).
This article is only meant to give general legal information. For legal advice on your specific mortgage situation, please consult a legal professional.
Sophia Rossi is the co-op student at Varity Law Professional Corporation. Varity Law is a one-stop-shop law firm offering immigration law, business law, real estate law, and wills & estates law services.
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