I. Introduction

Temporary foreign workers in Canada experience substandard employment relationships, are explicitly denied many formal rights and are practically excluded from most employment protections.[i] Existing labour and human rights standards, organized labour regimes, and constitutional rights and freedoms have all been ineffective safeguards for these individuals against exploitation and insecurity. Led by a growing emphasis on workers’ temporary status as a root cause of their employment-related vulnerabilities,[ii] some advocates, as well as elected officials, are now calling on governments to improve opportunities for workers to attain permanent residency in Canada, primarily for those in lower-skilled occupations.

Provincial immigrant nominee programs (PNPs) are increasingly prominent but largely unexamined options for these workers. In a recent report, the House of Commons Standing Committee on Citizenship and Immigration recommended that “the federal government initiate dialogue and facilitate cooperation with the provinces and territories, so that the temporary foreign worker and provincial nominee programs function together smoothly to provide a pathway to permanent residency.” [iii] Governed under bilateral immigration agreements between Ottawa and the provinces, these programs enable provincial governments, in close partnership with private employers and other non-governmental actors,[iv] to nominate economic immigrants and their dependents for permanent residency.[v] In fact, provincial immigration streams for lower-skilled foreign workers – in jurisdictions where these streams exist at all – are currently the only options for these individuals to acquire permanent status while they work in Canada as temporary residents.[vi]

The central aim of this paper is to evaluate whether nominee programs are likely to address the real insecurities faced by vulnerable lower-skilled temporary foreign workers. An overarching lesson is that decision makers should be cautious about characterizing these programs as suitable “responses” to the complex employment insecurities produced by rapidly expanding, employer-driven temporary foreign worker programs (TFWPs) in Canada.[vii] The simplified assumption underlying current trends appears to be that transitioning workers from temporary to permanent status – by whatever route – provides the necessary protection against risks that foreign workers will become, or continue to be, trapped in conditions of substandard work. But this view fails to account for the reality that the temporary status of these workers is only one aspect of their vulnerability to exploitation and insecurity within ongoing employment relationships characterized by significant imbalances in bargaining power. Provincial nominee programs do not contemplate the dimensions of this imbalance that extend beyond (but are still connected to) workers’ temporary status. As a result, the market-based, employer driven character of these pathways, coupled with specific design failures and the absence of public regulatory controls, is likely to further exacerbate existing insecurities for foreign workers in some circumstances.

In this study I examine four potential outcomes for foreign workers participating in the nominee programs:

(1)    Increased vulnerability to unscrupulous employers and third-party recruiters in the nominee selection process, which results from the high stakes associated with attaining permanent status;

(2)    Decreased capacity to navigate the already complex institutional environment that connects foreign worker programs and nomination processes because of rapidly changing eligibility requirements and insufficient access to information, which itself is largely controlled by employers and recruiters;

(3)    Increased reliance on employers to provide language and settlement services, linked with possibilities for creating a vacuum in services provision where governments have derogated public responsibility and when third-party actors are absent; and

(4)    Increased risks overall for the most vulnerable individuals, produced by a lack of attention to the dimensions of gender and racialization inherent in the TFWPs and carried over into the nominee programs.[viii]

These failures at the provincial level can, in turn, be connected to problems of both horizontal and vertical coordination between jurisdictions. Because the federal government has actively devolved a share of control over economic immigration processes to the provinces – and then further to employers and other private actors – the resulting diversity of nominee program designs and practices poses special challenges in both respects. A noticeable lack of coordination between the provinces and the federal government on nominee program evaluation and on policy integration with national economic immigration strategies has created a situation in which the provinces remain unaccountable for the apparently haphazard development of some programs, despite the immediate impacts that these changes have on foreign workers.  Similarly, the inability or unwillingness of provinces to coordinate their economic immigration policies and practices horizontally leaves each jurisdiction to “reinvent the wheel”, and leads to a greater risk of mismatched policy developments when one accounts for the fact that permanent workers’ constitutional mobility rights enable them to move freely between jurisdictions.[ix]   

In general, PNP models in Canada have been under-studied and unevaluated.[x] Whereas the opaque policy development processes behind recent changes to TFWPs have led to demands for a halt to current trajectories and for broader public debate on the interests, rights and obligations at stake for temporary workers and the Canadian public,[xi] similar calls for an open discussion on the PNPs have been mostly absent.[xii] Policy directions surrounding the PNPs, like those related to TFWPs, are still being decided outside of the public view. An equally rigorous, transparent approach to reform should be applied to evaluate current and potential institutional arrangements for lower-skilled temporary workers to attain permanent status. Given that there are multiple potential pathways that could be designed for temporary workers to make the transition to permanent residency, a basic assumption of this study is that different paths are likely to lead to substantially different outcomes for workers, as well as for employers and communities. In all cases, these diverging outcomes should be assessed in terms of their overall efficacy at confronting individual workers’ current insecurities and in terms of their long-term effects on governments’ abilities to coordinate pathways between provincial jurisdictions and with the federal government.

The need to examine current practices and developing trends is especially pressing for those provinces that are either just beginning to explore the scope of their economic immigration powers or undertaking processes of reform. The Province of Ontario, for example, established a pilot nominee program as recently as 2008, through which only higher-skilled workers are eligible to be nominated for permanent residency. Addressing the question of whether this program should be extended to include lower-skilled workers provides on way to think about the broader implications of using provincial nominations as a tool to target the precarious employment conditions confronting temporary foreign workers.

In Part II, I briefly discuss the relevant features of TFWPs in Canada. In all jurisdictions, these programs are the only conduits through which lower-skilled foreign workers enter the PNPs. In Part III, I map the legal and institutional structure of joint federal-provincial responsibilities for immigration in Canada, and compare different provincial approaches to nominee program development and operation. A substantial evaluation of PNP models follows in Part IV, using programs in Alberta and Manitoba as case studies to ground the discussion. In Part V, I discuss the role of organized labour as third-party actors in addressing some of the concerns that follow from PNP design and practice. Part VI concludes.