Canadian Immigration, Diplomats and Foreign Representatives

Diplomats and CEC Class

Posted on by Elda Sarte-Nosè
Diplomats CEC Class

Diplomats and CEC Class

According to Global Affairs,

“Canada hosts close to some 8000 diplomatic agents stationed across 189 diplomatic missions, 480 consular posts and over twenty international organizations, including a few other special representative offices inside Canada”. 

Those numbers plus their unique circumstances should put into perspective the argument that foreign representatives are assessed differently from other foreign nationals.  The eligibility determination for permanent residence for them is much more complex compared to most other applicants. 

“Diplomatic agent” while used to denote all persons with partial or full diplomatic immunity, the designation refers to diplomatic missions with functions described in the Vienna Convention on Diplomatic Conventions.  This article will refer to foreign representatives because it is all-encompassing. 

“The term “foreign representative” refers to persons on bilateral and multilateral postings in Canada entitled to diplomatic, consular or another official status under the Foreign Missions and International Organizations Act (FMIOA). The term also includes a home-based staff of the Taipei Economic and Cultural Office (TECO) and Palestinian General Delegation (PGD), who are granted courtesy accreditation.”  

It would be an exercise in futility to itemize the many variables that differentiate one application from the next. Instead, I highlight a few details to illustrate that there is no one-size-fits-all strategy for diplomatic agents or foreign representatives wanting to become permanent residents of Canada. 

Note: if you are an accredited foreign representative with full or limited privileges and immunities working in Canada, you need to recognize that eligibility to apply does not equate necessarily to qualifying as a skilled worker.  For decades, diplomats have been approved for permanent residence in Canada – when they qualify. In the event of a refusal on an application for permanent residence, it is important to realize that the IRCC is not infallible.  This office has been involved in cases where IRCC has made mistakes and has corrected them at our request on behalf of clients.

For diplomatic agents working in and accredited by Canada

You should consider the complexities involved in your case before applying for permanent residence because the details will have a marked effect on a final decision. 

To scratch the surface, here are examples of some considerations:

  • Treaties, Bilateral and Multilateral International Agreements, Privileges and Immunities, Acts and Regulations, Headquarter Agreements and Circulars entered into between State Parties. 
  • International Organization Agreements, including the specific Headquarters Agreements Canada, have signed with the specific international organization. 
  • Whether or not you entered Canada with a temporary resident visa or eTa. 
  • Whether you received your accreditation while living abroad or after approval to enter by the Canada Border Services Agency.
  • The job, skill level, the Mission that employs you in Canada, the sending State (of the foreign representative), and the limited or full privileges and immunities of the diplomatic agent.  

While the above is but a small sample of the factors that may apply to your case, the below are further examples of how your current standing will influence future decisions within the application processes.

Some foreign representatives are working in Canada with the authority to do so without a work permit (like other foreign nationals performing activities in occupations deemed exempt from having to obtain an actual work permit to work inside Canada) [R 186]. 

Other foreign representatives applied for and received an actual work permit, after entry, to work in occupations and activities for a “named foreign mission employer” and deemed exempt from the Labor Market Impact Analysis (LMIA) approval process 

[R 199] and [R 205].  

As of today, there is nothing in immigration law to prohibit a foreign representative from applying to change the terms and conditions of their temporary entry, which can prove beneficial, though hinges on a multitude of factors.  The Immigration Act and Regulations have not been amended to prohibit foreign representatives accredited by Canada from qualifying for permanent resident status as skilled workers in the Canadian Experience Class, though note that there are many elements to weigh into consideration. 

For example, one restriction is a limitation in the Canadian Experience Class Arranged Employment factor, which excludes outright a group of foreign representatives (not all) from receiving the points for that selection factor.  All other foreign representatives may qualify and be awarded the points if they meet the requirements [R 82].

Another example is that the Foreign Missions and International Organizations Act (FMIOA) does not prohibit changes of status in Canada.  The only mention of immigration I found is a restriction that refers to sections of the Immigration and Refugee Protection Act (IRPA) that include primarily serious inadmissibility. 

Regulations and Orders in Council (Orders)

Conventions

The FMIOA, Part ll International Organizations

Privileges and Immunities

5(1)(4)

“Immigration restrictions

Subsection 5(4) In the event of an inconsistency or conflict between an order made under subsection (1) and any of sections 33 to 43 of the Immigration and Refugee Protection Act, the order prevails to the extent of the inconsistency or conflict”. 

amended by adding the following after subsection (3):

  • Marginal note: Immigration restrictions

(4) In the event of an inconsistency or conflict between an order made under subsection (1) and section 19 of the Immigration Act, the order prevails to the extent of the inconsistency or conflict.

There are many details, but to say that you did not know or did not understand, does not excuse a missed step in the process and will undermine your case.  For example, you are required to inform the Office of Protocol when you change status and failure to do so may come back to haunt you and your dependents. 

“… if a foreign representative and his accredited family members have obtained a new status under Immigration, Refugees and Citizenship Canada (IRCC), the mission, international organization and other special representative offices must inform immediately the Office of Protocol. This also includes accredited family members who are no longer qualified as “members of the family forming part of the household” (including domestic workers) or have obtained new statuses with IRCC” 

Lastly, always keep in mind that Global Affairs Canada publishes guidelines that tell you to refer to Immigration, Refugee and Citizenship Canada for all information regarding permanent residence in Canada. In a Circular Note (No. XDC-0081 of January 27, 2012): “the Department’s Office of Protocols does not provide policy or practical advice to accredited persons wishing to immigrate to Canada on a permanent basis and on related requirements. Such persons are encouraged to consult the  Citizenship and Immigration Canada website”.  [Emphasis mine] 

While only general points are covered here, there is enough to consider that perhaps an application for temporary or permanent resident status might not be just about completing a few online or paper application forms.