Immigration to Canada - Self Employed

Self-employed immigrant is a person who intends and has the ability to establish or purchase a business in Canada that will create an employment for himself and will make a significant contribution to the economy or the cultural or artistic life of Canada.

A person's experience or past success in business may be strong indicators of ability to establish a business in Canada. Hands on experience in management may also be an excellent measure of ability.

Though the a minimum of one year of work experience (or equivalent) is required, previous self-employment is not a pre-requisite.

A person's financial assets may also be a measure of intent and ability to do business in Canada. There is no minimum investment level for a self-employed person. The capital required depends on the nature of the business.

Contract work does not fall within the scope of the program if it results in an employer-employee relationship. Musicians or professors who provide their services to one company or institution may not qualify if this amounts to an employment contract.

The applicant's proposed business must make a specific contribution to the area of destination. This could be a specialized trade or service that is not readily available from a Canadian source.

To qualify because of a significant contribution to the cultural or artistic life of Canada, the applicant must plan to make a significant contribution in the cultural or artistic field. (artists, performers, sports personalities, craftsperson etc.)

Immigrating to Canada as a Self-employed Person

As a self-employed person, you must have relevant experience in cultural activities, athletics or farm management. You must also have the intention and ability to establish a business that will, at a minimum, create employment for yourself. You must make a significant contribution to cultural activities or athletics or purchase and manage a farm in Canada.

No immigration conditions are imposed on this class. You must have enough money to support yourself and your family members after you arrive in Canada.

Self-employed Persons — Regulatory Requirements

“Self-employed person” means a foreign national who has relevant experience and has the intention and ability to be self-employed in Canada and to make a significant contribution to specified economic activities in Canada.

“Relevant experience” in respect of a self-employed person, means at least two years in the period beginning five years before the date of application for a permanent resident visa and ending on the day a determination is made in respect of the application, in the following types of experience:

1. self-employment in cultural activities or in athletics, and
2. participation at a world-class level in cultural activities or athletics, or
3. farm management experience.

“Specified economic activities” in respect of a self-employed person, means cultural activities, athletics or the purchase and management of a farm.

SELECTION CRITERIA:

The applicant is assessed under the occupational demand factor. However, the applicant is not required to obtain at least one unit of assessment for occupational demand.

A self-employed person may not have a nil score under the experience factor. In order to pass screening the self-employed person must have at least one unit for experience.

Self-employed applicants should show a realistic plan of action and a good understanding of the market conditions in Canada.

There are currently no provisions in the Regulations to impose terms and conditions on self-employed applicants.

There is currently no system in place to monitor self-employed persons in Canada.

In many circumstances, where an individual wishes to come to Canada to take part in a family business, he intends to invest in that business. The applicant, by purchasing part-ownership in the business, would become a self-employed individual. If his investment would result in an expansion of the business and increased productivity, the resulting job creation and increased consumption of related goods and services may constitute the "significant economic contribution" which must be demonstrated to satisfy the requirements specified in the Immigration Regulations.

The government is not interested in promoting either the establishment of small businesses in communities which are already well-served or self-employed individuals who possess expertise already easily available in Canada.

A self-employed applicant must be able to demonstrate that he will make a "significant economic contribution" to Canada.

CASE LAW

Ho v. Canada, 1989

The applicant intended to pursue the profession of self-employed music teacher. The visa officer decided that he did not qualify under the self-employed provisions as he had no international experience and no self-employed experience and refused her application.

"I am convinced that the visa officer interpreted the Regulations in such a narrow fashion as to render qualification virtually impossible and as a result, treated the applicant unfairly.

The analysis appears to me to require consideration of three questions.

First, is the applicant an accomplished musician (in which international recognition ought to be of great assistance)?

Second, can he teach?

Third, can he be self-employed as a teacher?

It is obvious that the applicant was successful in the first two and by inference at least, somewhat successful in the third. His only apparent failure in respect to the third issue is the finding of a lack of actual experience as a self-employed teacher.

By placing undue emphasis on the lack of experience as a self-employed teacher, the visa officer allowed that partial failure on the third issue to override success on the other tow, and interpretation that made it almost impossible for this applicant to succeed. Accordingly, there has been a fundamental breech of the duty of fairness to this applicant, which is sufficient to warrant the relief sought.

Held: The application for certiorari and mandamus was allowed with cost.

Yang v. Canada, 1989

This case is similar to Ho v. Canada.

Even if an immigration officer is not in a judicial or quasi-judicial capacity, he must at any rate give the immigrant an opportunity of satisfying him of the matter in the subsection, and, for that purpose, let the immigrant know what his immediate impression is, so that the immigrant can disabuse him.

Grube v. Canada, 1996

Visa officer erring in rejecting applications without interviewing applicants. Visa officer placing undue emphasis on applicants’ lack of past business experience and international reputation.

Reg. 11.1 – For the purpose of determining if an immigrant and the immigrant’s dependants will be able to become successfully established in Canada, a visa officer is not required to conduct an interview unless, based on a review of the visa application and documents submitted in support thereof, the immigrant is an entrepreneur, an investor, a provincial nominee or a self-employed person.

Mehta v. Canada, 1997

The officer stated that it was unlikely that the applicant’s proposed business would provide sufficient income to support a family of four and it was unlikely that it would make a significant contribution to the economy of Canada.

"I am satisfied that the officer’s analysis of the applicant’s application as a "self-employed person" was error-free. His conclusions about the applicant’s poor prospects in Canada were adequately supported by evidence.

The officer also wrote that the applicant, by entering the United States without visa and by eluding examination at a U. S. port of entry, violated American law and that, if he had committed these acts in Canada, he would have violated Canadian law.

However the officer did not identify the United States’ statutory provisions which the applicant purportedly breached, and the respondent has conceded that this constituted an error in law in the assessment of criminal inadmissibility under s. 19(2)."