Consequences of Illegal Work
You heard about it from friends, neighbours, relatives. You know it exists, yet you don’t find advertisements about it in newspapers and magazines. You know it is against the law, yet you heard from your friends that “they did it.” You desperately need money and you wonder – if maybe you too should… become an illegal worker. That is, to accept employment without having authorization to work from the Canadian government.
The authorization comes in the shape of a work permit – a document allowing you to accept employment in Canada. If for some reason you are not eligible (for example, if you are a student in your first year in Canada, a visitor on a tourist visa, a denied refugee claimant) and are considering undocumented employment, here are several basics you need to know.
First of all, it is illegal. As a Canadian immigration law professor Lynn Ruggles from Seneca College in Toronto explains, “A foreign national is not authorized to work without a permit. If she or he is working without one (never applied for one; permit expired; changed jobs without new authorization) or was working without one and has ceased to work, then that person is in breach of the Immigration and Refugee Protection Act (IRPA).”
The legal consequences of working without authorization are rather grim. “A hearing may be held at the Immigration and Refugee Board’s Immigration Division,” Ruggles explains, “where the allegation of working illegally would be presented.”
It is the Immigration Division member who decides “whether the foreign national failed to comply with IRPA,” says Ruggles. The decision that you have indeed failed to abide by the law would rule you inadmissible to Canada. This would lead to an exclusion order, which would prevent you from returning to Canada for one or two years.
Claiming that you didn’t know that you had to get a work permit will not help. According to Ruggles, an illegal worker can be found in violation of the IRPA on the grounds of non-compliance regardless of whether the worker knew or didn’t know that it was necessary to obtain a work permit.
The dry terms of the immigration laws might sound intimidating, but do they ever apply to the reality of busy restaurants or noisy construction sites, where nobody cares whether you have a permit or not?
To prove that you are working illegally, evidence is needed to show that services were provided in exchange for some kind of compensation. Immigration regulations state that “work” means “an activity for which wages are paid or commission is earned, or that is in direct competition with the activities of Canadian citizens or permanent residents in the Canadian labour market.”
Employers can avoid a paper trail by paying in cash. “You work, you make money, I don’t care about paperwork,” says Alexandro (not his real name), an Ottawa pizzeria owner who hired several foreign cash workers. “What can they – the government – do? If they come, just tell them you are on training. How can they prove that you are actually working?”
For employers who hire undocumented workers, penalties range from a conviction and a fine of up to 50 thousand dollars to imprisonment for up to two years.
The CIC and Canada Border Service Agency (CBSA) are the primary bodies that make sure the immigration laws are not being violated. The agency’s spokesperson Sabrina Mehes says, “Part of CBSA’s mandate is to investigate persons in violation of the Immigration and Refugee Protection Act.”
The agency preferred not to share how they detect foreigners who breach the country’s work regulations, but immigration expert Lynn Ruggles says that sometimes “immigration investigators may be made aware of certain employers who hire illegally, or other reliable information comes their way. Sometimes, it is by chance – a foreign national comes to the attention of the police (for example, through a traffic violation) and the police contact immigration officials.”
In theory, undocumented workers are protected by the same employment laws as Canadian citizens. But in reality, you are in no position to complain about getting less than minimum wage, not getting paid at all or any other aspect of your workplace.
“Non-status workers fear that if they complain about working conditions, their employers will notify immigration authorities of their lack of legal status, and the workers will be vulnerable to deportation from Canada. This fear, which is not irrational, leads non-status workers to tolerate conditions that are dangerous, exploitative and unlawful,” explains Audrey Macklin, an immigration law professor at University of Toronto.
“The fear is not unreasonable”, adds Naveen Mehta, a human rights lawyer with United Food and Commercial Workers Union. “You’ve got to remember: undocumented workers are not typically aware of employment law,” he says. “And even if they are, employers tell you: ‘Do the job or you are out, you are going home, we are going to call immigration on you’.”
“Employers pay them below minimum wage, and the safety standards often don’t exist in their jobs, they are always threatened,” says Mehta.
In their study of recent immigrants’ work experiences in the Greater Toronto Area, University of Toronto researchers Patricia Landolt and Luin Goldring found out what some of their interviewees had faced accepting precarious employment.
“They can be working seven days a week, they probably don’t have a bank account or have difficulties opening one, so their employer will pay them cash. So when you get paid, the control over what you get paid is lost,” explains Landolt. She says some of the respondents were owed thousands of dollars by their employers. Some stayed, hoping to get paid eventually.
Others gave up and looked for another job. “There’s a clear sense of being really vulnerable…[and] not just at work: if you are ill, if your house is burning down, people think twice before making use of calling 911 because they are in this precarious situation.”
Surviving in a new country can sometimes be a challenging experience. Working without authorization can make this experience even more stressful.