IELTS for work permit – A Federal Court point of view

Alina is a Regulated Canadian Immigration Consultant (RCIC) who takes her job seriously. One of Alina’s clients intends to apply for a work permit. However, the applicant does not hold IELTS test results. Alina wonders if IELTS for a work permit is necessary. Consequently, she looks for case laws to include in her submission letter.

IELTS or other language tests for a work permit

The idea is that every temporary foreign worker (TFW) must have enough abilities to work in Canada [practitioners see R200(3)(a)]. Knowing the official languages of Canada becomes meaningful in this context. While there are four official language tests, I focus on IELTS as this article is in English, and CELPIP is primarily available in Canada. Moreover, my other article discusses language tests for a work permit. Please read that article if you are not familiar with the basics.

Why does Federal Court have a say?

The Federal Court of Canada (FC) is the authority that runs judicial review hearings on IRCC decisions. The decisions by the FC are binding for immigration decision-makers. Therefore, if a Federal Court decision discusses IELTS for a work permit, it could affect future decisions by immigration officers. Luckily, some recent decisions by the Federal Court discuss IELTS and language requirements for work permits in Canada. Let’s explore two of them.

IELTS for Start-Up Visa Work Permits: Serimbetoz v. Canada

This case focuses on three Start-Up Visa work permit applications (i.e., LMIA exemption code A77). The officers in the visa office in Warsaw refused the applications partly because of missing IELTS test results. In paragraph 34 of the decision, Mr. Justice Diner writes:

[34] The Officer also found, for each of the three Applicants, that they had not submitted proof of language scores. I note that while language proficiency is a requirement for permanent residency under the Program, it is not required with an application for a work permit. Certainly, an officer may consider language capability as part of the ability to perform the work sought, but here the Officer simply made the comment that IELTS [International English Language Testing System results] is “not on file and language ability is required.”…

Serimbetoz v. Canada (Immigration, Refugees and Citizenship), 2022 FC 1130 (CanLII), https://canlii.ca/t/jrbwn, retrieved on 2022-12-18

Reading this case hints that IELTS is not the only source to evaluate an applicant’s language abilities. Of course, one could argue that this case is for a bridging work permit for a particular permanent resident application. Therefore, expanding it to all work permit applications is quite a stretch. However, one could argue that Mr. Justice Dinder shows that refusing a work permit for not submitting IELTS test results is unfair.

IELTS for other work permit applications: Safdar v. Canada

Another recently decided judicial review hearing broadly looks at IELTS for work permits. In the 2022 Safdar v. Canada decision, the Honourable Madam Justice Strickland writes:

[10] As a starting point I note that, pursuant to s. 200(3)(a) of the IRP Regulations, an officer may not issue a work permit if there are reasonable grounds to believe that the applicant would be unable to perform the work sought. The onus is on the applicant to provide sufficient supporting documentation to establish that they meet the requirements of the IRP Regulations (Patel v Canada (Citizenship and Immigration), 2021 FC 483 [Patel] at para 30), including that they have the requisite language skills to perform the work offered where there are reasonable grounds to believe that such language skills are necessary to perform the work sought (Sun v Canada (Citizenship and Immigration), 2019 FC 1548 at para 34). The assessment of a visa applicant’s language ability is “both factual and discretionary” (Brar v Canada (Citizenship and Immigration), 2020 FC 70 at para 13; Sulce v Canada (Citizenship and Immigration), 2015 FC 1132 at para 8).

[11] However, “a visa officer must explain, in light of the available evidence, how an applicant fails to meet the language standard” (Bano v Canada (Citizenship and Immigration), 2020 FC 568 [Bano] at para 24). Put otherwise, while it is the Applicant’s onus to provide the sufficient evidence to meet the eligibility requirements, it remains the Officer’s task to evaluate the evidence before them and explain how it does not fulfill the eligibility requirement for which they are refusing the application (Lakhanpal v Canada (Citizenship and Immigration), 2021 FC 694).

Safdar v. Canada (Citizenship and Immigration), 2022 FC 189 (CanLII), https://canlii.ca/t/jmf9j, retrieved on 2022-12-19

This decision shows that the applicant must include evidence of their knowledge of the English language. However, IELTS is not the only tool to make it happen, albeit the best. Moreover, we could conclude from this decision the officers may take one of the following paths if they receive evidence from an applicant:

• Do not refuse the application because of the language skills; or
• Explain their concerns and ask for proof to address them.

The best practices

If you are a licensed practitioner, take the following steps when submitting a work permit application.

1. Review the NOC code related to the offered position in Canada to explore the language requirements. Furthermore, refer to other reliable sources to corroborate your findings. For example, you may search for judicial review decisions, officers’ notes for previous applications, or the IRCC Program Delivery Instructions.
2. Ask your client to take IELTS General or another official language test to meet or exceed the minimum requirements. While they may offer other documentation, they could risk a refusal. Some examples are Duolingo or TOEFL results. Remember, none of these tests are official. Moreover, the test results must be less than two years old.
3. When applying, explain your findings in your submission letter. Also, explain why your client meets the qualifications of those findings. Moreover, you could refer to preceding cases and ask the officer to request more evidence if they doubt your client’s capabilities.

Let us help!

If you need assistance with IELTS requirements for a work permit or other aspects of your practice, book a mentorship session with me. If you are an applicant, you may book a consultation session or fill out the following form. Consider filling out our assessment form for anything other than immigration issues.

Read this in Spanish