Lawyers Weekly Article

FAST AND FURIOUS: THE CHANGING NATURE OF CANADIAN IMMIGRATION LAW

By: Evelyn L. Ackah and Nicki Guichon

April 18, 2012

Over the past few months, the Canadian government has announced a flurry of new regulations, policies and initiatives aimed at expediting the recruitment of foreign workers into Canada to meet the needs of Canadian businesses and employers. Many of these changes have been announced by way of government press releases, but have contained noticeably few details about implementation or timing.

The release of the immigration plan in Canada’s 2012 Federal budget announced on March 29 follows the government’s recently publicized interest in moving towards an employer and industry driven immigration system. Prime Minister Stephen Harper recently stated at the World Economic Forum in Davos that "while we respect our humanitarian obligations and family-reunification objectives, we [will] make our economic and labour force needs the central goal of our immigration efforts in the future."

The 2012 Economic Plan, Jobs, Growth and Long Term Prosperity, outlines several initiatives to build a “fast and flexible immigration system”, such as introducing a new immigration stream for skilled tradespersons, a business immigration program to target more investment in Canadian growth companies and entrepreneurs, changes to the Provincial Nominee Programs in order to respond quickly to regional labour market demand as identified by employers, reducing the required work term for the Canadian Experience Class from 24 months to 12 months, and coordination with the Temporary Foreign Worker program to connect unemployed Canadians with available jobs across the country. All of these new initiatives are directed at serving current labour needs and expanding the Canadian economy by way of immigration, rather than addressing other stated Canadian immigration goals, such as family reunification or humanitarian and compassionate ideals.

Of the immigration initiatives discussed in the 2012 Economic Plan, one of the most concerning to immigration lawyers is the proposal to return previously submitted applications and refund up to $130 million dollars in fees paid by federal skilled worker applicants who applied under criteria established prior to February 27, 2008. The Federal Skilled Worker (FSW) program is the largest immigration program in Canada and is the main immigration stream for foreign nationals to obtain permanent residence status in Canada. There is currently a backlog of approximately 300,000 applicants, some of whom have been waiting for up to 7 years to have their applications processed. In February 2008 Citizenship & Immigration Canada introduced an Action Plan that reduced the backlog of approximately 640,000 applications by imposing restrictions on the types of applications received, such that the applicant either had to have a valid offer of employment, lived in Canada for one year as a temporary worker or student, or belong to a profession on the designated occupations list. Despite the significant reduction in the backlog by over 50%, the government appears to be considering a further means to eliminate the current backlog.

The federal government’s plan to deal with the current immigration backlog is to return the 300,000 applications and provide a refund of the government fees paid. However, is this an efficient, fair and legal strategy to deal with the current backlog?

Each FSW application is a long and arduous process to complete. Not only must an applicant spend time and money gathering extensive documents (and translations) and completing forms, but they must also pay for police checks, language exams, medical exams, and perhaps legal fees, costing much more than just the fee paid with the application. Beyond the issue of fairness in forcing people who have been waiting years to start the application process all over again, is the legal issue of whether the government can retroactively legislate away the backlog.

In June 2002 changes to the Immigration and Refugee Protection Regulations came into force altering the approval process of FSW applications by increasing the pass mark on the points system from 70 points to 75.1 In the Federal Court case Dragan v. Canada (Minister of Citizenship and Immigration) (2003), 102 individuals who had applied for the FSW program prior to January 2002 were successful in their application to the court requiring the government to either process their applications before the deadline or assess them on the previous 70 point system. The court held that the rights acquired under the Act prior to 2002 survived according to section 43 of the Interpretation Act, which preserves in force the rights and duties accrued under repealed legislation. The manner in which the current government intends to draft the legislation dealing with returning the FSW applications is yet to be announced. However, many FSW applicants nickare already preparing new applications and considering all options to ensure they can hold onto the dream of immigrating to Canada and reuniting with family members.

One has to ask, if the government can afford to refund $130 million dollars to applicants, why can they not simply put more resources towards the processing of these same applications?

1 http://www.canlii.org/eliisa/highlight.do?text=federal+skilled+worker&language=en&searchTitle=SC+2001%2C+c+27&origin=%2Fen%2Fca%2Flaws%2Fstat%2Fsc-2001-c-27%2Flatest%2Fsc-2001-c-27.html&translatedOrigin=%2Ffr%2Fca%2Flegis%2Flois%2Flc-2001-c-27%2Fderniere%2Flc-2001-c-27.html&path=/en/ca/fct/doc/2003/2003fct211/2003fct211.html