Proposed amendments in Canada’s immigration laws raising concerns over its implications on immigrants and its implementation

Although few days have remained in the scheduled second (and final) reading on Budget 2008-09 Implementation Bill (C-50) in the House of Commons, the proposed legislative changes in the Immigration and Refugee Protection Act (IRPA) raising concerns over its implications on prospective immigrants and possible “methods” of its implementation.

How these amendments will affect prospective immigrants?

The theme behind the proposed amendments is the management of growing backlog of Canadian immigration applications (approx. 900,000 as of December 31, 2007) to improve the responsiveness of existing system and better align it with the needs of labor market.

In this context, the fresh immigrants to Canada under the Economic Class are the most targeted audience of these modifications in the country’s immigration laws. This proposed legislation, if passed in its present form, will give visa officers the authority (based on instructions received by the Immigration Minister) to retain or dispose of a new application received on or after February 27, 2008, whereas the existing system processes applications on first-in, first-out basis. To accept and fast track a new application, hold for processing at a later date, or return to the applicant (with fee refund) will entirely be a discretion of visa office that should be exercised on the changing requirements of Canadian job market. So, new applicants who may otherwise qualify for consideration under the applicable federal or provincial rules are no longer guaranteed that their applications will be processed. Moreover, the proposed legislation would authorize the Immigration Minister to set limits on the types of applications that can be accepted for processing in a given year (allowing the Minister to fast track skilled immigrants over those applying on grounds of family sponsorship or reunification, for example).

The proposed legislative change will not apply to the Economic Class cases that had been received or are in-process prior to February 27, 2008. These cases will remain in process according to the existing legislation. However, the change could cause a positive or negative impact on these cases. If passed and implemented, this change will help to boost the processing of these cases. However, it is almost impossible to estimate that how much reduction in wait times will possible and how much time this change will take to deliver the results? On the other hand, if the queue of potential immigrants gets too long, then the cases which does not best match the current needs of the labor market, as defined by the Minister, could be discarded in order to cap the backlog.

The proposed legislation would also not apply to family class cases. However, if Minister gets the power to eliminate any humanitarian and compassionate claim filed outside Canada, this will also include claims seeking to reunite families or partners.

The changes will not affect refugee claimants too, because applicants are technically only considered refugee claimants if they file their claim while physically in Canada. A proposed amendment in Subsection 25(1) pertaining to humanitarian and compassionate considerations will authorize the Minister to determine any humanitarian and compassionate applications from overseas and may grant the foreign national permanent resident status or an exemption from any applicable criteria.

What would be the possible “methods” to practically implement proposed amendments?

Although the proposed amendments in the bill provide no details about how the Minister’s powers might be interpreted or what sort of changes to the system might be involved, but it seems that current pass marks for most categories of Economic Class (67 points under the Federal Skilled Worker category, for example) will not be affected.

And if the pass marks for Economic Class categories are not affected, it could assume that “adaptableness” of an applicant with Canadian society and labor market will actually determine the future of a new application. For example, in Federal Skilled Worker program, an applicant with approved job offer from a Canadian employer and a conclusive proof of language skills (such as IELTS) will likely accept and proceed in an expedite manner. Similarly, people having at least two years of fulltime study and/or one year of work experience in Canada will be given priority.

Finally, it is also not clear whether a Ministerial decision under the new amendments to exclude a group or individual from consideration could even be appealed to a court.