Annual immigration report glosses over contentious issues

On Monday this week Immigration Minister Chris Alexander stood in the House of Commons to announce the filing of the 2013 annual report on immigration. It was a perfunctory performance, lasting less than a minute, unaccompanied by any speech or comment on the report’s contents. Mandated by the Immigration and Refugee Protection Act, the report includes a description of activities and initiatives undertaken by the Immigration Department in the previous year. As well, it lists the number of persons who became permanent residents and the number projected to become permanent residents in the next year; including those entering under provincial immigration programs. The report usually lauds the government’s achievements and sets the tone on what matters most to the government.

This year’s report is no exception. The Minister’s introductory message notes the government’s focus on economic interests. He states, “For Canada to remain competitive in the global economy and support our national interests, we must ensure our immigration system is designed to best meet our current and future labour market needs.” The government plans continue high levels of immigration to Canada, with 240,000 to 265,000 new permanent residents expected in the next year.

A news release issued by the Immigration Department after the report’s release indicate that economic class immigration will increase to 63 per cent of all permanent residents in 2014, with 26 per cent admitted under the family class and 11 per cent admitted as refugees and on other humanitarian grounds. As well, under the economic class, up to 47,000 permanent residents will be admitted under provincial nominee programs. Provincial programs are viewed as strengthening local economics by allowing provinces to select immigrants to meet specific labour market needs and promote business development.

The number of permanent residents admitted under the Canadian experience class will also increase, to 15,000 in 2014. While not new, the annual report provides details on the government’s intention to start a new method of selecting economic immigrants in 2015, under what is called an “Expression of Interest” management system.

Copied from immigration programs in Australia and New Zealand, an EOI system allows prospective immigrants to indicate their desire to move to Canada by providing information about their qualifications. Eligible applicants will have their information posted on-line, to allow potential employers to select specific applicants. Those that receive job offers or who have in-demand skills will be invited to file immigration applications, which the government will process on a priority basis. The government expects an EOI system will reduce backlogs and keep processing times to a minimum.

Lost in the spin highlighting the government’s achievements and goals of working to improve the economy is the long-term reduction of the program for sponsoring parents and grandparents, known by its bureaucratic acronym, PGP. The government is still committed to changes beginning in January, 2014, which will reduce the number of new sponsorships for parents and grandparents. New rules will require sponsors to sign longer-term undertakings (20 years) to support these relatives, increase the required income to sponsor them and increase the qualifying period for proving the required income level to three years.

On Tuesday, in an attempt to appear supportive of family sponsorship, the Immigration Department issued another news release, stating the government’s intention to reduce the PGP backlog. Anyone sponsoring parents knows that wait times have increased up to eight years in some cases. The government expects it will have admitted up to 50,000 parents and grandparents in 2012 and 2013, with 20,000 more added in 2014. 

While existing applications will benefit from these measures, future sponsors will be limited to a cap of 5,000 applications each year (involving 9,000 immigrants), if they meet the more stringent sponsorship qualifications. This sleight-of-hand will see the backlog of applicants reduced to about 42,000 by the end of 2015. The release notes the government’s program to issue super visas, allowing parents and grandparents to come to Canada as visitors for up to two years, implying that it is acceptable substitute for permanent sponsorship. It has approved 26,000 visas since the end of 2011, which is fewer per year than would have been sponsored previously for permanent residence.

Tuesday also saw the release of second news release advising that the government will increase the number of live-in caregivers granted permanent residence in the next year to 17,500. Live-in caregivers are admitted as workers who, after completing two years work, may apply for permanent residence. The government allowed a backlog to develop in processing their permanent resident applications by failing to increase processing levels, despite allowing more into Canada as temporary workers.

The annual report does not address the issue of temporary foreign workers admitted to Canada. The latest immigration statistics show that 125,000 temporary workers were admitted in the first six months of this year, a 5-per-cent increase from last year. New rules restricting language requirements, mandating equal pay for foreign workers and requiring employers to pay a $275 processing fee came into effect in July. It is not known yet if these measures have decreased the number of temporary workers admitted to Canada.

The annual immigration report is another attempt by the government to sell itself as a competent manager of the economy. Immigration measures planned for 2014 continue to focus on the means of attracting permanent residents who will benefit Canada, and who are not a drain on health or social services. It glosses over contentious issues, such as whether or not current policy is meeting other objectives of immigration law, such as reuniting families in Canada, and maximizing social and cultural benefits of immigration. The results of the governments measures will not be known for several years, by the time the government seeks renewal of a mandate to govern in 2015.

William Macintosh started practising as an immigration lawyer in 1984. You can reach him for advice or help on any immigration or citizenship matter at 778-714-8787 or by e-mail at macintoshlaw@gmail.com.

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New Immigration Minister to face continuing challenges

On July 15 Prime Minister Stephen Harper announced the appointment of Chris Alexander, MP for Ajax-Pickering in Ontario, as the new Minister of Citizenship and Immigration, replacing Jason Kenney. Mr. Kenney had been the Immigration Minister since October, 2008, the longest tenure for an immigration minister since Charles Stewart held the position in the 1920s.

Mr. Alexander has publicly acknowledged that he has “big shoes” to fill, as Mr. Kenney has left large imprints on the immigration ministry and immigration policy. Mr. Kenney hasn’t left the field entirely as he will still have an impact through the implementation of the Temporary Foreign Worker Program as part of his responsibilities as the new Minister of Employment and Social Development.

During his tenure Mr. Kenney was responsible for several significant legislative changes to immigration legislation and regulations, many under the guise of public safety and crime protection issues. In 2010 Parliament passed the Balanced Refugee Reform Act which tightened the procedures for determining refugee claimants and removing failed claimants. Amendments in 2011 provided for greater regulation of immigration consultants. Under the 2012 Safe Streets and Communities Act immigration officers are empowered to refuse work permits to workers in vulnerable occupations subject to abuse. The Protecting Canada’s Immigration System Act in 2012 made further changes to the determination of refugee claimants in Canada and imposed restrictions on persons who arrive in Canada through organized smuggling. Finally, last month Parliament passed the Faster Removal of Foreign Criminals Act which makes it possible to deport permanent residents without appeal if convicted of serious criminal offences and sentenced to at least six months in prison.

Much of immigration policy is carried out through regulations. Under Mr. Kenney’s watch the regulations have been amended for various reasons, including eliminating some health services for refugee claimants and the creation of conditional visas for spouses in an attempt to reduce marriage fraud. He has been responsible for changes to eliminate the backlog of permanent skilled worker applications, wasting years of wait for many applicants.

The restrictions on health services for refugee claimants generated significant backlash, particular in the healthcare community. Fraud has been a major focus of the Immigration Department and the Canada Border Services Agency for the past few years, whether it be marriage fraud, misrepresentations made during immigration applications, and fraudulent claims of residency in citizenship applications.

Mr. Kenney’s last significant act was to announce proposed rule changes, to come into effect in 2014, that will restrict the ability of citizens and permanent residents to sponsor parents, and to limit the age of dependent children who may accompany immigrants to Canada under all categories to age 18 and younger.

The government’s purported priorities are job creation and the economy. Immigration policy, particularly under the current government, has changed – to use immigration as a means of meeting Canada’s economic needs. There has been less emphasis on family and humanitarian immigration categories. There has been a shift to meet short-term employment needs through temporary foreign workers. Some critics argue the changes have gone too far, with not enough public resources spent on job retraining of existing Canadian workers. They wonder why Canada continues to import more temporary foreign workers when the unemployment rate for young Canadians remains high.

The government faced political heat over two cases in the news since last year, with the proposed hiring of Chinese miners at the HD Mining site in Northern British Columbia and the Royal Bank of Canada’s training of foreign workers in Canada for future outsourcing of jobs. The government has yet to announce the results of its review of the temporary foreign worker program undertaken as a result of public outcry over these two cases.

Part of the problem is that job retraining is considered a matter of provincial responsibility and the provinces have not agreed what role the federal government should play. Until that is sorted out and political decisions are made on spending public monies to retrain Canadians, the federal government will probably continue to use temporary foreign workers as a solution for worker shortages in many occupations or to meet regional economic requirements.

While the immigration department and the border agency have increased resources for enforcement issues, the government has downloaded the cost of immigration selection to provinces by allowing them to select more immigrants. The government has centralized more immigration processing to fewer offices. Federal selection programs require applicants to spent more money to provide objective proof of their occupational and language qualifications. In an attempt to operate more efficiently there is less face-to-face contact with applicants.

There continue to be problems with citizenship applications and legislation. Conflicting decisions of the Federal Court over the residency requirement for grants of citizenship have existed for the past 20 years creating uncertainty and unfairness for applicants. Parliament has twice failed to pass a new citizenship law in the past 14 years. The government faces calls to restore or grant citizenship to persons born before 1947, who would otherwise be citizens if they were born after 1946.

Mr. Alexander will face all of these issues as the new Minister of Citizenship and Immigration. Some issues, such as the use of temporary foreign workers, require agreement with several federal departments as well as the provinces and is not something he can resolve alone. I expect he will face a growing backlash over the proposed age limits on dependent children. The rule change will result in decreased parental sponsorship and a shift in the age range of potential economic immigrants, as fewer immigrants in their 40s with children older than 18 will likely apply to come to Canada. Given Canada’s aging demographics that may be the government’s intention. Mr. Alexander will have to use his skill as a former diplomat to navigate his way through the public perception that the government’s immigration policies are too focused on economic goals.

William Macintosh started practising immigration law in 1984. You can reach him for advice at 778-714-8787.

Parliament and Federal Court fiddle while conflicting residence tests burn

Lawyers have known for years the unfairness of the three disparate tests applied by citizenship judges in deciding whether an applicant meets the residency test for citizenship under section 5 of the Citizenship Act. The inequity of the situation was recently highlighted in a decision handed down by Chief Justice Crampton of the Federal Court. In Huang v Minister of Citizenship and Immigration, 2013 FC 576, the Chief Justice said, “This case is yet another example of why something needs to be done to address the unacceptable state of affairs concerning the test for citizenship in this country.” His remarks are slightly more temperate than the comments of Justice Muldoon, who, as early as January, 1998, in Re Ten, 1998 CanLII 7296 (FC), said the situation created “a scandalous uncertitude in the law.” The irony of Justice Muldoon’s comment is that he helped create the incertitude in the law.

The scandalous situation involves the interpretation of “residence” in paragraph 5(1)(c) of the Citizenship Act. That provision requires that a citizenship applicant have three years of residence in Canada within the four years before applying. The term is not defined in the law, so it was left to Federal Court judges, on appeals from citizenship judges, to determine what the word meant. In 1978, in Re Papadogiorgakis, [1978] 2 F.C. 208, 88 D.L. R. (3d) 243, then Chief Justice Thurlow decided residence meant where an applicant had centralized his mode of living. In 1992, Justice Reed decided in Re Koo, [1993] 1 FC 286, that residence was where an applicant regularly, normally or customarily lived. Finally, in 1993 in Re Pourghasemi (1993) 62 F.T.R. 122, Justice Muldoon, certain his interpretation was correct and the others were, as he later described,  “ignoring the law,” decided residence meant physical presence. Comity, or unity of judgement in the Federal Court on the issue, has since yet to be found.

From that point onward citizenship judges have had three different standards to choose from. As new judges are appointed, they fall into one school of interpretation or another and any applicant with less than three years physical residence is left with the randomness of which judge they appear in front of. Relief through Federal Court was uncertain, depending on which school of thought the judge hearing an appeal sat in.

Normally an appeal court could sort out conflicting decisions. However, the Federal Court has the last word on the matter as the Citizenship Act expressly prevents an appeal from that court. So long as judges of the Federal Court hold conflicting opinions on the issue, applicants before a citizenship judge face unequal treatment under the law, depending on which judge decides their fate. Hence Chief Justice Crampton’s plea that Parliament should amend the Citizenship Act to expressly define residence. However, the government has attempted twice to change the law, in 1998 and 2010, without success.

Beside an amendment by Parliament, Chief Justice Crampton suggested that a citizenship judge bring a reference to the Federal Court under subsection 18.3(1) of the Federal Courts Act. That could be appealed to the Federal Court of Appeal, which could finally settle the different interpretations in the Federal Court that have lasted for the past 20 years. I would be surprised if a citizenship judge took the initiative to start such a reference.

I suggest it may be possible for an applicant to seek a remedy by means of judicial review through a provincial superior court or possibly the Federal Court, following the Supreme Court of Canada decision in Kourtessis v. MNR, [1993] 2 SCR 53. The court upheld a judicial review of a search warrant, from which the Criminal Code allowed no appeal, where a Charter right is at stake and no other effective remedy is available for vindicating it. Citizenship applicants are denied due process under section 7 of the Charter of Rights and Freedoms  by the unequal treatment of law due to conflicting decisions. An appeal to Federal Court under the Citizenship Act does not provide an adequate remedy. If the review court accepts jurisdiction, an appeal could lie to a higher court that would settle the issue once and for all. Of course, all of this depends on finding an applicant willing and able to take their case through the courts. It is an point worth giving further consideration.

Government gives second chance to take citizenship test

Citizenship and Immigration Minister Jason Kenney announced Monday changes to test rules for citizenship applications in hopes of reducing the growing backlog of applicants awaiting approval. Under the changes, applicants who had failed the required knowledge test will be given a second opportunity to write the exam, instead of awaiting a retest before a citizenship judge.

Under the Citizenship Act applicants for citizenship must pass a language test and a knowledge test. The tests are administered by a citizenship officer. If failed, applicants have to redo the tests before a citizenship judge. The Minister also announced that it will approve family members on their own merit. Previously, when one member failed a test, all the other family members would have to wait for the one member to pass the test before allowing them to continue on the process. The next step after passing the tests is an oath ceremony before a citizenship judge, at which time the applicants are formally granted Canadian citizenship.

According to the National Post, there is currently a backlog of 350,000 citizenship applications, with waits up to 29 months for a final hearing before a citizenship judge in Montreal and Vancouver.  The government processes up to 200,000 citizenship applications a year. Under new procedures, applicants who fail the knowledge test will be informed of the decision immediately and given a chance to rewrite the exam within four to eight weeks. The new procedure will apply retroactively to persons who have already failed the test.

The policy of treating family members separately is a belated recognition of the legal fact that under the Citizenship Act, each spouse has their own right to a decision that is not dependent upon the other spouse. Treating them together was an administrative practice and an unnecessary hurdle, inconsistent with the law. Prior to the change, an applicant could write to separate their application, usually providing a compelling reason why they should be treated separately. That will no longer be necessary and it avoids the burden of applicants applying to Federal Court for an order to compel a separate decision.

Part of the increased delay in processing applications has been due to the government’s crackdown on fraudulent applications by applicants who do not meet the residency requirement under the citizenship rules. In the past year the government has sent out detailed residency questionnaires to more than 20,000 applicants, to assess whether or not they meet the qualifications. The residency test is not settled in law and there are many factors, beside physical presence in Canada, that a citizenship judge may consider before deciding if an applicant be granted citizenship. Failing approval from a citizenship judge, an applicant may appeal the refusal to the Federal Court.

I provide advice or assistance with completing a citizenship application, particularly if you are concerned about meeting residency requirements. Early assistance with an application may save time and money, and avoid future court applications to determine your right to obtain citizenship.

William Macintosh is an immigration and citizenship lawyer, with experience since 1984. He may be contacted at 778-714-8787 or by e-mail at wjmacintosh@hotmail.com.

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