Immigration Applications are not Processed in the Order that they are Received

[Editor’s Note: The following appeared in the September 2012 version of The Canadian Immigrant.  In drafting a blog post about a similar topic I realized that I had never posted the article below to my blog. I am therefore posting this today. The title in The Canadian Immigrant article was “What Applicants Should Look for In New Immigration Rules.“]

People who follow Canada’s immigration system have undoubtedly had trouble keeping up with the rapid changes that Citizenship and Immigration Canada has introduced in the past several months. From the termination of 300,000 federal skilled worker applications to the proposed “Start-up Visa,” the announcements have been fast and furious, and each one has been debated extensively.

In discussing each individual change, however, the public discourse has largely missed the shift in the forest by focusing on each tree. There is a fundamental transformation underway in Canada’s immigration system, and it is important that anyone submitting a visa application understand this before applying.

First in, first processed

Traditionally, Canada’s immigration system operated on a first-come first-processed basis. Our immigration legislation created programs under which eligible applicants could apply. People submitted applications under various programs with the understanding that while they would have to wait in the queue behind those who applied before them, they could be certain that the Canadian government would process their applications before anyone who applied after them. Importantly, they could also be certain that their application would actually be processed according to the criteria that existed when they applied.

Enter the ministerial instructions

In 2008, however, the Government of Canada began abandoning the first-come first-processed system by introducing what are now commonly referred to as ministerial instructions. Ministerial instructions are directives by the minister of Citizenship and Immigration Canada (CIC). They allow CIC to accelerate the processing of some applications, set quotas on how many applications in a program will actually be processed, and introduce additional program requirements not found in Canada’s immigration legislation.

It was through ministerial instructions that CIC reduced, capped, and in 2012 suspended the acceptance of most new applications in the skilled worker program. While the Government of Canada recently published legislation saying that the skilled worker program will reopen on Jan. 1, 2013, and published a new points system, no one knows what additional requirements and restrictions the minister will impose on the skilled worker program through ministerial instructions. Ministerial instructions also enabled CIC to prioritize processing of applications such that people who applied to the skilled worker program after 2010 can expect their applications to be processed faster than those who applied before. It was also through ministerial instructions that CIC capped the number of investor applications, suspended the entrepreneur program, and put a two-year moratorium on parent and grandparent applications. The minister was able to introduce all of these significant changes without having to consult Parliament, without having to amend Canada’s immigration legislation and without having to provide any notice of the changes.

The 2012 Budget Implementation Act introduced further changes to Canada’s immigration system that expand the scope of ministerial instructions. Ministerial instructions will soon allow the minister to unilaterally establish new immigration programs and to govern how they are processed. Importantly, changes to such programs can be made retroactively. As well, the 2012 Budget Implementation Act specifically provides that ministerial instructions can set the number of applications that will be processed in a given immigration program at zero.

Terminating the skilled worker backlog

Perhaps the biggest indicator of how far Canada has moved away from a first-come, first-processed immigration system was the government’s decision to terminate all skilled worker applications that were submitted prior to Feb. 27, 2008. Approximately 300,000 applications are being returned to people who applied to immigrate and patiently waited in the queue.

As of writing, there are several lawsuits underway that will determine whether the 300,000 skilled worker applications are ultimately terminated. However, it is important for the potential visa applicant to understand that their application can be terminated after it is submitted or that CIC will simply not process it.

Applicants beware

The Canadian government appears to want the ability to choose which visa applicants it will admit after the applicants have already applied to immigrate to programs under which they are eligible. It wants the ability to process applications in response to the immediate and ever-changing needs of Canadian society. It is simply not interested in processing applications under programs that it does not feel will address these needs.

Applicants accordingly need to beware that, contrary to their reasonable expectation, applying for a visa under a program in which they are eligible to immigrate does not mean that they will be admitted. Their eligible application could be pushed back in processing priority, subject to a cap of zero or, worst of all, terminated.


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