Ministerial Instructions will be Jason Kenney’s Greatest Legacy

There are numerous significant changes to Canada’s Immigration and Refugee Protection Act (“IRPA”) buried inside the 2012 Budget Implementation Act (the “BIA”).  The first change, the termination of approximately 300,000 Federal Skilled Worker Applications, was expected.  The other, the expansion of the role of Ministerial Instructions, was not.

Jason Kenney, the Minister of Citizenship and Immigration Canada (the “Minister”), has made several significant changes toCanada’s immigration system.  Many of these are substantive (who is eligible to immigrate), and will likely be changed by future ministers and governments.  His involvement in the creation and expansion of the use of Ministerial Instructions, a procedural change, however, may be his most enduring legacy.

In 2008, amendments to IRPA provided that the Minister could issue instructions to immigration officers (“Ministerial Instructions”) regarding which applications were eligible for processing.  This overturned the government’s long standing obligation to process all eligible applications in the order in which they were received. The Minister was further empowered to issue Ministerial Instructions to limit the number of applications processed, accelerate some applications or groups of applications, and return applications without processing them to a final decision.

It was through Ministerial Instructions that Citizenship and Immigration Canada (“CIC”) reduced and capped the number of occupations eligible for the Federal Skilled Worker Program, capped the number of Investor Applicants, suspended the Entrepreneur program, and put a moratorium on parental and grandparent applications.  The Minister was able to do all of this without consulting Parliament, or amending IRPA and its regulations.

Division 54 of Part 4 of the BIA expands the role of Ministerial Instructions by further providing that the Minister can give instructions establishing and governing classes of permanent residents as part of the economic class.  In other words, while the Canadian Experience Class was created after extensive consultation and notice by amending the Immigration and Refugee Protection Regulations, future economic programs will be established through the sole discretion and timing of the Minister.

The BIA also provides that the User Fees Act, which requires that the Government of Canada take certain consultative steps before establishing fees, does not apply in respect of fees set by Ministerial Instructions created economic streams.  Furthermore, the BIA changes will allow for the retrospective application of certain Ministerial Instructions, if those regulations and instructions so provide.

Finally, the BIA explicitly provides that a Ministerial Instruction may set the number of applications in an immigration category that will be processed in any year can be zero.

As the media becomes aware of some of the above changes in the BIA much will be written about whether Jason Kenney is centralizing power too much.  Others will write about whether people will still want to apply to immigrate toCanadaif they know that the government may at a future date decide to not process their applications.

Minister Kenney has likely amended IRPA because he has specific policy and program objectives that he believes necessitate the ability to act quickly and decisively.  He clearly believes that Ministerial Instructions, rather than regulatory changes, are the way to achieve this.

However, as noted above, there will be a time when Minister Kenney is not the Minister of Citizenship and Immigration Canada.  There will also be a time when the Conservative Party of Canada is notCanada’s governing party.  The introduction and the expansion of the power to issue Ministerial Instructions will ensure that in the future a New Democratic Party or Liberal Party immigration minister will be able to quickly introduce, change, and effectively cancel immigration streams without having to consult Parliament.  There is no way that any future immigration minister, regardless of political stripe, will give this up this power that Jason Kenney has given them. Canada’s immigration system is not going back.

And that is why I think that the Ministerial Instructions will be Jason Kenney’s most enduring legacy.


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