Retrospective Legislation

In a recent Borderlines episode, Garth Barriere, Eric Purtzki, Peter Edelmann and I discussed the constitutionality of laws that are retroactive or retrospective.  This episode can be found here:

A link to this episode’s synopsis can be found here.

The following post provides a more detailed written summary of retroactive and retrospective legislation in the immigration context.

Continue reading “Retrospective Legislation”

Weeding Out Crooked Immigration Consultants

The following is an article that I wrote for Policy Options.

The first paper that I wrote in law school was about legal ethics. I submitted a seven-page essay arguing that restricting the practice of law to graduates of law school was unethical, given the crisis of access to justice that so many face, and that the free market should instead regulate who can and cannot charge fees to provide legal representation. I got my lowest mark in law school.

The study and practice of law moderated many of my views, and my opinion on who should be able to practise law has been adjusted accordingly. It has become clear to me that those who receive fees in exchange for the provision of legal advice must be regulated, and that in an era of easy Internet marketing, paid-for reviews and fake news, the free market is incapable of performing this role. However, I still believe that access to the ability to practise law should be extended beyond those who have completed three years of law school.

It may not be surprising then that, unlike many immigration lawyers, I do not consider the existence of immigration consultants to be inherently problematic. When I started practising immigration law, a local immigration consultant was an important mentor to me, and some of the most passionate people I know who are advocating for greater justice and fairness in Canada’s immigration system are consultants.

Unfortunately, it is not possible to practise immigration law for long before encountering people who have been the victims of immigration consultants who provided extremely bad representation, ranging from sheer incompetence to fraud. In many other cases, the prospective immigrants were not victims of fraudulent consultants but willing participants in their schemes. What’s more, it is also apparent that many unscrupulous immigration consultants do not fear any consequences from their regulator and seemingly act with impunity.

I do empathize with their regulator, the Immigration Consultants of Canada Regulatory Council (ICCRC). In 2003, the Canadian Society of Immigration Consultants (CSIC) was established as the first independent governing body of the immigration consulting profession. In 2008, the House of Commons Standing Committee on Citizenship and Immigration determined that the CSIC was not providing adequate regulation, and in 2011 the CSIC was replaced by the ICCRC. Now, in June 2017, the same parliamentary committee has determined that the ICCRC is not doing a sufficient job of regulating consultants and protecting the public, and has again recommended that a new regulatory body be created. It is not difficult to envision this cycle repeating itself every five years.

The deficiencies of the ICCRC are constantly contrasted with the strengths of provincial law societies, which hardly seems fair given that most provincial law societies are over a hundred years old, while the ICCRC has existed for only six. Perhaps the best approach that the government could take to the regulation of immigration consultants is to allow the consultants’ regulatory body time to gain experience and mature.

However, until the immigration consulting profession demonstrates that it can be effectively self-regulated, the government must act to protect the public from unscrupulous and incompetent consultants. The people who would benefit most are the many hard-working immigration consultants who constantly see their profession’s reputation dragged through the mud.

The Royal Canadian Mounted Police and the Canada Border Services Agency are both responsible for investigating licensed immigration consultants who engage in fraud. A representative of the CBSA recently told the House of Commons Standing Committee on Citizenship and Immigration:

We have just over 200 criminal investigators across Canada who are responsible for investigating an array of crimes under IRPA [Immigration and Refugee Protection Act], as well as under the Customs Act. As a result, we use a tiered process with respect to issues that involve consultants. Generally, we go after individuals, or investigate individuals, who are the organizers of, let’s say, mass misrepresentation or mass fraud, rather than the one-offs. In terms of how we’re approaching this, we are looking at where the greatest deterrent could occur. We are looking at the big organizers, rather than the individual who may have provided information for profit in one case, and so forth. I do believe that we are using the resources that we have to the best of our ability, based on a risk profile.

It is understandable that the CBSA would want to pursue the most flagrant ethical breaches, such as the misdeeds of a Vancouver “ghost” (unlicensed) consultant who recently went to jail for eight years after putting fraudulent passport stamps in people’s passports. But the cumulative effect of the everyday misrepresentations — including, as recently reported by the CBC, consultants facilitating the illegal charging of fees by employers to employees for jobs — is just as great a threat to the integrity of Canada’s immigration system.

Criminal prosecutions require a high level of proof, and the criminal justice system has limited investigatory and prosecutorial resources. In any case, incompetent (as opposed to fraudulent) representation would not result in criminal charges. So, in seeking ways to protect the public, Immigration, Refugees and Citizenship Canada (IRCC) and the Immigration and Refugee Board (IRB) must look beyond the criminal justice system.

There are several other measures that IRCC and the IRB can take.

First, the government should amend the Immigration and Refugee Protection Regulations to provide IRCC with the power to temporarily refuse to process applications submitted by people represented by consultants whom IRCC has previously determined to be unscrupulous. Prospective immigrants should be advised that the processing of their applications will not continue until they retain new representatives. IRCC should also be allowed to charge fines. IRCC has already implemented both bans and fines to penalize employers who misrepresent themselves in applications to hire foreign workers. These have proven to be excellent deterrents, and the same principles and techniques could be utilized to deter fraud by consultants.

This is not to suggest that IRCC should become a permanent regulatory body for consultants, as some people have suggested. It is crucial that immigration consultants be able to be passionate advocates for their clients, including those accused by the government of being inadmissible to Canada and those who are clearly being deliberately blocked by the bureaucracy even though they are legally qualified to immigrate. If IRCC becomes both the visa adjudicator and the regulator of consultants, many consultants would likely be wary of aggressively challenging it. However, until immigration consultants fear crossing their regulator as much as lawyers fear breaching the rules of their respective law societies, the IRCC should have the ability to refuse to interact with known unscrupulous consultants.

Second, the IRB should be given the power to refuse to allow certain consultants to appear before it. An IRB official recently told the Standing Committee on Citizenship and Immigration:

Board members use a kind of compensatory mechanism in a hearing room. If they’re dealing with a consultant who is not able to present the client’s case, they get drawn into the arena and they have to start eliciting the evidence. It’s not something a lot of members like to do, but sometimes they feel they have to do that in order for the case to go ahead that day and for there not to be a miscarriage of justice.

This is a tremendous waste of scarce resources. The Immigration and Refugee Board should be able to simply refuse to allow incompetent consultants to represent clients before it. The IRB should work with the regulator to develop appropriate standards and testing that any consultants who wish to appear before it must pass.

Third, a significant obstacle to combatting fraud by consultants is that prospective immigrants who learn that they committed misrepresentation in an application because of poor advice fear lodging complaints against their representatives; they believe, often accurately, that they may be considered complicit in misrepresentation and could be removed from Canada or barred from entering. IRCC should allow such persons to correct their applications without fear of being barred from Canada for five years, which is the current penalty for any misrepresentation. While granting entry to someone who misstated a fact in an application may leave a bad taste in IRCC’s mouth, making progress against fraud by consultants should provide some satisfaction in compensation.

Finally, one of the principal reasons that people hire third-party representatives is language barriers. Most applicants in Canada’s economic-immigration programs must demonstrate a certain level of fluency in English or French, but this is not the case in Canada’s family reunification programs. People applying to immigrate under family reunification who do not speak either language are especially vulnerable to receiving bad advice, because they often do not understand the forms they must fill out. IRCC should provide as many of its forms as possible in the greatest number of languages possible. Any online forms should be able to connect to free translating services like Google Translate. When applicants can communicate with IRCC in their own language, unscrupulous consultants will be much less able to provide information on forms that does not reflect what their clients told them, and applicants will be less able to claim that they did not know what an immigration consultant wrote on their behalf.

In my experience, the majority of immigration consultants are ethical and provide very valuable services. It is they, frankly, who have been let down by both the government and their regulator. They deserve better, and well-considered actions are needed to remove the bad individuals who are ruining their profession’s reputation.

The 2016 Liberal Immigration Numbers

On March 8, 2016, John McCallum, the Minister of Immigration, Refugees and Citizenship Canada (“IRCC”) tabled the 2015 Annual Report to Parliament on Immigration (the “2015 IRCC Report”)  It states that in 2016 Canada will welcome between 280,000 and 305,000 immigrants, with a target of 300,000.  While this target if fulfilled would be Canada’s highest annual immigration number in over a century, not all immigration categories are being increased.

The 2015 IRCC Report reveals that 2016 will be a good year for the spouses and common-law partners of Canadians.  It also suggests that it will be a frustrating one for economic migrants, especially international graduates seeking to transition to permanent residency.

Before proceeding, it is important to note that while IRCC in the 2015 IRCC Report released a detailed breakdown of immigration statistics to Canada in 2014, it did not publish data for 2015.  As such, as of writing it is only possible to compare what the Liberal Government of Canada (the “Liberals”) is planning in 2016 with what the previous Conservative Government of Canada (the “Conservatives”) achieved in 2014, and what it planned in 2015.

Economic Immigration Programs

In 2016, Canada will accept between 54,000 to 58,400 immigrants in its federal economic immigration programs, which include the Federal Skilled Worker Program, the Canadian Experience Class, and the Federal Skilled Trades Class.  This represents a significant reduction from the 62,487 individuals admitted through these programs in 2014, and an even greater reduction from the 68,000 to 74,000 immigrants that the previous Conservative Government of Canada targeted for these programs in 2015.  The practical consequence of this reduction will be that the threshold number of points that is required in IRCC’s Express Entry application intake management system to apply for permanent residency will remain higher in 2016 than many people would have hopped.

The unfortunate reality is that 2015 will remain a frustrating year for many potential economic migrants, especially international graduates, who were especially negatively impacted by the introduction of Express Entry and its comprehensive ranking system that treats foreign and Canadian degrees the same. Although the 2015 IRCC Report states that the Liberals are committed to exploring reforms to the Canadian Experience Class to reduce barriers to students, this vague statement will be of little comfort to international graduates who month after month in 2016 remain below the Invitation to Apply threshold because of the reduced economic immigration intake.

The 2016 IRCC Report states that in 2016 a further 46,000 to 48,000 immigrants will be admitted through the Provincial Nominee Program.  Prior to the release of the 2016 IRCC Report Minister McCallum stated that he would hand more control to the provinces over the selection of economic migrants. Provincial governments can be forgiven for wondering what happened.

The Liberal Government of Canada is also slightly reducing the number of spaces being made available for Caregivers, which includes the Live-in Caregiver Program, the High Medical Needs pathway and the Caring for Children stream.  They are also reducing the number of planned admissions in the Business Immigration programs, which should dash the hopes of those hoping for a return of the federal Immigrant Investor Program.

The overall result is that 2016 will likely be even a more difficult year than 2015 was for potential economic immigrants to Canada.  Obtaining a positive Labour Market Impact Assessment or an Express Entry provincial nomination will be more important than ever.

Family Class

On the other hand, the 2016 IRCC Report contains very good news for the spouses and common-law partners of Canadians.  The number of admissions in these streams will be between 57,000 to 62,000. This is a substantial increase from the 45,389 people admitted under this category in 2014, and the 45,000 – 48,000 that the previous Conservatives targeted in 2015.  Processing times will likely plummet, which will bring great relief to families that are either separated because of immigration or are in Canada and facing uncertainty.

On the other hand, the number of admittances through the parents and grandparent sponsorship programs will be surprisingly only be 18,000 – 20,000, which is about the same number as what IRCC under the Conservatives processed in 2014 and what it committed to process in 2015. The Liberals earlier this year boasted about increasing the cap of parent and grandparents that IRCC would accept into processing in 2016 from 5,000 to 10,000. By doubling the number of applications accepted into processing without increasing the actual number of admissions the only result can be slower processing times.

Refugees, Protected Persons, and Humanitarian Cases

By far the biggest change to Canadian immigration levels in 2016 will be the increase in the number of Refugees and Protected Persons.  In 2016 Canada will admit 51,000 to 57,000 Protected Persons and Refugees.  Of this, 24,000 to 25,000 will be Government Assisted Refugees, while 15,000 – 18,000 will be Privately Sponsored refugees. These levels are more than triple what they were in previous years.  The commitments are also high enough that IRCC should be able to go above and beyond the government’s commitment to resettling Syrian refugees, and to also help other displaced people.

Finally, the Liberals plan on admitting 2,800 – 3,600 to Canada as permanent residents through the humanitarian and compassionate (“H&C”) stream. This is a slight reduction from previous years.  Considering that the Supreme Court of Canada recently ordered that IRCC stop being so restrictive in its processing of these applications, it will be interesting to see if there is a resulting increase in H&C applications, and what sort of backlogs, if any, start to form.


Prior to releasing the 2015 Annual Report to Parliament on Immigration Minister McCallum told the media that immigration to Canada was a zero-sum game and that there would always need to be trade-offs.  Considering that Minister McCallum writes the rules to the game, it is difficult to understand why he could not maintain economic immigration levels to Canada.  These immigrants often already have jobs in Canada, speak one of Canada’s official languages, and are established.  Their tax dollars will likely help pay for the resettlement of the increased refugee intake.  The 2016 Liberal targets represent a 7% increase over last year’s immigration numbers. By not increasing this by only a further few percent, the government missed an opportunity to save thousands of people anguish, and to permanently welcome many deserving people as permanent residents.

The Green Party of Canada’s Immigration Platform

The Green Party of Canada (the “Green Party“) is a Canadian federal political party which currently has just one Member of Parliament, Elizabeth May.  In the nine federal elections that it has run candidates in it has only once gotten more than 5% of the popular vote.  Nonetheless, it is important to pay attention to their Green Party platform for three reasons.  First, the Canadian media gives the Green Party, and especially Ms. May, a considerable amount of coverage.  Second, much like the New Democratic Party of Canada has done it is foreseeable that the Green Party will also increase in popularity.  Third, Ms. May’s suggestion that the Green Party could wield significant influence in a minority Parliament, though not probable, is not impossible.

On September 9, 2015, the Green Party released its election platform.

As well, the Green Party also has on its website a document titled Vision Green 2015, a document which contains numerous Green Party commitments.

Continue reading “The Green Party of Canada’s Immigration Platform”

Impacts of Budget 2013 on Immigration

The Government of Canada has released its budget for 2013 (“Budget 2013″).  Budget 2013 contains several announcements of changes to immigration programs which the Government of Canada will introduce this year, including (my editorial comments in maroon):

  • Providing $42-million in funding to support enhanced program capacity within the Temporary Resident program, and giving the Minister of Citizenship and Immigration Canada (the “Minister“) the ability to set fees in a timely and efficient manner.  (Budget 2013 actually refers to the Minister of Citizenship and Immigration Canada as the Minister of Citizenship, Immigration and Multiculturalism.  I’m not sure if this means that the Department is about to change its name or if it is a typo.)
  • Providing $44-million in funding over two years to improve the processing of Citizenship applications, and allowing the Minister to set fees in a timely and efficient manner. (This is fantastic.  Processing times have ballooned to more than four years in many cases.)
  • Amend the Immigration and Refugee Protection Regulations to restrict the identification of non-official languages as job requirements when hiring through the Temporary Foreign Worker process.  (Not sure about this.. in a global economy some positions require fluency in languages other than English or French.) 
  • Introduce processing fees for Labour Market Opinion applications. (I’ve never understood why this was free.  In 2012 Service Canada processed 112,897 LMO applications for free.  An application fee of say $100 would have saved taxpayers over $10-million.) 
  • Increase the recruitment efforts that employers must make to hire Canadians before they will be eligible to apply for temporary foreign workers (presumably this means Labour Market Opinions), including increasing the length and reach of advertising requirements.
  • Assist employers who employ foreign workers to find ways to ensure that they have a plan to transition to a Canadian workforce over time. (Does making those foreign workers permanent residents count?)
  • Affirming that the Federal Skilled Worker Program will reopen this year with an updated points system that gives more weight to language proficiency and youth. 
  • Affirming that the Government will launch the new Start-Up Visa this year.
  • Confirming the Government’s intention to create an “Expression of Interest” immigration management system which will allow employers, provinces, and territories to select skilled immigrants from a pool of applicants.
  • Introduce an Immigrant Investor pilot program (no details announced).
  • Enhancing Canada’s capability to share immigration information with the United States.
  • Announcing that the new Electronic Travel Authorization system for visa-exempt foreign nationals will exclude U.S. citizens.
  • Develop an Interactive Advanced Passenger Information System to make “board/no board” decisions on all travellings flying to Canada prior to departure.
  • Establishing and coordinating entry and exit information systems with the United States, including a system where the record of land entry into one country can be utilized to establish a record of exit from the other. (The Government should also invest in installing machines at airports which can scan permanent residents’ passports so that there is an effective way of tracking time in Canada.  It never ceases to amaze me that Canada requires permanent residents to spend two-years out of five in Canada, and we don’t have a reliable way of tracking this. )

Budget 2013 can be viewed in its entirety here:

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Decline in Chinese Immigration to British Columbia : 渥京改政策 省推薦名額增

On Tuesday, June 29th, I was quoted in Ming Pao, Vancouver’s largest Chinese daily newspaper.

另一本地移民律師辛湉王(Steven Meurrens)則認為,技術移民及新推出的加拿大經驗類別(Canadian Experience)移民均甚多限制,有意申請人士最好另走他途,他認為PNP仍是移民最快增長點,但許多人對PNP仍認識不夠。

辛湉王 續稱,雖然近日投資移民的投資額及資產額都提高了一倍,但聯邦及省府均有充分信心,認為投資移民金額提高一倍不會影響申請人數,這是政府迅速增加收入的有 效途徑。

My comments were a response to recent Chinese immigration trends to British Columbia.

The interviewer wanted to know my response to the following statistics compiled by BC Stats:


Family Refugee FSWP PNP LIC Entrepreneur Investor Other Total
2009 2,269 59 1,702 872 73 101 3,977 322 9,375
2008 1,957 43 3,235 654 32 120 3,712 161 9,914
2007 2,387 90 2,872 369 6 222 2,162 151 8,259
2006 2,412 147 4,795 229 8 259 2,894 186 10,930
2005 2,065 210 7,749 52 3 209 3,306 94 13,688

It is clear that in the 2005 to 2009 period there has been a decline in PRC immigrants to British Columbia. This certainly runs counter to popular myth.

Second, that decline can be largely explained in the near collapse of immigrants under the Federal Skilled Worker Program (“FSWP“).  This decline has occurred across Canada, and is not limited to China.

Third, there has been a huge increase in the amount of immigrants under the Provincial Nominee Program.

I was also asked whether I thought that there was a deliberate effort on the part of Citizenship and Immigration Canada to keep Chinese people out. I think that the answer is clear that except for the FSWP the amount of Chinese immigrants in the other categories remain steady.  Some have speculated that this is due to Chinese people failing to meet the language requirements. In my opinion, if this were the case, then there would have ALWAYS been a low acceptance rate. Surely the amount of Chinese people that are proficient in English is equal to, if not higher than, the amount that could speak English in 2005.

The FSWP has long been in decline. The recent reduction of the amount of eligible occupations and the placing of a cap on these occupations are all signs that this will continue.

Prospective immigrants should thus seriously consider the Provincial Nominee Program.

Legislating Away the Immigration Backlog

On March 7, 2012, Jason Kenney delivered a speech to the Economic Club of Canada which has generated considerable attention.  He implied that the Government of Canada was considering legislating an end to Canada’s immigration backlog.

His statements were:

New Zealandlegislated an end to its backlog in 2003 and put in place a system where prospective applicants can be selected from a pool made up of all persons who have applied. Rather than wasting time and energy processing old applications, their resources can now be put towards actively matching the best qualified applicants to current jobs and economic needs.

Now, in recent months, Prime Minister Harper has spoken about doing more in the economy of the future than just passively accepting applications. He has talked about the need to actively recruit people to come to Canadato fill specific skill shortages.

There are exciting possibilities before us when it comes to the future of immigration toCanada. But of course, the first step is to eliminate this huge unfair backlog as soon as we can. Again, we’re open to creative suggestions and we will continue to consult with Canadians about the best way forward in immigration reform.

Canada’s immigration backlog is not small.  According to a report by the Standing Committee on Citizenship and Immigration titled Cutting the Queue: Reducing Canada’s Immigration Backlogs and Wait Times, as of July 1, 2011, the backlog was:



Number of People

Federal Skilled Workers 482,117
QuebecSkilled Workers 33,167
Federal Business (Investors and Entrepreneurs) 94,271
QuebecBusiness 10,518
Provincial/Territorial Nominees 39,076
Canadian Experience Class 6,002
Live-in Caregiver 15,416
Spouses, Partners, and Children 42,238
Parents and Grandparents 168,530
Government-sponsored Refugees 9,917
Privately-sponsored refugees 23,212

This backlog translates into some very high processing times.  For example, as of writing, applicants from Asia to the Federal Skilled Worker Program face the following processing times.

Asia and Pacific

Visa Office

Processing Times IN MONTHS
(based on a complete application package)

Applications received BEFORE February 27, 2008

Applications received BETWEEN November 28, 2008 and June 25, 2010

Beijing – China



Colombo – Sri Lanka



Hong Kong – China



Islamabad – Pakistan



Kuala Lumpur – Malaysia



Manila – Philippines



New Delhi – India



Seoul – South Korea



Singapore – Singapore



Sydney – Australia



Tokyo – Japan



The Federal Skilled Worker Program is based on the idea of attracting people with certain skills thatCanadadeems desirable.  What it has deemed desirable has changed substantially over the years, and the employability of people who applied prior to 2008 is often viewed as questionable.

As noted by Jason Kenney, legislating away a backlog is not unprecedented.  In 2003, New Zealandintroduced the Immigration Amendment Act 2003 No 30.  Amongst other things, it provided for the following:

  • That all applications for residence visas or permits made before 20 November 2002 that had not yet been decided were treated as being lapsed except in specified circumstances.  Some of the specified reasons included crossing a points threshold or having a job offer.
  • That the affect of an application lapsing was not no further processing of the application would occur.
  • That the government would refund any application fees paid.
  • That except for the application fee there would be no refund for mailing fees, the cost of obtaining documents, or any other costs.

In New Zealand, only about 20,000 applications, or 46,000 people, were affected.

Depending on how Jason Kenney proceeds, the scale of what Canada would do could be over 10 times greater.

Stay tuned.


Canada’s Ageing Demographics Compared to Other Western Nations

In today’s Daily Reckoning, Dan Denning analyzes the age demographics of numerous Western countries to determine the attractiveness of government treasuries. He summarizes the relationship between aging countries and government finances as follows:

Through either low immigration or low birth rates, or a combination of both, aging countries face some grim demographic math. Pension (private and public) pensions are likely to increase even as the tax base shrinks. Taxes go up on younger people. But government borrowing probably increases too, unless benefits get cut. If the borrowing is not from domestic savings (where it would then NOT go to private enterprise) it must be done on global markets at whatever the market price for money is.

Mr. Denning presents numerous US Census Bureau charts showing population tendencies for certain Western countries (and Iran).

I have reproduced some of these to analyze how Canada compares to other Western countries.

The charts show that the anglophone nations tend to not have as noticeable an aging pattern as other developed nations (in this case Italy and Japan).  This suggests that our pension “crisis” will not be nearly as severe as what will be experienced in other Western nations. These nations have traditionally not been as receptive to immigration as have the anglophone nations, and as such their ability to adopt policies to mitigate the effects of an aging population will likely be limited.

Amongst anglophone nations, however, Canada’s low fertility rate – currently 1.6 – results in their being fewer children than in the United States (with a fertility rate of 2.1), Australia (1.8), and the United Kingdom (1.9).

Accordingly, if Canada is to maintain a comparable population demographic to other anglophone nations, it is going to have to rely on immigration.  I do not see any other alternative. After all, these numbers are extremely difficult to change, and to a certain degree are “locked in”. The number of 10-year olds in Canada in 2020 will be roughly the number of people born in 2010.  The only thing that will make it higher is immigration.

So what do you think? Does Canada have an aging issue compared to other anglophone nations? If yes, should we care? If yes, should increased immigration be the solution?