On October 19, 2015, Canada will have its 42nd general election. While only Canadian citizens may vote, permanent residents, foreign workers, international students, visitors, and even people outside Canada through the use of social media and volunteering for political campaigns will be able to influence the development of Canadian policy and discourse like never before.
As with any election, all of Canada’s political parties will promise the moon, including on immigration and refugee matters. In order to analyze their commitments critically, it is important to understand that those creating immigration programs are constrained by an impossible trinity. Put simply, it is impossible for an immigration program to have all three of the following at the same time:
- Government control over immigration numbers
- Fast processing times
- Guaranteed processing of eligible applications
Most sovereign states want control over the number of people that they admit as immigrants each year. In Canada, section 94(2)(b) of theImmigration and Refugee Protection Act codifies this objective by requiring that the Minister of Citizenship and Immigration Canada (“CIC”) report to Canada’s Parliament annually on the number of individuals projected to become permanent residents during the upcoming year. Predictability and certainty in immigration numbers allows the government to accurately budget for and allocate resources.
Fast processing times ensure that when an application is finalized the circumstances are the same as when the person applied. Fast processing times reduce the estrangement of families, provide certainty to those applying on humanitarian & compassionate grounds or for protection, and address labour shortages. Indeed, in many policy circles, the current buzzword is a “just-in-time” (not to be confused with a “Justin [Trudeau] time”) immigration system wherein the government immediately facilitates entry for legitimate private needs.Read more ›
Each day thousands of people cross Canadian ports of entry. There, the Canada Border Services Agency (“CBSA“) will interview them to determine if they are admissible to Canada. If CBSA has concerns about whether someone is inadmissible to Canada, or determines that they are in fact inadmissible to Canada, then the CBSA can either further (or pause) the examination and require that the foreign national appear back at the port of entry a later date for the examination to continue, ask the person to voluntarily withdraw their attempt to enter Canada, refer the matter to the Immigration Division, or issue the individual a removal order.
Section 228(1) of the Immigration and Refugee Protection Regulations (“IRPR“) stipulates when CBSA can issue the removal order directly instead of referring the matter to the Immigration Division. It states:
228. (1) For the purposes of [determining someone inadmissible to Canada], …, if a report in respect of a foreign national does not include any grounds of inadmissibility other than those set out in the following circumstances, the report shall not be referred to the Immigration Division and any removal order made shall be
(a) if the foreign national is inadmissible under paragraph 36(1)(a) or (2)(a) of the [Immigration and Refugee Protection Act, (the “Act“)] on grounds of serious criminality or criminality, a deportation order;
(b) if the foreign national is inadmissible under paragraph 40(1)(c) of the Act on grounds of misrepresentation, a deportation order;
(b.1) if the foreign national is inadmissible under subsection 40.1(1) of the Act on grounds of the cessation of refugee protection, a departure order;
(c) if the foreign national is inadmissible under section 41 of the Act on grounds of
(i) failing to appear for further examination or an admissibility hearing under Part 1 of the Act,Read more ›
The following is an article that I wrote for the September 2015 edition of Policy Options.
The Conservatives have yet to fully implement many of their reforms… Canada’s immigration system will look very different from the way it looked a decade ago.
The 42nd Canadian federal election will likely be a pivotal event for Canadian immigration policy. The Conservative Party of Canada has comprehensively overhauled Canada’s immigration system. The upcoming election will likely determine whether these changes become permanent or are undone or whether immigration policies go in a completely different direction.
In order to understand the possible consequences of the upcoming election on immigration policy we have to understand how much things have changed. Indeed, it is not uncommon for immigration practitioners to jokingly refer to the Immigration and Refugee Protection Act as the “Jason Kenney Immigration and Refugee Protection Act.”
Arguably the most significant change to the immigration system was its transformation from a system where people were immediately admitted to Canada from overseas as permanent residents into one where prospective immigrants had to “prove” that they could establish themselves in Canada, economically, by initially being temporary foreign workers and then transitioning to permanent residency. While in the long run this change should ensure that immigrants are gainfully employed and should end the recognition-of-foreign-credentials debacle, it has also contributed to a significant and controversial increase in the number of temporary foreign workers in Canada, many of whom work in what the government deems “lower-skilled” positions and are ineligible for permanent residency.
An equally important change to Canada’s immigration system was the transferring of much of the responsibility for creating and managing Canada’s immigration programs from Parliament directly to Citizenship and Immigration Canada (CIC) and what is now Economic and Social Development Canada (ESDC).Read more ›
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.
Read more ›
On June 5, 2015, the appellants in Elham Fathy Elsayed Ismail et al v. Minister of Citizenship and Immigration, A-203-15, discontinued their appeal of the Federal Court’s decision in Ismail v. Canada (Citizenship and Immigration), 2015 FC 338 (“Ismail“). This is unfortunate because the question that Justice de Montigny certified needs to be answered. That question was:
For the purposes of determining its jurisdiction to hear an appeal pursuant to subsection 63(2) of the IRPA, shall the validity of the permanent resident visa be assessed by the IAD at the time of arrival in Canada or at the time the exclusion order is made?
The question is important because it addresses a growing tendency of the Canada Border Services Agency (“CBSA“) to defer the examination of foreign nationals possessing permanent resident visas seeking to become permanent residents where CBSA suspects that the foreign nationals may not be admissible to Canada, rather than preparing an inadmissibility report. During the deferral period, the CBSA will then contact Citizenship and Immigration Canada (“CIC”), who, often without providing the prospective permanent resident with any notice, cancel the permanent resident visa. CBSA can then deny entry to Canada on the basis that the person does not have a valid permanent resident visa rather than for the underlying possible inadmissibility. Many immigration practitioners have suspected that the reason for this is to prevent the prospective permanent resident from having a right of appeal to the Immigration Appeal Division (the “IAD“).
The Federal Court’s decision in Ismail in my opinion raised more questions than it answered, and it is unfortunate that the question will remain murky until the question is again certified in the future.Read more ›
Last updated on December 26th, 2018
Section 110(4) of the Immigration and Refugee Protection Act (the “IRPA“) provides that at the Refugee Appeal Division (the “RAD“) a person may only present evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have expected in the circumstances to have presented, at the time of the rejection.
Specifically, it states:
Evidence that may be presented
(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.
(5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister.
(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3)
(a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal;
(b) that is central to the decision with respect to the refugee protection claim; and
(c) that, if accepted, would justify allowing or rejecting the refugee protection claim.
2001, c. 27, s. 110; 2010, c. 8, s. 13; 2012, c. 17, ss. 36, 84.Read more ›
With four months remaining in the year, both British Columbia’s and Alberta’s provincial nomination programs have announced that they are full.
The ability of both provinces to meet the demands of their employers to retain foreign national employees on a permanent basis is clearly being cut off at the knees by federal quotas that appear to bare no resemblance to what is needed.Read more ›