The Federal Skilled Workers Program (the “
FSWP“) has traditionally been one of Canada’s most popular immigration programs.
To be eligible for the FSWP, applicants must meet minimum eligibility criteria, and also get a minimum of 67 out of 100 points in a selection grid. Points are available as follows:
| Selection Factor |
Available Points |
| Education |
25 |
| Proficiency in English and/or French |
24 |
| Experience |
21 |
| Age |
10 |
| Arranged employment in Canada |
10 |
| Adaptability |
10 |
|
|
|
|
Under education, points are calculated as follows:
| Education |
Maximum
25 points |
| Master’s degree or PhD and at least 17 years of full-time or full-time equivalent study. |
25 |
| Two or more university degrees at the bachelor’s level and at least 15 years of full-time or full-time equivalent study. |
22 |
| Three-year diploma, trade certificate or apprenticeship and at least 15 years of full-time or full-time equivalent study. |
22 |
| University degree of two years or more at the bachelor’s level and at least 14 years of full-time or full-time equivalent study. |
20 |
| Two-year diploma, trade certificate or apprenticeship and at least 14 years of full-time or full-time equivalent study. |
20 |
| One-year university degree at the bachelor’s level and at least 13 years of full-time or full-time equivalent study. |
15 |
| One-year diploma, trade certificate or apprenticeship and at least 13 years of full-time or full-time equivalent study. |
15 |
| One-year diploma, trade certificate or apprenticeship and at least 12 years of full-time or full-time equivalent study. |
12 |
| Completed high school. |
5 |
Many people often ask why they would require assistance to help them determine the number of points available to them for education under the FSWP given the above chart. It is not, however, always clear. Determining education points under the FSWP is one of the more hotly contested areas of immigration law.
Consider the following issues involving the calculation of education credentials that have recently gone to court.
How are Points Awarded Where an Individual Studies but does Not Obtain a Degree?
Guzman completes high school, which takes 10 years. He completes a one-year diploma in automotive mechanics. He also attends university for three years, but does not complete a diploma or certificate.
The issue that arises in the above example is whether to count Guzman’s three years of university as contributing to the number of years that he studied full time. If he gets to include it, then he is eligible for 15 points. If not, then he only gets 12.
Section 78(1) of the Regulations defines “full-time studies” as being “in relation to a program of study leading to an educational credential”.
Accordingly, years of full time study or full-time equivalent study that do not lead to the obtainment of an educational credential
do not count when determining the number of years of full-time or full-time equivalent study under the Federal Skilled Worker Program.
Cases:
De Guzman v. Canada (Citizenship and Immigration), 2010 FC 1113;
Roberts v. Minister of Citizenship and Immigration, 2009 FC 518
How are Points Awarded Where a Credential is Obtained, but the Applicant also Studied in Programs that did Not Lead to the Educational Credential Being Assessed? or If an Individual Has Two Masters Degrees, how are Points Assessed?
An individual has a BA in Political Science, a MA in Political Science, an MBA, and a Diploma in Fashion Merchandising. In total, the individual completed 18 years of full-time study.
Whether or not an individual should receive points for educational credentials that were received but did not lead to the “ultimate credential” is currently the subject of a certified question for which a Federal Court decision is pending. Jurisprudence on the matter currently varies widely. The question is:
In assessing points for education under section 78 of the Immigration and Refugee Protection Regulations, does the visa officer award points for years of full-time or full-time equivalent studies that did not contribute to obtaining the educational credential being assessed?
How the Federal Court of Appeal decides will be based on its interpretation of s. 78(3) of the Regulations. Section 78(3) states that:
Multiple educational achievements
(3) For the purposes of subsection (2), points
(a) shall not be awarded cumulatively on the basis of more than one single educational credential; and
(b) shall be awarded
(i) for the purposes of paragraphs (2)(a) to (d), subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of the single educational credential that results in the highest number of points, and
(ii) for the purposes of subparagraph (2)(e)(ii), on the basis of the combined educational credentials referred to in that paragraph.
In
Kabir v. Canada, 2010 FC 995, the applicant argued that he should have been awarded 25 points for the above-mentioned education experience. The Officer disagreed, and awarded 22 points. No points were awarded for the second degree at the Master’s level nor for the Diploma in Fashion Merchandising. The officer excluded it because the diploma was not in the line of progression toward the highest educational credential. The Federal Court agreed with the Officer’s decision, noting that s. 78(3)(a) provides that points shall not be awarded cumulatively on the basis of more than one single educational credential.
In
Hasan v. Canada (Citizenship and Immigration), 2010 FC 1206, the Court took a different approach. It stated that the purpose of s. 78 was directed at the assessment of educational accomplishment. It noted that s. 78(3)(b)(i) provides that the analysis is supposed to consider the single educational credential that results in the highest number of points. In order to give effect to that provision, it would be necessary to look at assess an applicant’s complete academic history.
As is evident, there is much uncertainty in the law about this, and those Federal Skilled Worker applicants who are aware of this issue are likely keenly awaiting an answer from the Federal Court of Appeal.
When Evaluating “Full-Time Equivalent” studies, does one assess only the period of time that is needed to achieve a particular educational credential on a full-time basis, or does one also consider the nature and quantity of instruction that an individual receives?
Shahid successfully completes university, but as an external candidate. An external candidate only has to write a scheduled exam, complete the appropriate form, and pay the required fees. The candidate can then prepare through independent studies or with the assistance of a private tutor.
In determining whether to count as “full-time equivalent” people who challenge exams, it is necessary to note the definition of “studies” in the
Regulations. The Regulations state:
“studies” means studies undertaken at a university or college, or any course of academic, professional or vocational training.
“Full-time” meanwhile, is defined as:
“full-time” means, in relation to a program of study leading to an educational credential, at least 15 hours of instruction per week during the academic year, including any period of training in the workplace that forms part of the course of instruction.
Finally, “full-time equivalent” means:
“full-time equivalent” means, in respect of part-time or accelerated studies, the period that would have been required to complete those studies on a full-time basis.
Taken together, the Federal Court of Appeal has stressed that “studies” require that an individual actually complete studies
at a university. It has noted that the “full-time equivalent” provisions are not intended to apply to self-study programs. Rather, they apply to people who either study part time, or take an accelerated program.
The Federal Court of Appeal has thus held that the definition of “full-time equivalent” applies when there is a discrepancy between the time in which a particular “educational credential” (as defined) is obtained by an individual and the time required to obtain the same credential on a full-time basis by reason of having followed part-time or accelerated studies at an educational or training institution recognized by the authorities. The definition requires a consideration of both the nature and quantity of instruction received by the individual:
Shahid v. Canada, 2011 FCA 40.
Is a second Master’s degree the “single educational credential that results in the highest number of points”?
Phil studied for 15 years to obtain his Masters of Arts. He then completed a two-year MBA.
The Federal Court has recently certified the following question:
“For the purposes of section 78(3)(b)(i) of the Immigration and Refugee Protection Regulations, is a visa officer to consider a second Masters’ degree under section 78(2)(f) as the “single educational credential that results in the highest number of points”?”
As soon as the Federal Court of Appeal answers, we will post it here.
How are points to be awarded when an individual attends secondary school in a school system where secondary school is one year shorter than in Canada?
YM attended secondary school in Scotland. High school in Scotland only takes 4 years, as opposed to the five that it takes in Canada.
In
Young Marr v. Canada (2011 FC 367), the Federal Court noted that s. 78(4) of the Regulations require that where there are special circumstances, an officer can award the number of points for achieving an educational credential, even if the number of years studied to achieve that credential falls short of the general points grid.
