Immigration Policy after the 2015 Election

Meurrens LawImmigration Trends

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). Through what are known as ministerial instructions, CIC and ESDC can create immigration programs, revoke them, determine the order in which applications are processed, introduce application intake caps, and even refuse to process applications in existing programs, all with minimal parliamentary oversight.

Refugee lawyers who practiced before the Conservatives assumed office in 2006 would find the current refugee determination system, and the nature of their business, almost unrecognizable. Previously, refugee claims took an average of over 1,000 days to process, and claimants from all countries were treated equally. Now those claims take 30 to 45 days for claimants from countries the government has deemed “safe” and 216 days for other claimants. This, as well as the elimination of access to work permits (and briefly health care) for refugees, has caused the number of asylum seekers in Canada to plummet. During the same period, the Canada Border Services Agency (CBSA) has aggressively pursued a policy of initiating cessation applications against protected persons if they allegedly re-avail themselves of the protection of their country of origin. Indeed, in 2013 it emerged that the CBSA had a target of 875 such applications, which can lead to loss of permanent resident status and removal, per year.

The Conservatives’ attempt to strip certain people of their status in Canada does not end with refugees. Between 1977 and 2010, only 63 people had their Canadian citizenship revoked. In 2012, the Government of Canada announced that over 11,000 investigations that could lead to revocation for misrepresentation were underway. In 2014, the Conservatives passed legislation allowing for the revocation of Canadian citizenship among citizens convicted of certain serious offences, such as terrorism and treason, if doing so would not render them stateless. This threat extends, for the first time, to those born in Canada. As well, in 2009, in response to the government’s 2006 evacuation of Canadian citizens living in Lebanon who seemingly had minimal ties to Canada, the Conservatives limited citizenship by descent to the first generation born abroad.

These are only the most significant changes. Supporters of Canada’s various political parties will likely form strong opinions on how they would like to see their respective party either maintain or change aspects of the above. But what will the parties actually do?

I am not going to attempt to distinguish what will happen in minority or majority governments. Whether a party has sufficient seats in Parliament to pass its legislation without the assistance of other parties may not matter in most immigration questions. The Conservatives actually initiated many of their changes while governing as a minority and, as a result of the ability of CIC and ESDC to bypass Parliament through the issuance of ministerial instructions (which no party is likely to repeal), any government will be able to significantly change Canada’s immigration system.

The Conservatives Continue to Govern

Given the comprehensiveness of the Conservatives’ overhaul so far, one could be forgiven for thinking that a continued Conservative government would result in the continuance of the status quo. However, they have yet to fully implement many of their reforms, and once their recently enacted legislation and ministerial instructions start fully baring their teeth, Canada’s immigration system will look even more different from how it looked a decade ago.

These “teeth” include fining employers who breach the requirements of Canada’s foreign worker programs; requiring previously visa-exempt foreign nationals to obtain electronic permission to enter Canada; requiring all foreign nationals who do require visas to provide their biometric information to CIC; completely removing humanitarian and compassionate consideration for permanent residents convicted of serious crimes; increasing the revocation of citizenship of Canadian citizens convicted of even more serious offences; and cracking down on international students who are not working toward completing their studies.

Efficiency in admitting and removing foreign nationals will continue to be paramount. The economic streams will likely continue to be prioritized over the family reunification streams.

From a legacy perspective, another Harper government is likely to continue to make new free trade agreements a priority. Such agreements are significant from an immigration perspective, as they almost always provide for the temporary entry of businesspeople and foreign workers. Indeed, each new free trade agreement that Prime Minister Harper signs will restrict a future government’s ability to reduce the number of foreign workers in Canada.

There are two other areas in which the Conservatives have hinted at making further changes, although they have not yet acted on them. The first is abolishing birthright citizenship, which provides that anyone born in Canada is automatically a Canadian citizen. The second could be to address an apparent growing frustration with Quebec’s Immigrant Investor Program, even though the corresponding federal program has been closed. There is little evidence that the Conservatives will actually act on either of these issues, but if they do, it would be momentous.

The NDP Forms Their First Government

In previous election campaigns the NDP has generally promised that it will maintain economic immigration levels and facilitate family reunification. Indeed, during the 2011 federal election the NDP platform contained a promise to introduce a Once in a Lifetime Act that would allow every Canadian to sponsor one relative from overseas. If enacted, this could conceivably double or triple Canada’s population in a very short time.

If the NDP forms government, it will either abandon some of the commitments that it makes during this election campaign, accept that its programs will have massive processing times that will make current processing times seem fast, introduce a lottery or application cap system, or be prepared to explain to the Canadian public why Canada’s population should increase so dramatically.

Although Thomas Mulcair is likely to campaign to the contrary, Canada’s economic immigration programs under an NDP government will likely continue to be a system where individuals arrive in Canada first as foreign workers and then transition to permanent residency. An NDP government will, however, almost certainly create a pathway to permanent residency for all foreign workers.

An NDP government will also likely re-emphasize the importance of humanitarian and compassionate considerations in temporary and permanent residency programs, stop initiating cessation and citizenship revocation applications, and re-allocate resources towards the family reunification streams.

While in opposition, the NDP, and especially its British Columbia Member of Parliament Don Davies, has consistently criticized CIC’s practice of issuing minimal reasons in visa refusal letters. CIC got away with doing this under both the Liberals and the Conservatives, and if the NDP were to require immigration officers to provide the full reasons for refusal, it would be a subtle, simple change that would dramatically increase the fairness of Canada’s immigration system.

Davies has also called on the Government of Canada to block former US vice-president Dick Cheney from entering Canada. If one had to predict a bold move on Canadian immigration policy the NDP could make to satisfy its base that doesn’t involve increasing immigration levels, it might be to announce that many individuals from the former Bush Administration will no longer be welcome in Canada.

The Liberals Assume Office

During the 2011 election, the Toronto Star described the Liberal Party of Canada’s lack of an immigration policy vision as “baffling.” The Liberal immigration critic at the time was Justin Trudeau. Trudeau is now the Leader of the Opposition, and, despite the best efforts of the current Liberal immigration critic, John McCallum, as of writing there is a similar lack of clarity leading into this election.

This is not to say that there have not been any specific announcements. Trudeau has stated that his party, if elected, will increase the number of people admitted under the Parent and Grandparent Sponsorship Programs. McCallum has stated that the Liberals would repeal the recent changes to Canada’s Citizenship Act removing the 50 percent credit for time spent in Canada that had counted towards the citizenship residency requirements for former international students. He has also said that the Liberals would repeal the requirement that new citizens sign a declaration that they intend to reside in Canada and they would re-introduce the Live-In Caregiver Program, with an increased role for caregiver agencies.

None of this is particularly visionary. However, it may suggest that the Liberals won’t make many substantive legislative changes. Indeed, if it is true that the Liberals are essentially a party of de facto public servants who eschew an ideological agenda in favour of public policy rooted in facts and analysis, then they are unlikely as government to completely undo the Conservative legislative changes of the past decade, which, for the most part, appear to be popular among the public and civil service.

This is not to say that Canada’s immigration system would look the same under the Liberals as it would under the Conservatives. It is difficult to envision the Liberals under Trudeau introducing minimum annual targets for how many refugees should be stripped of their status, or detaining children who arrive as part of mass irregular arrivals. Conversely, it is easy to see them unwinding Conservative changes that prohibit the consideration of humanitarian and compassionate considerations in many application streams and removing the discretion of immigration officers to defer removal.

Perhaps the most significant difference between a Liberal and an NDP government and the current Conservative one will be a definitive and important change in tone. As long as the next government does not try to deny health care to refugee claimants or prohibit Muslim women from wearing the niqab to citizenship ceremonies, the consequences of the upcoming election will seem like a very big shift indeed.