[Editor’s Note: The following appeared in the September 2012 version of The Canadian Immigrant. In drafting a blog post about a similar topic I realized that I had never posted the article below to my blog. I am therefore posting this today. The title in The Canadian Immigrant article was “What Applicants Should Look for In New Immigration Rules.“]
People who follow Canada’s immigration system have undoubtedly had trouble keeping up with the rapid changes that Citizenship and Immigration Canada has introduced in the past several months. From the termination of 300,000 federal skilled worker applications to the proposed “Start-up Visa,” the announcements have been fast and furious, and each one has been debated extensively.
In discussing each individual change, however, the public discourse has largely missed the shift in the forest by focusing on each tree. There is a fundamental transformation underway in Canada’s immigration system, and it is important that anyone submitting a visa application understand this before applying.
First in, first processed
Traditionally, Canada’s immigration system operated on a first-come first-processed basis. Our immigration legislation created programs under which eligible applicants could apply. People submitted applications under various programs with the understanding that while they would have to wait in the queue behind those who applied before them, they could be certain that the Canadian government would process their applications before anyone who applied after them. Importantly, they could also be certain that their application would actually be processed according to the criteria that existed when they applied.
Enter the ministerial instructions
In 2008, however, the Government of Canada began abandoning the first-come first-processed system by introducing what are now commonly referred to as ministerial instructions. Ministerial instructions are directives by the minister of Citizenship and Immigration Canada (CIC).Read more ›
On December 27, 2013, Citizenship and Immigration Canada (“CIC“) and the Ministry of Economic and Social Development (“Service Canada“) released Ministerial Instructions regarding the revocation of work permits and Labour Market Opinions (“LMOs“), now called Labour Market Impact Assessments (“LMIAs“). The Ministerial Instructions will allow the Government of Canada to rapidly respond to economic developments by immediately reducing the intake of foreign workers, will increase program integrity, and create uncertainty for Canadian businesses.
These are the first Ministerial Instructions to be issued by Service Canada since the Government of Canada amended s. 30 of the Immigration and Refugee Protection Act (“IRPA“) in the first 2013 Budget Implementation Act. Section 30 of IRPA now reads:
Work and study in Canada
30. (1) A foreign national may not work or study in Canada unless authorized to do so under this Act.
(1.1) An officer may, on application, authorize a foreign national to work or study in Canada if the foreign national meets the conditions set out in the regulations.
(1.2) Despite subsection (1.1), the officer shall refuse to authorize the foreign national to work in Canada if, in the officer’s opinion, public policy considerations that are specified in the instructions given by the Minister justify such a refusal.
Concurrence of second officer
(1.3) In applying subsection (1.2), any refusal to give authorization to work in Canada requires the concurrence of a second officer.
(1.4) The instructions referred to in subsection (1.2) shall prescribe public policy considerations that aim to protect foreign nationals who are at risk of being subjected to humiliating or degrading treatment, including sexual exploitation.
Revocation of work permit
(1.41) An officer may revoke a work permit if,Read more ›
As previously discussed here, Citizenship and Immigration Canada (“CIC“) will be introducing a new Federal Skilled Trades Class (“FSTC”), which will facilitate the immigration of certain skilled tradespersons in Canada. The Government of Canada originally “announced” the creation of the FSTC in August through the publication of regulatory changes, however, CIC today released new information which will be relevant to prospective applicants.
The FSTC will be open to individuals with experience in the following National Occupation Classification (“NOC“) B occupational areas:
- Industrial, Electrical and Construction Trades;
- Maintenance and Equipment Operation Trades;
- Supervisors and Technical Occupations in Natural Resources, Agriculture and Related Production;
- Processing, Manufacturing and Utilities Supervisors and Central Control Operators;
- Chefs and Cooks; and
- Bakers and Butchers.
Applicants to the FSTC will be required to meet the following four minimum requirements:
- Be working in Canada, or possess a LMO-supported offer of employment from up to two employers in Canada of at least one year duration, or possess a Certificate of Qualification from a provincial or territorial Apprenticeship Authority;
- Meet the same minimum language threshold as required by the concurrently to be introduced new Federal Skilled Worker Class, namely a 7.0 on every language ability;
- Have twenty-four months of work experience (after qualification/certification in the country where the work was performed, where applicable) in the same skilled trade as which they are applying under in the last five years; and
- Have qualifications that satisfy employment requirements as described by the NOC, except for certification and licensing requirements.
The FSTC will be capped at 3,000 applications in its first year.
Individuals who are keenly anticipating the launch of the new Federal Skilled Worker Program (“FSWP“) should note that when the Government of Canada in August announced the creation of the FSTC,Read more ›
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,Read more ›