Nirman's Law Professional Corporation

As an immigration law practitioner, I represent diverse communities, but the deferential treatment given by the Canadian government to the presentrefugee claimantswho came on the MV Sun Sea is bizarre.

In Canada’s immigration process, our clients have to fight every step of the way to obtain proper status and, if needed, to appeals when a claim is denied. It can take several years to exhaust the lengthy process from the point of first contact with Citizenship and Immigration Canada.

The federal government knew if the ship was allowed to dock that the migrants would jump the queue. The migrants also were aware of the relative laxity of the immigration system; indeed, in the history of Canada, few persons have been deported.

This particular group of claimants seeks to exploit a lacuna in Canadian immigration law, at the expense of equally vulnerable and worthy migrants who (perhaps unadvisedly) follow the rules, and wait years abroad to find out whether or not they may legally immigrate to Canada one by one.

I am acquainted with several refugee claimants who have not seen their children for a decade, while they patiently wait outside Canada for decisions on their files.

I sympathize with genuine refugees in need of immediate shelter and protection, but attempts such as this to overwhelm with the immediacy of sheer numbers (many of whom would otherwise be directed to make an ordinary application) do a real injustice to those who would diligently obey the rules.

Our need to maintain a fair and efficient immigration policy should be paramount, and it is the obligation of the ruling Canadian government to enforce law to curb this menace.

As published in the Ottawa Citizen, Aug. 24, 2010

On June 26, 2010, Ministerial Instructions regarding the administration of the Immigration and Refugee Protection Act were issued to restrict the processing of Federal Skilled Worker applications in 29 occupational categories.

Under this new policy, a maximum of 20,000 Federal Skilled Worker applications will be considered for processing between June 26, 2010 and June 26, 2011, and also a maximum of 1,000 applications for any one of the 29 categories. There will be no preference between categories with regards to this cap; only the first 20,000 applications received (that are also not in excess of 1,000 for their specified category) will be accepted for the coming year.

All are managerial, professional or skilled trades positions. They can further be broken down by subject matter: 11 are in the medical service sector, 12 are in various medium and heavy industries, 3 are in food services, and the remainder are in specific technical professions. All categories will have equal priority in reaching the annual cap on applications, and therefore overlap between categories is less consequential in making an application than previously.

Accordingly, the most significant factor for skilled worker applicants will likely be the availability of jobs in these categories; which sector has the greatest number of opportunities in Ontario?

In the most recent data made available by Employment Ontario for June 2010, several sectors stand out as demonstrating steady growth over the past five years.[1] (No sector has experienced a boom in recent history, only moderate, steady growth at best.) These include Public Administration, Health Care and Social Assistance, Professional, Scientific and Technical Services, and Forestry, Fishing, Mining, Oil and Gas.

Conversely, other employment sectors show signs of recent healthy rebounding after recessionary downturns, such as Accommodation and Food Services, and Construction. The remaining categories show slight employment growth, except for Manufacturing, which remains on a severe downswing. Overall, long-term growth is most likely in the various service sectors; however, unfortunately, not all such service sectors overlap with the categories for which immigration is possible through the Federal Skilled Worker program.

No matter the industry, applicants for Federal Skilled Worker status in these categories must still demonstrate proficiency in an official language, and have either a valid offer of arranged employment in their field, or else at least one year of continuous, full-time work experience within the occupational category under which they have applied. These are the bare minimum requirements; applicants will be assessed under the skilled worker points grid, and must prove their capacity to be self-supporting.

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[1] Research and Planning Branch, Ministry of Training, Colleges and Universities. “Employment by Industry, Ontario.” Labour Market Information & Research, Vol. 10, No. 6. (Toronto: Queen’s Printer for Ontario, 2010)

On June 26, 2010, Citizenship and Immigration Canada announced in the Canada Gazette proposed changes to the Immigration and Refugee Protection Act that would impact the Canadian Immigrant Investor Program. The required net worth of individual applicants would double to $1.6m from $800,000, and the required investment amount would double from $400,000 to $800,000.

These changes have been made on the policy grounds of making Canada a more competitive player in the global investor immigration ‘market;’ according to CIC analysis, the current threshold – established in 1999 and not indexed to inflation – has resulted in Canada receiving a disproportionate amount of applications, compared to similar nations such as the United States, Australia, the UK, and New Zealand. The high rate of applications has in recent years created a backlog that now results in an approximately five-year waiting period for a final application decision, compared to 23-35 months only three years ago. The Government of Canada is not willing to increase funding levels merely to address this backlog, nor is CIC able to reallocate resources away from other immigration categories.

More problematically, CIC analysis suggests that a large number of recent applicants have a reasonably low net worth compared to that of applicants in the earliest years of the program, when indexed for inflation. From a policy perspective, the desired type of investor immigrant is being crowded out of the queue by those which have a higher chance of rejection, on a full evaluation of their potential benefit to Canada. Accordingly, the goal of this regulatory change is to discourage some undesirable candidates while speeding the process for desirable candidates. The Canadian banks who act as facilitators of the program, and the provinces and territories who partner with CIC are supportive, as the change is projected to increase the amount of funds available for their secondary investment.

The procedural speed to be gained under this proposed change will come from a two-tiered reallocation of existing CIIP resources. New applications with the increased criteria will be given a priority queue consisting of 1/3 of processing capacity, while the existing inventory of applications will receive the balance of attention, likely increasing their waiting times even further.

The Minister of Citizenship and Immigration has ordered an administrative pause for this program pending changes; applications received for the Canadian Immigrant Investor Program after June 26, 2010 will not be accepted, in order to prevent a surge in last-minute applications under the old thresholds.

The Quebec Minister of Immigration and Cultural Communities has not yet responded publicly in any way to these proposed changes. Once changes are enacted, Quebec would be required to amend its counterpart program’s requirements to match the new federal thresholds. However, until such changes occur or the Quebec Minister announces a similar pause, applications destined for the Quebec business immigration programs will continue to be accepted and processed normally.