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Proposed Changes to the Immigration Act

 by Andrew Z. Wlodyka

On the immigration front, the members of the Immigration Legislative Review Committee submitted a major report at the end of 1997 entitled "Not Just Numbers: A Canadian Framework for future Immigration" to the Honorable Lucienne Robillard, Minister of Citizenship and Immigration. The 168-page report contained 172 Recommendations. The members of the committee proposed significant changes to Canada's Immigration and Refugee System.
Interested parties were given the opportunity to respond to the LRAG report in hearings conducted across Canada. The Minister and her officials listened to the comments of Canadians from every walk of life. Her response was a report that was released in January of 1999. The White Paper called "Building on a Strong Foundation for the 21st Century" covered virtually every aspect of immigration law.

Some of the key highlights of the Minister's White Paper include

The White Paper raises profound moral and practical questions that will have to be considered seriously by Canadians and Parliament before the Minister's proposals are implemented. One is struck by the vagueness of the recommendations. This means that the public will not really know the direction that the government plans to take until the actual proposed legislation is tabled in Parliament.

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Investor Category

It is only with respect to the changes to the investor category that there has been some clarity in the proposed changes. Regulatory changes came into effect on April 1, 1999 and the result has been that the minimum amount of the investment required has been increased from $250,000 to $400,000 and the required personal net worth of the prospective immigrant has been increased from $500,000 to $800,000.

Under the new investor regulatory regime, a federal program replaced nine provincial funds. Under the federal program, the Department of Citizenship and Immigration was designated as a depository for all investments and it was charged with the responsibility to administer the program including the allocation of immigrant investment to provincial or territorial funds according to an allocation formula.

To secure his or her investment, the prospective immigrant would receive a provincial guarantee representing the portion of the investment that the provincial fund would receive pursuant to the allocation formula. There would be a zero rate of return on the investment to the immigrant investor.

The federal government plays no role in providing any sort of guarantee to the investor to secure the investment. Finally, the investment is locked in for five years beginning on the first day of the second month after the Citizenship and Immigration department informed the fund that the immigrant investor has landed in Canada.

The investor program in Quebec remains in effect. However, the minimum investment amount and the net worth of the prospective immigrant are the same as under the federal investor program.

Another significant change in the Investor Program was that as of April 1, 1999, the prospective immigrant who wished to invest in a Quebec-based immigrant fund could only do so by applying under the Quebec selection procedure. If the immigrant chose to apply under the federal selection procedure, he or she could only invest in the federal program.

At the time of writing of this article, it is still unclear how the federal immigration authorities and their provincial counterparts plan to market this revised investor program so as to compete with the Quebec investor program. Unless attractive incentives are offered to immigrant investors, I predict that the great majority of investor applicants will choose the more secure and better-understood Quebec investor program.

With respect to many of the other proposed changes, the main point that can be gleaned from the White Paper is that many of them are driven by the need to save money at the expense of access to justice for immigrants.

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Proposed Changes to the Family Class

Dealing first with the changes to the definition of the family class of immigrants, the Minister's White Paper proposes to increase the age of dependent children under this category to 22 years of age from the present 19 years of age. In order to be considered as dependents under this category, those children over 22 years of age would still need to prove that they were full-time students or otherwise substantially dependent on their parents for support.

Another key recommendation would lead to the changing the definition of spouse for immigration purposes to include common law and same sex couples. However, it would be up to the sponsor and their partner to establish that the relationship was genuine and not entered into primarily for immigration purposes. It is therefore likely that considerable litigation will be generated if the proposed change to the definition of spouse is enacted into law as couples refused under the new law seek to prove before the Immigration and Refugee Board that their relationship meets the required test under the new law.

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Proposed Changes to Selection of Skilled Workers

In the Minister's White Paper, it is proposed to change the way that skilled workers are selected by moving away from a selection model based on the skilled worker's intended occupation in Canada and by moving toward a selection model based on choosing skilled workers who possess sound and transferable skills, good education and experience, strong language skills in Canada's official languages and who at the same time are flexible, adaptable, motivated and knowledgeable about Canada. Unfortunately, the proposed change is vague and it is uncertain how objective selection factors will be integrated with subjective discretion on the part of the decision-maker.

However, the latest proposal by Canada Immigration concerning the skilled worker model that has been circulated for discussion among members of the Immigration Bar puts a strong emphasis on language skills and university education at the expense of secondary education with technical or vocational training.

The Department proposes to give fewer points to skilled workers who have permanent validated job offers in Canada. The proposal will require applicants to have recent experience in a high-skill occupation (management and skilled jobs in the A level such as accounting, human resource professionals, applied and natural sciences, professional occupations in health areas, professional occupations in the social sciences, education and government services or B level involving skilled administrative and business occupations, technical occupations in natural and applied sciences, technical and skilled occupations in health and paraprofessionals in law, social sciences and education). Under this proposal, people with blue-collar trade skills will have a very difficult time qualifying for immigration to Canada.

Language skills in one or both of the official languages of Canada will be crucial for success. The language skills will be tested through the use of standardized methods of assessment. This is being done very successfully under the Quebec skilled worker selection system. The visa officer will still have considerable discretion in the assessment of adaptability of applicants.

In my view, the proposed new selection system will still have a strong subjective component to it. The new model for selection of skilled workers will require new immigrants to establish that they have the required funds to support themselves after they arrive in Canada. Under the new selection system for skilled workers, the presence of relatives in Canada will be given less weight than is the case now. The presence of family will likely be assessed under adaptability as opposed to the granting of specific bonus points as is presently the case. It also likely that under the proposed changes, the Department will be able to control the overall flow of skilled immigrants to a greater extent than is the case now.

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Proposed Changes to Business Immigration

In the case of business immigrants, the Minster's White paper states that there is a need in Canada for entrepreneurs and investor immigrants. She proposes that there be more explicit definitions of significant business experience, educational and language skills without providing any specifics. The Minister identifies a need to have the prospective business immigrant establish the source of his or her funds.

Self-Employed Unfortunately, there is no mention of self-employed immigrants. This leads me to the conclusion that the Minister intends without any justification to abolish the present self-employed program that has been traditionally used by farmers, actors, entertainers and business consultants as a means to immigrate to Canada. This category has benefited Canada because immigrants to Canada under this category have contributed significantly to Canada's economy or cultural life.

Family Business Similarly, another program on the chopping block is the family business job offer program. Under this program, assisted relatives abroad could obtain bonus points if an immigration officer validated the job offer by a close relative in Canada. Under this program, the prospective immigrant could overcome insufficient points for education, experience or Education Training Factor (ETF). The key aspect of this program was that there was a bona fide job offer in a position of trust for the assisted relative abroad. This program has been used successfully by many applicants to join their relatives in Canada.

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Proposed Changes dealing with the retention of permanent residence

In the White Paper, the Minister proposes to toughen the rules regarding the retention of Canadian residence status for those immigrants that travel abroad frequently. The proposal is to change the current provision that is based upon intent to abandon Canada as a place of permanent residence with a new requirement that is based on the notion that an immigrant must physically reside in Canada for a fixed period. However, the fixed period is not set out in the proposal.

The proposal envisages the issuance of permanent resident cards that would need to be renewed. It seems likely that the program will lead to the elimination of the program whereby an immigrant is able to obtain a returning resident permit to facilitate their return to Canada. It is therefore apparent that immigrants who need to travel abroad frequently for personal, business or educational reasons may find it more difficult to retain Canadian permanent residence status while abroad.

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Proposed Changes in the Selection of Temporary Workers

In her White Paper, the Minister has recognized the need to reform the system of selection of temporary workers to meet the needs of Canadian industry. At the present time, a Canadian employer must obtain a validated job offer from an official of Human Resources Development Canada before the foreign worker can apply for an temporary employment authorization, unless he or she can persuade an immigration official that an employment authorization can be issued without the need for such a validation. A validated job offer would only be obtained if the official at Human Resources believes that the foreign worker's employment will not adversely impact on the labour market for Canadians. The selection of temporary workers is both cumbersome and decisions are inconsistent.

Under the Minster's Proposal, the admission of temporary workers will be more sensitive to the needs of Canadian business to fill shortages of skilled workers in certain sectors of the economy such as the knowledge-based industry. The proposal will expand specific programs such as the Software Engineer program into other areas where there is a labour shortage. At this stage, it is unclear what those areas will be.

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This page last updated: October 6, 1999
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