This guest article was authored by Siavash Shekarian, CEO, Shekarian Law Professional Corporation.
Given the ongoing global battle with the COVID-19 pandemic, the budget deficit hitting billions of dollars, rising inflation, and shortages in every corner of the economy, it is obvious that immigration policy is more important than ever. Immigration, Refugees and Citizenship Canada (IRCC) is a major department within our elected government mandated with “building a stronger Canada” by ensuring that our immigration policies, programs, and services are developed and delivered as intended. This Department, however, is regrettably falling short. The pandemic has represented a litmus test for the efficiency of IRCC like never before. IRCC is indeed a bureaucratic government department with limited resources dealing with extraordinary demands and millions of applicants in line to come and/or settle in Canada.
A primary obstacle to improving our immigration systems, is the lack of basic democratic processes in creating immigration policies. It is true that our democratic will is reflected by the Immigration, Refugee Protection Act (IRPA) which is duly enacted by our elected parliamentarians; however, IRPA is just a framework legislation. In other words, it does not deal with details and leaves most of them to be decided through Ministerial Instructions (MIs). MIs basically grant the Immigration Minister of the day, the authority to make law, something we normally expect our Members of Parliament to do.
Take the Express Entry system, as an example, it was created in 2015 and is the largest source of new immigrants to Canada each year and is currently operated by MIs. Under this system, the Minister sets and publishes the pass mark internally and then extends invitations to applicants to apply for permanent residence. We faced the most notable instance of this law-making-by-decree process in February 2021 when the minster decided to lower the cut-off score under Express Entry to 75 which was 379 points lower than the previous rounds. The pass mark of 75 allowed all applicants to become permanent residents who only had one year of Canadian work experience. This was presumably because the then Immigration Minister, under pressure from the COVID-induced immigration levels drop, decided to favour quantity over quality (the Minister argued that the pandemic caused a re-think as to who is really considered essential in Canadian society and posited that essential workers included those performing jobs which normally do not require community college or university education).
Express Entry, along with its most peculiar draw in February 2021, is just one example of major immigration policy, criteria and processes that have been established by MIs. Many other programs are created, terminated, and changed through MIs. Accordingly, the public and our elected Members of Parliament, have not contributed to the development of other important programs, such as the TR2PR pathway, the Start-up Visa Program, the Atlantic Immigration Pilot, the Caregiver pilot programs, and many other programs. Rather, the Immigration Minister of the day just announced they have been created.
In a democratic society, the people should have the opportunity to meaningfully engage with how laws are made, particularly the laws that quite literally determine the future of our country. In general, the people’s say and will are often exercised through democratic measures required for law-making such as notice, consultation, analysis, public scrutiny, parliamentary accountability, procedural formalities, etc., all of which have become increasingly absent in our current immigration system. Further, Canada is a leader of the global open government movement which calls on governments to focus on citizen participation in law making. This, however, is short circuited through the use of MIs as they do not require any consultation or engagement with stakeholders, Members of Parliament or the Senate. The benefit of MIs is the ability to pivot and introduce change quickly. The pandemic has created a situation where rapid change may be required such that justifies significant change without consultation. In some instances, fast implementation of changes is necessary and the use of MIs are justified.
If we want a ‘stronger Canada’, we need to remember that desperate times call for people to come together and to work together to solve and improve our systems. How can we be better without engaging our brightest and sharpest in the way we govern? How can we thrive without dialogue – the most basic step for working together? Our current decision makers must therefore be reminded that dialogue is not just an election gimmick. It is an integral part of democracy and the job with which we have entrusted them.
The Canadian Association of Immigration Lawyers known as CILA is an association of Canadian “ambassadors”. We are ambassadors because most of the time we are the first representatives of the country that future Canadians interact with. Recently however we have been spending most of our time explaining to our clients the shortcomings of our immigration system and the unpredictability of programs governed by MIs, where policy and criteria can change without notice.
CILA is home to experts coming from four corners of our vast country, including lawyers who are well-versed in immigration law and highly experienced in immigration practice, seeing firsthand how the programs and systems work. Accordingly, CILA is a valuable resource to IRCC for providing comments on improving the Canadian immigration system. CILA was organized to advocate for practical solutions that are derived from our collective wisdom. CILA does not represent the interest of any one group of immigrants. Unlike many other stakeholders that advocate for their particular constituents, CILA advocates for all immigrants and newcomers to Canada. We are a non-profit no-expectation group offering our best for building a stronger Canada. CILA looks forward to a healthy dialogue with government officials including Immigration Minister Sean Fraser.
