The Government of Canada has introduced new immigration regulations that will become effective on June 28, 2002. The Immigration and Refugee Protection Regulations (the “IRPR regulations”) will introduce new procedures for the Economic Class comprising of the federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the investor class, the entrepreneur class and the self-employed persons class.
The selection rules with a proposed pass mark of 75 for the skilled worker class, will feature a highly unpredictable approval process with increased reliance on the use of positive (and negative) discretion for many applicants and will favour married applicants with university education at the graduate level. The IRPR regulations will particularly favour applicants with approved job offers in Canada.
In addition, the new rules will be implemented retroactively by way of a two-tiered pass mark requiring that skilled worker applications filed before January 1st 2002 which have not received a selection decision under the old rules prior to April 1, 2003, to score 70 points under the new rules. Skilled worker applications filed after January 1, 2002 where a positive selection decision is not rendered by June 28th 2002 will not be shielded from the new rules and will be subject to the new selection criteria with a pass mark of 75 points under the new rules.
By all accounts, Canada’s immigration intake is impressive. In proportion to its population, Canada admits approximately three times the number of immigrants, as does the United States. The current liberal government in its report to Parliament in 2001, has called for an influx of newcomers ranging from 210,000 – 235, 000 in the current calendar year. Inventories of pending applications at missions abroad, far exceed these numbers.
Such an influx of human capital on an annual basis, poses obvious challenges to the country’s infrastructure. Canada’s population, which exceeds 31 million, includes almost 5 million immigrants from well over 200 countries and territories. Chinese is now the third most widely spoken language in Canada surpassing Italian.
With a negative birthrate, declining death rates, and an aging population, immigration is the sole contributor to Canada’s population increase – a major factor towards its continued economic prosperity.
While Canada is aggressively reaching out (and competing in many respects with the United States, members of the EU, Australia, New Zealand) to a global pool of highly skilled individuals largely from the world’s developing countries, the current liberal government must implement proper safeguards to address the issues which are associated with an aggressive immigration program. Although polls have suggested that Canadians are proud of their cultural diversity, these same polls convey that some Canadians prefer less immigration. Yet, the current liberal government is resolved to implementing immigration policies and programs as a vehicle to enhance the country’s economic requirements in light of a national falling birth rate, an aging population and a highly publicized brain drain which continues to plague Canada’s labour force.
Members of the immigration and legal community in Canada are deeply concerned however with retroactive application of the new regulations. This is an unprecedented stand in the Canadian immigration field and will permit the government to refuse applications for permanent residence, without interview, previously submitted under current legislation that do not meet the new selection rules. As the Department of Citizenship and Immigration imposes a cost recovery fee to process applications for permanent residence, the government’s stated objective to introduce a transparent selection process will ironically result in the loss of up to 100 Million Dollars on the part of pending applicants who face rejection. This government stand is therefore flagrantly contradictory, unjust and “un-Canadian”. The overwhelmingly vast majority of applicants currently undergoing processing had no way to verify their credentials under proposed legislation and were never advised by the Canadian government of the potential risk that their applications might be refused under new legislation. In fact, the current department of Citizenship and Immigration has always advertised and applied the principle that an application once received with a correct processing fee, would be “locked-in” and assessed under the rules in force at the time of application receipt.
Many believe that the proposed high pass mark will not prevail for an extended period and is being implemented solely as a measure to reduce the number of pending applications without interview in the months ahead, thereby reducing the current inventory of over 170,000 pending applications involving more than 400,000 people awaiting assessment many of which were filed at Canadian missions abroad as far back as 1997-1998. Policy makers readily acknowledge that excessively long processing delays are a hindrance to a successful immigration program.
The following represents a summary of the IRPR regulations primarily related to selection.
ECONOMIC CLASS
Skilled Workers
The new regulations are intended to permit the effective management of a greater number of skilled immigrants, which previous procedures did not permit. The new selection model is being promoted to select individuals with flexible skill sets that will permit newcomers to succeed in a fast-changing, knowledge-based economy.
It is apparent however that this legislation with a proposed pass mark of 75 will:
- Implement an unpredictable selection system that places more emphasis on higher education, language abilities and flexible transferable skills.
- Reward applicants with approved job offers in Canada.
- Favour married applicants with university education at the graduate level.
- Recognize experience in any skilled and trades occupation and move away from an occupation-based selection model.
- Preserve the discretionary powers of a visa officer to assess an applicant’s settlement potential, irrespective of the point total and approve an application under the positive discretion (or refuse an application under the negative discretion) provisions of the regulations.
- Introduce a negative occupations list to exclude and protect certain occupations in Canada from foreign workers.
- Create an in-Canada landing provision for temporary workers and certain recent graduates from Canadian schools who qualify as skilled workers and who have a permanent offer of employment.
- Provide the Minister with authority to set and amend the pass mark at any time during the process with no lock-in protection for an application under assessment.
- The proposed selection model for the skilled worker class will provide as follows:
| Factor |
Your Score |
Final |
| EDUCATION |
|
25 |
| LANGUAGE |
|
24 |
| EXPERIENCE |
|
21 |
| AGE |
|
10 |
| ARRANGED EMPLOYMENT |
|
10 |
| ADAPTABILITY |
|
10 |
| TOTAL |
|
100 |
| Factor |
Your Score |
Final |
| EDUCATION |
|
Max. 25 |
| University Degrees |
| PhD, or Master's, AND at least 17 years of full-time or full-time equivalent study |
|
25 |
| Two or more university degrees at the Bachelor's level AND at least 15 years of full-time or full-time equivalent study |
|
22 |
| A two-year university degree at the Bachelor's level AND at least 14 years of full-time or full-time equivalent study |
|
20 |
| A one-year university degree at the Bachelor's level AND at least 13 years of full-time or full-time equivalent study |
|
15 |
| Trade or Non-university Certificate or Diploma |
| A three-year diploma, trade certificate or apprenticeship AND at least 15 years of full-time or full-time equivalent study |
|
22 |
| A two-year diploma, trade certificate or apprenticeship AND at least 14 years of full-time or full-time equivalent study |
|
20 |
| A one-year diploma, trade certificate or apprenticeship AND at least 13 years of full-time or full-time equivalent study |
|
15 |
| A one-year diploma, trade certificate or apprenticeship AND at least 12 years of full-time or full-time equivalent study |
|
12 |
| Secondary School Educational Credential |
|
5 |
| LANGUAGE (Abilities: Speak, Read, Write, Listen) |
|
Max. 24 |
| 1st Lang. |
High proficiency (per ability) |
|
4 |
| Moderate proficiency (per ability) |
|
2 |
| Basic proficiency (per ability) |
|
1 to max. of 2 |
| No proficiency |
|
0 |
| Possible maximum (all four abilities) |
|
16 |
| 2nd Lang. |
High proficiency (per ability) |
|
2 |
| Moderate proficiency (per ability) |
|
2 |
| Basic proficiency (per ability) |
|
1 to max. of 2 |
| No proficiency |
|
0 |
| Possible maximum (all four abilities) |
|
8 |
| EXPERIENCE (NOC Skill Level O,A,B) |
|
Max. 21 |
| One year |
|
15 |
| Two years |
|
17 |
| Three years |
|
19 |
| Four years |
|
21 |
| AGE |
|
Max. 10 |
| Max. 10 points for: |
|
21-49 |
| Less two points for each year: |
|
over 49 or under 21 |
| ARRANGED EMPLOYMENT IN CANADA |
|
Max. 10 |
| HRDC-confirmed permanent offer of employment |
|
10 |
| Applicants from within Canada holding a temporary work permit that is: |
- Validated by HRDC, including sectoral confirmations
|
|
10 |
- Exempt from HRDC validation under international agreements (e.g., NAFTA) or significant benefit (i.e., intra-company transferee)
|
|
10 |
| ADAPTABILITY |
|
Max. 10 |
| Spouse's or common-law partner's education |
|
3-5 |
| Minimum one year of full-time authorized work in Canada |
|
5 |
| Minimum two years of full-time authorized post-secondary study in Canada |
|
5 |
| Points received under the Arranged Employment factor |
|
5 |
| Family relationship in Canada |
|
5 |
| Total |
|
100 |
INVESTORS AND ENTREPRENEURS
The IRPR regulations introduces a more objective and transparent process to assess an applicant’s ability to establish a successful business in Canada while introducing powers for immigration authorities to identify and refuse applications by members of organized crime.
- Introduces previous business or management experience and personal net-worth as the threshold for selection.
- Defines Investor to mean an immigrant who has experience in the ownership or management of a business; has a net worth of at least $800,000 (including spousal assets); makes an investment of $400,000 in an approved investment fund.
- Defines Entrepreneur to mean an immigrant who has experience in the ownership of a qualified business; has a net worth of at least $300,000, (including spousal assets).
SELF-EMPLOYED PERSONS
The IRPR regulations will assess “self-employed” under the economic class regulations and redefine “self-employed” to include only immigrants who can make an artistic or cultural contribution, farmers and world-class athletes.
FAMILY CLASS
The new regulations will better reflect contemporary social realities of longer child dependency while also recognizing that some young adults enter new family relationships at a younger age. Legislation also recognizes the needs of same-sex couples who cannot live together in their country of origin and facilitates the reunion of Canadian citizens and permanent residents with their family members as soon as possible using criteria which advocate transparent criteria.
- Expands the definition of “family class” by increasing the age of “dependent children” from the current under age 19 years to under age 22 years.
- Includes unmarried children under age 22 years, or over 22 if they are full-time students or mentally or physically disabled and dependent on their parents.
- Modernizes the concept of “family” to include common-law and same sex partners.
- Defines common-law partner to include a person who is cohabitating in a conjugal relationship for at least one year.
- Includes “parent” in the definition of “family class” within the Act.
- Expands the family class to include guardianships.
- Facilitates family reunification by creating an “in-Canada landing class” for sponsored spouses and partners for immigrants and refugees.
- Exempts sponsored spouses, partners and dependent children from assessment of admissibility with regard to excessive demand on health or social services.
- Reduces the age at which Canadian citizens and permanent residents are eligible to sponsor from age 19 to age 18 years.
- Reduces the length of the sponsorship-undertaking requirement from the current 10 years to 3 years for spouses and common law partners.
- Creates an in-Canada landing provision for spouses, common-law partners and their dependent children.
RESIDENCE REQUIREMENTS
The new rules require physical presence in Canada for a cumulative period of 2 years in the preceding 5 years. Permanent residence cards will replace the current record of landing document.
The new rules will take effect on June 28th, 2002. Further updates will be provided in due course.
