Operational Bulletin 585 – August 12, 2014

Cessation of Processing and Return of Fees and Investments for Certain Federal Investor Immigration and Entrepreneur Immigration Applications

Summary

Earlier, officers could process certain applications made under:

• The federal Immigrant Investor Program (IIP) and,
• The federal Entrepreneur (EN) program

However, the authorities have ceased the processing of certain applications made under these two programs. This cessation of processing of applications is effect June 19, 2014.

There could be situations where the applicants submitted IIP and EN applications to Citizenship and Immigration Canada (CIC). At the time of submitting these applications, the applicants would have paid certain fees to CIC. CIC would need to return the fees for processing these applications submitted under the IIP and EN programs to the person who paid them. This is a mandate, required by law. Thus, the authorities would be liable for repaying any investment made in respect of terminated IIP applications to the applicants concerned.

Note:

• Officers must not take any action on cases terminated by the operation of law
• Officers would need to consult with Strategic Planning and Delivery, International Region if they are unsure of whether the authorities have terminated a case or not

Issue

The authorities made certain amendments to the Immigration and Refugee Protection Act (IRPA). The authorities enacted these amendments as part of the Economic Action Plan 2014 Act, No. 1. These amendments came into force from June 19, 2014.

This Operational Bulletin (OB) provides instructions to the officers of the CIC. It guides them on the process to follow when it comes to the termination of certain federal IIP and EN applications.

Background

The Economic Action Plan 2014 Act, No. 1 terminates applications based on certain factors. The authorities have defined these factors in the Act. By doing so, the Act gets rid of the majority of the backlog in the federal IIP and EN programs. The amendments made also include provisions for:

• Returning the fees paid to the CIC by various IIP and EN applicants and,
• Returning the investments to IIP applicants in cases where the authorities have terminated their IIP applications

The authorities enacted the relevant provisions of the Economic Action Plan 2014 Act, No. 1. This enactment took place on June 19, 2014. Therefore, the termination of certain federal IIP and EN applications takes place by the operation of law.

Officers would need to terminate applications by foreign nationals for permanent resident visas. This would be especially so, in case the foreign nationals are members of the prescribed class of investors and entrepreneurs. Certain conditions would need to apply for officers to terminate these applications by foreign nationals. These include situations where the officers have not established before February 11, 2014 that:

• The applicants meet the selection criteria and,
• The applicants meet other requirements applicable to those classes

In addition, the province of Quebec has an IIP of its own. Officers would need to note that these amendments do not affect the processing of applications for permanent residence for investors, selected by the province of Quebec. For these applicants, the processing of applications for permanent residence would continue as before.

Application Termination and Cessation of Processing

The points listed below would help officers identify whether:

• The operation of law has resulted in the termination of an IIP or an EN application by operation of law or,
• Officers would need to continue processing the applications to a final decision

Some features about the termination of certain applications entail that:

• Officers must not take any action on cases terminated by the operation of law
• Officers would need to consult with Strategic Planning and Delivery, International Region if they are unsure of whether the authorities have terminated a case or not
• Visa offices would not need to take any action for those applications terminated by the operation of law
• The Global Case Management System (GCMS) would freeze terminated applications as soon as possible after June 19, 2014
• This would ensure that officers cannot process the terminated applications any further

Situations could arise where visa offices could find some individual applications, which the authorities might have terminated incorrectly. In such situations:

• Officers would need to contact the Strategic Planning and Delivery, International Region
• They would need to explain why, in their belief, the application does not meet the criteria stipulated in the legislative amendments
• Strategic Planning and Delivery, International Region would confirm whether the application of law resulted in the incorrect termination of the application
• In case Strategic Planning and Delivery, International Region confirms the incorrect termination of the application, the NHQ would reactivate that specific file in the Global Case Management System (GCMS)
• This would enable officers to continue processing the application
• However, visa offices do not need to review their IIP or EN inventory periodically to find such cases
• They would only need to take action by contacting the NHQ, in case they come across cases like these on a normal basis
• Officers would terminate the application and return the fees paid to the CIC to the person who paid them if:
• The officers have not been able to establish whether the applicant meets the selection criteria prior to February 11, 2014 and,
• The authorities have not given a final decision to the application before June 19, 2014
• Officers would terminate the application and return the fees paid to the CIC to the person who paid them if:
• The officers have been able to establish whether the applicant meets the selection criteria on or after February 11, 2014 and,
• The authorities have not given a final decision to the application before June 19, 2014
• Officers would continue to process the application to a final decision and also retain the fees paid to the CIC by the person if:
• The officers have been able to establish that the applicant meets the selection criteria prior to February 11, 2014 and,
• The authorities have not given a final decision to the application before June 19, 2014
• Officers would continue to process the application for the necessary additional processing (e.g. the issuance of Confirmation of Permanent Residence documents or refusal letters, as applicable) and also retain the fees paid to the CIC by the person if:
• The officers have been able to establish that the applicant meets the selection criteria on or after February 11, 2014 and,
• The authorities have given a final decision to the application before June 19, 2014
• In this scenario, the final decision on the applications continues to stand

The Process for Establishing that the Authorities Have Made a Decision as to Whether the Applicant Meets the Selection Criteria

The authorities would need to take certain actions. These actions would help officers to determine whether the authorities reached a decision regarding the applicant meeting all the selection criteria.

Therefore, if the authorities take at least one of the following actions, it would denote that they made a decision about whether the applicant met the selection criteria or not. However, they would need to take these actions prior to February 11, 2014 for denoting that the applicant met the selection criteria. These actions include:

• Entering a selection decision into the processing system. This could include entering:
• “SELDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or
• “Eligibility – Passed” or “Eligibility – Failed” in the GCMS
• Stating clearly in the file notes whether the applicant met the selection criteria or not, without entering the selection decision into the processing system
• However, in these cases, visa offices do not need to review their IIP or EN inventory periodically to find such cases
• They would only need to take action by contacting the NHQ, in case they come across cases like these on a normal basis
• Re-opening the file for a redetermination, after the authorities had made a negative decision previously, based on:
• Orders received from a Superior Court (including the Federal Court) or,
• A settlement agreement entered into by way of a court order made prior to February 11, 2014
• In these cases, special considerations would apply to applications that the authorities had determined previously, which have also been the subject of a judicial review
• These cases could be complex in nature
• Hence, officers would need to refer any questions they have to the International Region
• The International Region would consult with Litigation Management on an “as needed” basis

Similarly, officers would consider that the authorities did not make a decision as to whether the applicant met selection criteria, prior to February 11, 2014. They would base this decision on certain criteria. This would be in case they find that any of the following situations applied as of February 11, 2014:

• Not entering or documenting a selection decision into the processing system, despite having conducted a preliminary review of the documentation
• Requesting for additional documentation from the applicant, which has not arrived as yet or if a selection interview is still pending or,
• Not entering or documenting a selection decision into the processing system, despite receiving additional documents that could have helped the authorities make a selection decision
• An example of this instance could be the receipt of an investment or a response to an officer’s request for additional information, prior to February 11, 2014

The Process for Establishing that the Authorities Have Made a Final Decision

Officers would consider that the authorities have made a final decision, if the authorities:

• Enter a decision in the processing system as:
• “FINDEC” in the Computer-Assisted Immigration Processing System (CAIPS) or
• “Final  – Approved” or “Final – Refused” in the GCMS OR,
• State clearly in the file notes that the final decision has been rendered, but the decision has not been entered in the processing system AND if the authorities enter the Security, Criminality and Medical decisions
• However, in these cases, visa offices do not need to review their IIP or EN inventory periodically to find such cases
• They would only need to take action by contacting the NHQ, in case they come across cases like these on a normal basis

Fee and Investment Returns

The authorities have formulated the process for returning the:

• Fees paid to CIC and,
• Investments made under the IIP

The amendments had resulted in the termination of the affected applications. Therefore, the authorities have centralised the process. The process for returning the fees and investments paid to CIC would take place at NHQ – Finance. They have taken this step in consultation with:

• Visa offices and,
• Provinces

The CIC bears the responsibility for:

• Returning the fees and investments and,
• Communicating with the affected applicants in a timely manner

Several unsuccessful applicants would have paid the Right of Permanent Residence Fee (RPRF). They would continue to be entitled to obtaining a return of that fee they paid. This is in accordance with the existing procedures.

Responsive Communication Lines

The authorities have developed approved communication lines. These communication lines would help visa offices in responding to enquiries from people related to the legislation like:

• The affected applicants
• Immigration representatives and,
• Investment facilitators

File Retention

The authorities would need to retain the files and supporting documentations. These documents would be associated with terminated applications belonging to the:

• The federal Immigrant Investor Program (IIP)
• The federal Entrepreneur (EN) program and,
• Federal Skilled Workers (FSW)

Hence, the authorities would prioritise all the files and supporting documentation associated with all the terminated applications for repatriation to Canada. They would repatriate these documents to Canada before March 31, 2015.

The staff would package all terminated files separately from all the other files that they are repatriating to Canada. In addition, they would label the boxes bearing the terminated files with the word “Terminated”. They would also provide the estimated costs by cost item (EMLES, courier etc.). They would provide these details to the IR Mission Support. The IR Mission Support would assign these expenses with a special allocation coding. This coding would make it easier for the officers to track all the expenses associated with this exercise.

Officers would need to retain these for a period of at least two years from the last point of administrative use. This practice is in accordance with:

• Current information management practices and,
• Current retention requirements

Officers would need to do this because of the ongoing litigation related to the terminated applications. Because of this, officers would need to suspend all normal policies on records retention. They would do so until the duration of the litigation concludes.

Officers would retain terminated applications in Canada. They would do this until they receive a confirmation from the Operational Management and Coordination Branch. The Operational Management and Coordination Branch would send a confirmation to the officers that the authorities have finalised all the litigation.

Source: Citizenship and Immigration Canada (CIC)