The exercise of advising prospective immigrants to Canada on the requirements to succeed on a particular visa application and the parameters which attach to the status it affords once approved, necessitates a broad based knowledge of and experience with the multitude of issues involved in the selection process.
The rules governing this process are found first and foremost in the Immigration law, as laid down by Parliament and delegated to the Governor in Council.
The embodiment of case law serves to define and interpret legislation, which all too often in the Canadian Citizenship & Immigration field, is highly subjective and at times objectively indefinable.
Immigration policy as defined by directives and practice created by immigration officials (or conveniently established by individual Program Managers) are generally set out in various manuals (SELECTION AND CONTROL; ENFORCEMENT & EXECUTION; INLAND PROCESSING; PORT OF ENTRY PROCESSING; OPERATIONS MEMORANDUMS), and is frequently in direct conflict with applicable legislation or with current case law.
For example, certain aspects of the entrepreneur program as described in current versions of the immigration SELECTION AND CONTROL manuals, continue to violate the Immigration Act, its attendant regulations and the case law which interpret the correct manner in which applicable provisions of said legislation must be construed.
A further example can be found in the practice recently established by a particular Canadian visa office in the United States. The office in question has recently established a policy of administering two immigration queues – one for applicants who reside in the United States and a second queue for applicants who are deemed “off-shore” cases.
We have observed that in one particular “off-shore” case brought to our attention, a most qualified applicant will have incurred an outrageous delay of 10 months to interview, primarily due to the fact that the visa office in question, has unilaterally decided to extend preference to local cases and place offshore cases on a deterrent minded waiting list. This suspect practice appears in direct conflict with a standing decision of the Federal Court of Canada which admonished the policy by visa offices of processing cases by “jurisdiction”.
Other examples of ongoing disparities which exist between law and policy can be found without limitation in the following areas as denoted in the immigration SELECTION & CONTROL manuals:
- The selection of independent applicants and particularly:
- the evaluation of employment experience;
- the assessment of education;
- the request to obtain Provincial registration or licensing of professionals;
- the evaluation of employment experience;
- The application of the definition of “accompanying son” or “accompanying daughter”;
- The filing of cases in the Family Class from inside Canada;
- The exclusion from Canada of persons who are deemed medically inadmissible.
Prospective applicants are cautioned and advised to refrain from overly relying on unqualified references to immigration policy in that such a practice is often in direct conflict with applicable legislation and/or decisions handed down from our courts declaring such policy to be invalid.