Canada’s new immigration act is unjust, say experts

By Kokila Jacob

Canada is set to make millions from immigration - unjustly - under the proposed regulations of the new Immigration and Refugee Protection Act, Bill C-11, announced on December 15, 2001.

A majority of the applicants who have filed for immigration under the skilled workers category prior to December 17 and who were eligible under the old system will not qualify under the new system. Therefore, they will lose their non-refundable processing fee ($500 per adult, $100 per child - amounting to a couple of thousand dollars per family) paid to the Canadian government.

If they have not been interviewed (or their files processed) before June 28 this year, when the act comes into effect, they will be evaluated under the new system but will need 75 points to qualify (as against 70 points required in the old system).  All those who applied on or after December 17 will require 80 points.

With an inventory of more than half million applicants the chances of getting interviews or their cases seen before June 28 is “very small,” said Stephen Green, Toronto based immigration lawyer.

This is a major loss for families, whose cumulative fees would amount to a couple of thousand dollars. And it is not just a financial loss, in countries such as China there is a four to five year waiting period, and all those who waited putting their lives on hold for their cases to be processed now face certain rejection.

The Canadian government has been widely criticized not just on the actual changes being made but also for making the regulations retroactive. While the regulations are to be implemented along with the new Act on June 28 this year, some provisions of these regulations specifically Part 5, which refers to the selection of skilled workers and business applicants, have immediate effect.

This does not speak well of a country that prides itself on its democratic traditions and for being a just and fair society.

“This is a black eye for Canada. It is bad for our stability. The new regulations will make it very difficult for Canada to get the people we want,” said Mr Green.

The trouble with the new system is that “if you don’t get 10 points for adaptability (a new factor introduced in the new Act) the likelihood of you passing is extremely small. It also prejudices people who are single and have nobody in Canada. They simply cannot make it. This should not be the case. We are based on equality in this country,” said Mr Green.

For example: A computer systems analyst who is single with a bachelor’s degree, speaking perfect English and having a year's experience would have got 74 points and therefore eligible under the old system.  (15 for education, 15 for education indicator, two for work experience, 10 for occupational demand, none for approved employment, eight for demographics level control, 10 for age, nine for language fluency, six awarded by visa officer during the interview, no relative in Canada.) But under the new system he will only get 56 points. (10 for age, 20 for education, 16 for language fluency, 10 for work experience, none for validated employment, and none for adaptability.)

Why has the Immigration and Refugee Protection Act been changed?

It should be noted that there has been widespread abuse of the Canadian immigration system in many countries and so Canada was expected to tighten its regulations. Changes to the Act have been expected for a long time, but the amendments and the manner in which they are being implemented (retroactively) have stunned everybody.

Immigration experts observe that the government's aim of killing two birds with one stone is sure to backfire. Ottawa hopes the new system will bring in a 'better educated' class of immigrants while also clearing the backlog of applications which has clogged many processing centres, noted Sam Bayat, a Canadian immigration lawyer with offices in many countries.

According to Mr Bayat, over 70 per cent of new jobs in Canada require some form of post-secondary education. Human resources and Development Canada (HRDC) has predicted that fewer than six percent of jobs in the next five years will be available to those with less than a high school education. He feels this explains why the new regulations place more emphasis on the applicants’ level of education and the principal applicant's language abilities.

Mr. Green pointed out that “the Government wants a new selection process which is not job oriented because when they (immigrants) come to Canada they may not perform the job they were selected for. So they want good people based on the 'human capital model'.”

Also “Canada has an inventory of half a million people waiting to be processed, with a four-five year waiting period in some countries. The new system is aimed at clearing up the mess.  If they apply the new system they will get rid of the inventory. But Canada will find it hard to get the people we want,” he said.

Most lawyers expect some changes to be made to the proposed regulations. Mr. Bayat, expects the qualifying points to drop to 70 again in a year's time "once the waiting list is cleared and they can start afresh."  How else would Canada meet its immigration quota, the numbers the government says it needs each year, when the new system will disqualify more than 60 per cent of would be applicants, he questioned.

Mr. Green too expects some changes, but he thinks they will be minor ones. "The government has to figure out a way to make it attractive to the trades’ people Canada needs. The new system does not bring in the people we need. We want young bright people, but they are discouraged. Canada will suffer terribly in worker shortage,” he warned.

What are the major changes?

The new regulations introduce a selection system for Skilled Workers different from the present criteria.

§        Points have been raised to 80 from 70 to be eligible. Some individuals will benefit, while others, mostly from non-Anglophone or non-Francophone countries, will find it hard to qualify due to the way the points for language are calculated.

§        A new focus, not existing in the previous system, is on the proficiency over either or both official languages, ie, English and French. Fluency in either or both languages is determined by speaking, reading and writing skills level with a fourth new addition of ‘listening’ ability. A candidate who is very fluent in both English and French gets the maximum 20 points. If he is fluent only in one of these languages he gets 16. If he is somewhat fluent in either of these languages, he gets only eight points and none if he does not know these languages. The government is expected to announce designated language centres (similar to designated medical centres) for testing a candidate's proficiency and it may be up to the immigration officer as well to do so.

§        Points accorded to education have been changed with a maximum of 25 points for doctoral/PhD and master's degrees. The length of studies is also being taken into account.  For example, bachelor’s degrees should be equal to at least three years full time studies and at least 15 years of full time studies.

§        The applicant will also be assessed under a brand new factor - 'adaptability', with a maximum of 10 points. This is determined by a combination of factors such as - a spouse's qualifications, studies in Canada by either the candidate or spouse, having at least a year's full time authorized work in Canada, having family in Canada, or having a genuine job offer in Canada.

§        The vocational list has been removed, thus many qualified individuals who have not been able to apply in the past because of the restricted occupations, such as doctors, managers or assistant managers in any field, will now be able to submit an application. However, the skill levels will continue to pose a major restrictive factor. The National Occupational Classification (NOC) breaks job categories into skill levels and assigns four digit numbers to each job category. Candidates with certain skill levels can apply and can come to Canada. For example, anyone whose job category has a second digit of 1 or 2 can apply. The NOC number for a computer systems analyst is 2162 and therefore eligible. Other job categories such as clerical and sales people don’t qualify, even if they apply. “ The reasoning behind this is Canada wants highly skilled, and educated people who will be upwardly mobile, adaptable and more likely to get employed. The big problem is it limits trades' people such as builders, electricians so on. The danger is there will be a shortage of such skills in the future,” said Mr Green.

§        While points for work experience have not changed, there is a major difference in that the new system does not limit the candidate’s work experience to his professional qualification, as in the old system.

§        Points allocated to the age factor and firm employment offers in Canada have not changed (maximum 10 points each).

§        The funds specified for an applicant family of three to support themselves during the initial settlement has been doubled. A family unit of three persons now need to demonstrate that they have available funds of at least C$ 27,805. Under the old system it was C$ 12,939.

§        The new system does not assign points for interview with the immigration officer as before. "In the old system even if you fell short of the points you had a chance if the immigration officer was convinced you made a good candidate. But now you have to get 80 points on the factors alone," explained Mr Bayat.

Concerning the other immigration categories, there have been no changes to the investor category, but a significant one to the entrepreneur category.

The new system requires an entrepreneur to bring in a minimum of C$300,000 and he has to invest $125,000 within three years in a business. Previously no amount was specified.

Self employed and small family business categories have been removed. It now only applies to athletes and farmers.

What is good about the new Act?

Not much it seems judging from the reactions so far. The public had 30 days to comment following the announcement of the proposed regulations on December 15. And sure there was an immediate response. Critics, the media, immigration lawyers and the public at large were swift to condemn the changes as arbitrary, unreasonable, and downright unfair.

Permanent Resident Card:

Canada, for the first time, is issuing a renewable, secure, proof-of-status document valid for five years. Successful immigration applicants will be issued a Permanent Resident card under the new Act instead of the record of landing (IMM1000). Individuals who are already permanent residents must apply for this card if they are planning to travel out of Canada.

The card also permits such residents to remain outside Canada for three years at a stretch but they have to be physically in Canada for the next two years. However, the resident can get a waiver for the two years if the individual is traveling/living outside for reasons of pursuing genuine Canadian business interests.

Immigration lawyers note that this is biased against students for whom the two-year exemption does not apply. They will not have the option of doing study programs that take more than three years.

If the resident is outside Canada and the card expires he/she cannot return to Canada without renewing it.  Applications for renewal have to be filed through

the Canadian embassies and the resident may be granted a right of appeal to the

immigration appeal board. However, the resident will need to come to Canada for the hearing. This is a Catch 22 situation, explains Stephen Green, Toronto based immigration lawyer.

"Appeal rights are based on nationality. If the resident's origin is from countries which require a visa to Canada then even if the individual is a permanent resident the individual will not be able to come to Canada for the hearing. Example, a German national has fuller appeal rights than Chinese or Indians. Germans don’t need a visa to come here but the Chinese and Indians do. I think this bias is extremely unjust," said Mr. Green.