CANADA'S IMMIGRATION POLICY
Law and Government Division
Revised October 2002
TABLE OF CONTENTS
A. The Road to a New Act
B. Individual Cases
Keep the Focus on Immigration
C. Recurring Policy
IMMIGRATION AND DEMOGRAPHY:
WHAT’S THE LINK?
A. Our Population
B. Our Ages
C. Our Labour Market
THE FRAMEWORK AND GOALS
OF THE IMMIGRATION PROGRAM
CATEGORIES OF IMMIGRANTS
for Social Purposes – The Family Class
B. Immigration for
Humanitarian Purposes – Refugees and Those in Refugee-like Situations
1. Selection of Refugees
2. The Refugee
Status Determination System in Canada
C. Immigration for
1. Skilled Workers
2. Business Immigrants
3. Provincial Nominees
THE ROLE OF THE PROVINCES IN
SETTLEMENT AND INTEGRATION
A. Language Training
B. Immigrant Settlement
and Adaptation Program – ISAP
Assistance Program – RAP
D. The Host
E. Immigrant Loans Program
1. Geographic Location
2. Who Should Deliver Services?
of Foreign Credentials and Experience
APPENDIX 1. ANNUAL LANDINGS, 1962-2002
APPENDIX 2. ANNUAL IMMIGRATION PLAN,
APPENDIX 3. GOVERNMENT-ASSISTED AND
PRIVATELY SPONSORED REFUGEES (CHOSEN ABROAD), 1990-2001
APPENDIX 4. REFUGEE CLAIMS IN CANADA,
APPENDIX 5. FEDERAL SKILLED WORKER
APPENDIX 6. IMMIGRATION AND REFUGEE
PROTECTION CASE LAW
CANADA’S IMMIGRATION PROGRAM
Canadian immigration and refugee protection issues present
continual challenges and engender almost continual debate for lawmakers,
public-service workers, and the public alike. Strict application of the
legislation and regulations occasionally results in ordinary people hiding
in churches in order to try to stave off deportation. Generous humanitarian
impulses, as in the April–June 1999 reception of the Kosovo refugees, are
offset by public distaste at those who arrive “illegally.” In addition
to the human factors, the former immigration law was extremely complex,
the new law is untested, the field is litigious, and the resources of Citizenship
and Immigration Canada were severely cut back in the mid 1990s.
We cannot insulate ourselves from international events.
Events in far corners of the world often have repercussions here; closer
to home, the effects of 11 September 2001 in the United States continue
The Road to a New Act
Problems in the program are certainly not new. The pre-1989
refugee status determination system had virtually collapsed by the fall
of 1988 and it took 14 months for the controversial restructuring bill to
pass through Parliament, resulting in increasing backlogs, confusion and
public criticism of the system. In two reports in the 1990s, the Auditor
General criticized certain aspects of the refugee system.
In 1992 and 1995, the Immigration Act was extensively
amended. Each bill occasioned significant controversy on the part of interested
parties: immigration and refugee lawyers; refugee advocates, many of whom
work in settlement agencies; human rights groups; ethnic organizations;
knowledgeable individuals, and others.
Beginning in the mid-1990s, there was a thorough and virtually
continuous review of immigration and refugee law and policies. In early
January 1998, a three-member advisory group to the Minister of Citizenship
and Immigration released its report, Not Just Numbers: A Canadian Framework
for Future Immigration. A year in the making, the work was based on
wide consultation and presented a comprehensive review of all aspects of
Canadian immigration law and policy.(1)
The Minister of the day continued to consult the public and in January 1999
released a discussion document. Building on a Strong Foundation for
the 21st Century: New Directions for Immigration and Refugee
Policy and Legislation further contributed to the process of scrutinizing
Canada’s immigration system.(2) Comprehensive
immigration legislation was widely expected, but was delayed.
In the summer of 1999, when four boats carrying Chinese
migrants arrived off the shores of British Columbia, the debate over immigration
and refugee law and policies became more widespread and intense. Much of
the Canadian public did not like what it saw. Some 600 Chinese migrants,
including a number of teenagers, arrived in leaky boats amid execrable conditions.
None had documents, and most made refugee claims.
The Canadian public was taken aback. Much of the debate
was similar to that in the mid-1980s when two boats of migrants had arrived
off the East Coast. This time, however, sympathy was even scarcer because
more was known about the criminal organization and recruitment of the migrants
and the fact that for many the intended destination was not Canada, but
New York City.
Although many Canadians called for the migrants to be
returned to China immediately, the Minister of Citizenship and Immigration
and those knowledgeable about the refugee system explained Canada’s international
and domestic commitments. They pointed out that the arrivals represented
a tiny percentage of the number of individuals who arrive each year, mostly
by air or across the U.S. border, to claim refugee status. Nevertheless,
mass arrivals do frequently generate a backlash, especially when there are
strong suspicions that those arriving are not true refugees.(3)
The pressure on Citizenship and Immigration Canada, and
the public debate, continued when, in April 2000, the Auditor General of
Canada released a report to the House of Commons. Chapter 3 was entitled
“Citizenship and Immigration Canada – The Economic Component of the Canadian
Immigration Program.”(4) The Auditor
General found that immigration officers overseas were overwhelmed by their
workload, and concluded that the Department did not have the resources to
process the number of immigration applications required to reach its target
The report also noted numerous examples of operational
inefficiencies and poor administration, leading to doubts about the quality
and consistency of the decisions regarding immigrant selection. Medical
assessments were found to be inconsistent, and the legal tools to guide
decisions on medical inadmissibility lacking. Information needed by visa
officers to establish the admissibility of immigrants on criminality and
security grounds was scant, and it appeared that the Department was open
to fraud and abuse. Of equal concern, the Auditor General revealed that
a number of the problems identified were long-standing; indeed, many had
been reported in 1990, his last review of the Department’s non-refugee work.
The Auditor General concluded that the deficiencies identified
were seriously limiting the government’s ability to deliver Canada’s immigration
program, and, consequently, its economic and social benefits. Moreover,
the safety of Canadians could not be ensured due to insufficient control
of our borders.
The long-awaited legislation, Bill C-31, the Immigration
and Refugee Protection Act, was tabled in the House of Commons in April
2000. Study of the bill by the Standing Committee on Citizenship and Immigration
had just begun when an election was called and the 36th Parliament
ended; thus, Bill C-31 died on the Order Paper. Its replacement,
Bill C-11, was introduced in Parliament in February 2001, received Royal
Assent on 1 November 2001, and came largely into force, along with an entirely
new set of regulations, on 28 June 2002.(5)
Before the new Act was even through Parliament, however,
the events of 11 September 2001 in the United States again focused
attention on certain aspects of Canadian law and policy, in particular,
the refugee determination system and border controls.(6)
Although initial American suspicions that the terrorists had gained access
to their territory through Canada were disproved, Canada came under pressure
to heighten border security measures. On 12 December 2001, then Foreign
Minister John Manley and U.S. Homeland Security Director Tom Ridge signed
the Canada-U.S. Smart Border Declaration, which contained a 30-point plan
designed to ensure the free movement of goods, while increasing security
and combating terrorism.(7) A number
of the goals in the plan have immigration and refugee aspects that will
take months or even years to come to fruition.
Cases Keep the Focus on Immigration
Even when policy issues quiet down, high-profile immigration
and protection cases are reported in the press regularly. A significant
number involve criminality among immigrants and the difficulty of deporting
such people. Other cases involve immigrants who are possible security risks.
Still others concern nannies who have violated the conditions of their work
permit or families with medical problems engaging the public, press and
churches in order to try to avoid removal. In short, immigration issues
in one form or another are almost continually in the media, and hence, the
Many general questions relating to immigration and refugees
continue to be relevant year after year. They include:
Are immigration levels high enough? Are they too
What kinds of immigrants are best for Canada?
What settlement services are needed for new immigrants?
How can immigrants’ educational and training credentials
be recognized fairly and quickly?
What should be our policy for refugees? Does Canada
accept more refugee claims than other countries?
How should we respond to refugee claimants who arrive
How can criminals and security risks be prevented
from entering Canada?
What is the best balance between facilitating the
movement of people and exercising control of our borders?
Why do we seem to have such trouble removing people
who have no right to be in Canada and what can be done about it?
Should we continue to deport people to countries they
do not know when they have spent most of their lives in Canada?
How can Canada fulfill its international humanitarian
commitments and provide leadership?
Needless to say, this paper does not answer these questions.
The intention is rather to provide a general framework whereby readers may
become aware of immigration issues, the immigration program and background
information for what can be a very complex area of law, and government policy
AND DEMOGRAPHY: WHAT’S THE LINK?
Recently, the question of immigration has been linked
closely with Canada’s future as the implications of demographic changes
become clearer. As recent census figures reveal a sliding birth rate, and
as the population ages, many inside and outside government have seen immigration
– and greatly increased immigration – as essential both to stave off severe
labour market dislocation and to protect social programs. Others are not
so sure. The implications of our demographics and the current debate surrounding
it thus deserve a special section of their own.
Some key demographic facts in brief are as follows.
Canada’s fertility rate fell to a record low of 1.49
At current fertility rates, deaths are predicted to
exceed births in Canada in 20-25 years.(10)
At that point, immigration would account for all population growth.
Canada’s large “baby boom” generation, those 10 million
Canadians born in the 20 years between 1947 and 1967, will begin entering
their 60s, and start retiring, in about five to ten years.
The working-age population is aging; from 1991 to
2001, the population aged 45 to 64 increased by almost 36%.(11)
Our median age is now 37.6 years.(12)
In the first half of the 1990s, immigration accounted
for 70% of net labour force growth.(13)
By 2011, immigration is expected to account for all
net labour market growth.(14)
Studies already reveal labour shortages in nursing,
education, and the skilled trades.(15)
Assessing the foregoing, many take the view that Canada’s
immigration levels should remain high, or increase significantly – to 1%
of the population or even much more. Some focus generally on overall demographic
needs, while others stress labour market requirements, but the result is
the same – support for high, and higher, levels of immigration, to deal
with both immediate needs and the longer-term outlook.
A contrary view exists. Its proponents advance a number of different arguments.
For example, they point out that although immigration can affect the labour
market, and the total population, it has little effect on the age structure
of the population. Only a higher fertility rate can significantly affect
this.(16) Nor can immigration “solve”
the problems of an aging population. Demographers point out that Canada’s
baby boom generation has actually delayed the aging of our population relative
to Western European countries and Japan. We will not reach the age structures
of some European countries for approximately 20 years, so we have time to
adjust our pension and medical systems and learn from their experience.
Some demographers downplay the view that we have existing labour market
shortages, or will have in the future. They point to a current relatively
high unemployment rate, and the fact that the baby boomers’ children will
be entering the labour market as the boomers retire – labour shortages possibly
in 20 years, but nothing to worry too much about at the present time. They
also point out that there is little correlation between the size of a country
and its economic well-being.
Some environmentalists point out the link between population growth and
environmental degradation and resource depletion, and question the basic
assumption that Canada’s population needs to continue to grow. They note
that the current pattern of immigrant settlement largely in Canada’s three
major cities leads to more urban congestion. Yet any suggestion that potential
immigrants should be compelled in some way to live in the less populated
areas has to date been very controversial.
Others point out that the notion that older Canadians will be “dependent”
on younger workers is false. They note that the health of those over 65
is better than in the past, that seniors pay taxes too, and that many make
economic and non-economic contributions to society. Our view of “old age”
is outdated, they argue.
It has been pointed out, and acknowledged by the federal government, that
immigrants arriving in the 1990s were initially less successful economically
than previous arrivals, despite having higher levels of education, on average,
than Canadians.(17) There may be
numerous reasons for this situation, including: inadequate systems for
evaluating foreign education and training credentials and providing for
any necessary upgrading; a reluctance of Canadian employers to hire workers
without Canadian experience or less than complete language fluency; and
negative attitudes on the part of some employers toward hiring newcomers,
particularly visible minorities. Some have argued that, until these problems
are ironed out, it would be fairer to potential immigrants to keep immigration
levels modest, or at least provide better information to prospective immigrants.
Finally, some commentators note that the immigration program costs money.
At the federal level, significant resources are required for overseas and
inland processing, for settlement and integration programs, and for the
additional enforcement activities that higher immigration levels could be
expected to bring. Such costs are only partly offset by user fees charged
to applicants. Provincially, newcomer children typically need second-language
instruction in English or French. Some immigrants need social assistance,
and there the medical services that all permanent residents are entitled
So, is there a “right” immigration level for Canada? Clearly any such
discussion must cover demography, economics, public finance, absorptive
capacity (particularly of our large cities), and must also be politically
sensitive. Policy makers need to avoid overselling immigration as a complete
solution to demographic trends. At the same time, where significant labour
market shortages appear, the immigration program should ideally be nimble
enough to assist in helping to alleviate them. Meanwhile, Canada has a
significant advantage, shared by the United States, in that our populations
are younger than those of other Western democracies and Japan, and can learn
from their experiences.(18) We also
have another advantage over those countries. In contrast to their current
general antipathy to immigration, our tool kit for addressing the changes
our aging population will bring includes a sophisticated immigration program,
whatever the actual levels may be from time to time.
FRAMEWORK AND GOALS OF THE IMMIGRATION PROGRAM
The foundation of Canada’s immigration program is the Immigration and
Refugee Protection Act,(19) the
regulations that accompany it,(20)
and the decisions of the courts and the Immigration and Refugee Board.
Also important are the various components of the Immigration Manuals, which
contain extensive guidelines and instructions to officials administering
the program, although the Act or regulations would prevail in the case of
Current demographic questions aside, why does Canada have an immigration
program, let alone one that welcomes more net immigrants per capita than
any other country in the world?(22)
Three purposes are generally cited in answer to this question, to which
we may add several more. Each purpose results in a specific component of
A. The social component– Canada facilitates family reunification
and permits the nuclear family unit (spouses, dependent children) to immigrate
with principal applicants. Objective 3(1)(d) of the Act states the objective
of “…see[ing] that families are reunited in Canada.”
B. The humanitarian component – As a signatory
to the Convention relating to the Status of Refugees and the
Convention Against Torture, Canada hears and decides claims for
protection made by people arriving spontaneously in the country. It
also assists people overseas by accepting for permanent residence government-assisted
and privately sponsored refugees and others in need of protection.
Objectives 3(2)(b) and (d) of the Act state the objectives of “…fulfil[ling]
Canada’s international legal obligations with respect to refugees and
affirm[ing] Canada’s commitment to international efforts to provide
assistance to those in need of resettlement”; and “offer[ing]safe haven
to persons with a well-founded fear of persecution based on race, religion,
nationality, political opinion or membership in a particular social
group, as well as those at risk of torture or cruel and unusual treatment
C. The economic component– Canada wishes to attract skilled
workers and business immigrants who will contribute to the economic life
of the country and fill labour market needs. Objective 3(1)(c) states
the objective of “… support[ing] the development of a strong and prosperous
Canadian economy ….”
To the above principal objectives of the program may be added several other
factors. Canada sees itself as a nation of immigrants. Immigrants at the
turn of the 20th century settled the West; after World War II
they arrived in our largest cities and contributed substantially to building
those cities’ physical infrastructure and enriching their cultural life.
In accepting thousands of Indochinese refugees in 1979-1980, Canadians became
more attuned to the plight of refugees and their needs. Thus, our history
has made Canadians generally more accepting of immigrants and refugees,
and of the multicultural society that results. These views are less common
in countries without that history.(23)
Immigration for Social Purposes – The Family Class
As mentioned above, one of the objectives of Canada’s immigration program
is to reunite families. Family class immigration reached a high of 110,563
in 1993, before beginning to decline. The projection for arrivals in 2002
is 56,000-62,000 family members.(24)
It should be noted, however, that those figures do not include family members
who accompany a principal applicant to Canada upon initial immigration;
nor do they include those dependent family members of refugees selected
abroad and who may be processed as part of the same application for permanent
residence for up to one year. Thus, the family component of the immigration
program is larger than the figures for the “family class” would suggest,
and the economic program (in the sense of the number of individuals actually
selected for economic reasons) is smaller.
The relationships that are part of the family class are found in the following
Members of the Family Class
Spouses, common-law partners, and conjugal
Children intended for adoption.
Parents, grandparents, and their dependent
Brothers, sisters, nephews, nieces or grandchildren
if they are: orphaned, not a spouse or common-law partner, and
Any relative if the sponsor is alone in Canada
and has none of the above family members to sponsor.
There are some significant changes to the family class in the new Act:
Immigration for Humanitarian Purposes – Refugees
and Those in Refugee-like Situations
Selection of Refugees Abroad
For many years, Canada has fostered the resettlement of refugees and those
in refugee-like situations through private and government sponsorships.
Among other changes, the new regulations clarify the process for private
sponsorships and institute a requirement for either a sponsorship undertaking
or a referral from an organization like the United Nations High Commissioner
for Refugees (although there are exceptions to that rule). There continue
to be three categories of refugees or people in similar situations who may
be admitted to Canada as permanent residents on humanitarian grounds. These
three groups are:
The Convention Refugees Abroad Class – Members of
this class must be in need of resettlement (that is, there is no reasonable
prospect now or in the near future of another permanent solution for them)
and must meet the definition of Convention refugee: they must be outside
their own country and have a well-founded fear of persecution for reasons
of race, religion, political opinion, nationality or membership in a particular
group. They may be sponsored privately or assisted by the government.
The Country of Asylum Class – Members of this class
must be in need of resettlement, be outside their own country and must
have been, and continue to be, seriously and personally affected by civil
war, armed conflict or a massive violation of human rights. There is
no government sponsorship available for members of this class.
The Source Country Class
– Members of this class must be in
need of resettlement and must be living in one of the countries that meet
specified criteria. The list of countries is found in a schedule to the
Members must be
seriously and personally affected by civil war or armed conflict in that
country, must have been detained or imprisoned as a result of legitimately
expressing themselves or exercising their civil rights, or meet the definition
of Convention refugee.(28)
The Refugee Status Determination System in Canada
The current refugee status determination system, and the Immigration and
Refugee Board, began operation in 1989. The system was modified by legislation
passed in 1992 and 1995, and further modified by the 2001 Immigration
and Refugee Protection Act.
The refugee protection system must balance a number of factors. The law
must embody the essence of the Convention Relating to the Status of Refugees,
and its Protocol, which Canada signed in 1969. This requires signatories
not to return people in any manner whatsoever to the frontiers of territories
where their lives or freedom would be threatened on account of their race,
religion, nationality, membership in a particular social group or political
opinion. The law must also reflect Canada’s obligation under the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Of crucial importance is the Canadian Charter of Rights and Freedoms.
In 1985, the Supreme Court of Canada ruled that the Charter protected refugee
claimants, and since that time there have been a number of important decisions
affecting both the substance and procedures of immigration and refugee law.
At the same time, the law regarding refugee claimants must be stringent
enough to counteract the perception that Canada does not have control of
its borders. The government has long feared that, without control, support
for all immigration and refugee programs would be endangered. Moreover,
following the events of 11 September 2001, there has been significant pressure
to put in place legal and administrative measures to respond to American
fears that the United States is more vulnerable because of perceived weaknesses
in the Canadian immigration and refugee protection system.
It is the government’s view that control of the number of claimants in
Canada is operationally essential as well, given the great number of potential
claimants worldwide.(29) Thus, deterring
the arrival of new claimants in Canada by a variety of means is an important
government goal.(30) The contradiction
between Canada’s having a refugee status determination system recognized
as one of the best in the world, at the same time as strenuous attempts
are made to block access to it, is real and irresolvable.
The previous Immigration Act contained only provisions relating
to claims for Convention refugee status. Other grounds for protection had
developed over time in the regulations and in administrative practice, and
were required by the case law. The Immigration and Refugee Protection
Act consolidates this broader focus, using the term “claim for refugee
protection.” Those who are successful are called “protected persons,” being
either “Convention refugees” or people “in need of protection.” Jurisdiction
over protection decisions is still divided between the Immigration and Refugee
Board and Citizenship and Immigration Canada, but the Board’s mandate was
widened with the new Act.
Not everyone may make a claim to protection in Canada. Ineligibility criteria
are applied by immigration officers (employees of Citizenship and Immigration
Canada), and serve to exclude from referral to the Board those under a removal
Claimants who have made claims previously that the Board has rejected,
or who have made claims that were ineligible, withdrawn or abandoned;(31)
Claimants who have been found to be inadmissible on grounds of security,
violating human or international rights,(32)
or serious or organized criminality. The ground of organized criminality
is new as a specific category. Serious criminality is defined as either:
(a) a conviction in Canada that carries a maximum punishment of 10 years
or more, and for which a sentence of two years or more was imposed; or
(b) a conviction outside Canada that, if committed in Canada, would carry
a maximum punishment of 10 years or more, and the Minister is of the opinion
that the person is a danger to the public;(33)
Those who come, directly or indirectly, from a country designated by
the regulations as a “safe third country” (although those words are not
in the statute). The Act establishes criteria that must be applied when
drawing up agreements with other countries regarding responsibility for
determining claims, and for designating countries.
The events of 11 September 2001 provided an impetus for Canada and the
United States to reach an agreement on which country would be responsible
for examining claims in cases where the claimant entered from the other
country.(34) By early July 2002 a
draft was ready for consultation, and a final version was initialled at
the end of August. The Agreement embodies the general principle that claimants
should have their claims examined by the first of the two countries in which
they are physically present. It covers arrivals only at land border ports
of entry. Another agreement, which the United States is reported to have
insisted on as a condition of the main Agreement, will see Canada resettle
up to 200 individuals at the request of the United States.(35)
Provisions governing the return of refugee claimants to a safe third country
have been in the law since 1989, but were never implemented. With the coming
into force of the U.S.-Canada agreement, such return will become possible.
Advocates for refugees in Canada (and in the United States) have always
been staunchly opposed to the safe country provisions, and remain so. In
addition to being opposed in principle – they argue that claimants should
be permitted to choose their country of asylum – they feel that in a number
of respects the Canadian system is fairer to claimants. They point to the
higher rates of detention in the United States, detention that is often
in the same facilities as criminals; to the restricted ability to work pending
hearings; to time restrictions on making a claim; to an interpretation of
the Refugee Convention that is often more restrictive than that in Canada;
and to the wishes of francophone claimants. In addition, claimants in Canada
have more access to legal aid, and to social assistance if needed.
Advocates predict potential logjams on both sides of the border as officials
try to sort out whether the family relationships that would permit entry
can be established. They also fear that because the Agreement applies only
to those claims made at the border, claimants will resort to smugglers to
get them into the country illegally. Once in Canada, they can make a claim
without fear of being returned to the United States.
Pre-Removal Risk Assessment
In addition to the refugee determination process, the Act now contains
a process called the pre-removal risk assessment (PRRA) that permits most
individuals to apply to specialized departmental officials for protection
before actually being removed from Canada. For example, a claimant for
refugee protection whose claim was rejected by the Immigration and Refugee
Board may make a protection application on the ground that there is new
evidence, or evidence that it was not possible or reasonable to provide
at the original hearing.
In many cases, the test for risk will be broad: the grounds in the Refugee
Convention, the Convention on Torture, and the risk to life or the risk
of cruel and unusual treatment or punishment. If protection is granted,
those individuals are allowed to apply for permanent residence. In specified
cases, including those inadmissible to Canada on grounds of security, organized
or serious criminality, and violating human or international rights, the
test is more narrow, and a successful application results only in a stay
of removal. In making the decision in these kinds of cases, questions relating
to any danger to the public in Canada on criminal or security grounds, and
the nature and severity of the acts committed by the person, must be considered.
The regulations establish strict timelines for making a protection application
and submissions.(36) Although normally
PRRA decisions will be made without oral hearings, the regulations establish
the criteria as to when a hearing is required. The criteria relate to the
person’s credibility and go directly to the essence of the risk he or she
claims to fear, and how central the person’s evidence is to the protection
Immigration for Economic Purposes
In recent years, some doubts have been expressed about the size and efficacy
of the explicitly economic side of the immigration program. The principal
concerns expressed by commentators and the government arise from two differing
perspectives. First, as noted above, the retirement of the baby boom generation
beginning in this decade has led to fears that our workforce will not be
sufficiently large or skilled to enable us to maintain our standard of living
and support the growing numbers of aging Canadians. At the same time, shortages
of skilled and professional workers in some fields have already been identified,
and are predicted to continue. Immigration is seen by many as at least
a partial solution to these problems.
The other perspective notes that some economic immigrants in recent years
have not been as successful economically as we, and they, would have hoped.
The selection system was also criticized on the grounds that it was not
objective or transparent, was open to manipulation and was too inflexible.
As a result, for the last decade Citizenship and Immigration Canada tried
to devise a selection system that would respond better to Canada’s needs,
increase the likelihood of economic immigrants establishing themselves successfully,
and increase the speed with which they could do so.(37)
The new system, described as a “human capital approach” came into force
with the new Act. Some commentators have noted, however, that until problems
with the recognition of foreign credentials and training are solved, and
employers become more willing to hire new immigrants, their settlement potential
may well continue to be compromised.
Concerns were also voiced about the integrity of the investor and entrepreneur
Skilled workers are independent immigrants selected to contribute to the
economy through their education, skills and training. To qualify as a skilled
worker, the applicant must have worked for at least one year within the
last 10 in one of the specified skill types or levels as set out in the
National Occupational Classification.(38)
Essentially, this means they must have worked as a manager, or held employment
requiring college, university or technical training; they must also show
proof of a specified level of funds available to support themselves when
they arrive in Canada, unless they have already arranged employment. The
selection grid (“points system”) then regulates their admission.(39)
Officers retain the discretion to substitute their own assessment, positively
or negatively, when they feel that an applicant’s point total does not accurately
reflect his or her potential for successful establishment.
The new selection grid awards points for education, language ability,
employment experience, age, arranged employment and adaptability. Gone
is the subjective assessment of “personal suitability,” replaced by a menu
of five objective factors (worth from 3 to 5 points), with a maximum of
10 points. Gone also is the arbitrary “levels control” factor, replaced
by the ability of the Minister to change the pass mark as needed.
Eliminating the former occupations list from the selection grid means
that the number of job categories is much greater. Critics of the new grid,
however, fear that the stringent requirements of the various factors, combined
with a pass mark of 75, will make it very difficult to immigrate to Canada
as a skilled worker.
One extremely contentious issue when the regulations for the new Act were
first made public was the proposal that the new selection grid apply to
all those in the existing inventory at the time the regulations were pre-published
– a sizeable number. The following transitional rules are a compromise
between that position and those who argued that the entire inventory should
be processed under the former rules.(40)
Business Immigrants (41)
There are three categories of business immigrant: investors, entrepreneurs
and the self-employed.
Investors are required to demonstrate that they have business experience
according to an objective standard, and have accumulated a net worth of
at least $800,000 by legal means. They must deposit $400,000 with the federal
government, which distributes the money to participating provinces for investment.
Investors receive no interest on the money, which they receive back in full
after five years.(42)
Entrepreneurs are also required to demonstrate that they have business
experience, by having managed and controlled a business at a defined level,
and have accumulated a net worth of at least $300,000 by legal means. Their
admission as permanent residents is conditional on owning at least one-third
of a Canadian business (as defined in the regulations) and creating at least
one full-time job for a person unrelated to them. They must actively participate
in the management of that Canadian business for at least one year.
Both entrepreneurs and investors are subject to a modified selection grid,
which awards up to 35 points for their business experience, and also awards
points for age, education, language and adaptability.
Individuals may be admitted in the self-employed category if they will
make a significant contribution to the cultural, artistic or athletic life
of Canada,(43) or if they will manage
a farm in Canada.
Since 1998, there has been an effort by the federal and provincial governments,
through the provincial nominee program, to meet the specific labour market
or investment needs of individual provinces other than Quebec.(44)
Eight provinces and territories now have agreements under which they may
nominate prospective immigrants using their own criteria.(45)
The federal government then processes their applications, with most being
accepted.(46) Although the numbers
are small at present,(47) the provinces
are hopeful that this program will be a useful tool to meet their regional
employment and demographic needs.
The Live-in Caregiver Program has existed in its current form since 1994.
Its purpose is to supply a need for caregivers that cannot be met by the
Canadian labour force alone. The need is primarily for caregivers for children,
but also for the elderly and disabled people. The caregivers live in the
employer’s home. Caregivers (largely women) come to Canada on temporary
work permits; the incentive is that if they successfully complete two years
of care giving within three years of arriving in Canada, they may apply
for permanent residence.(48)
To qualify as a caregiver, applicants must have completed the equivalent
of a Canadian secondary school education,(49)
and have either trained for six months in a classroom setting or worked
for 12 months in a care-giving position. They must also have a sufficient
level of official language ability. With the new regulations, there is
also a requirement for a written contract of employment between employers
and caregivers. This is an attempt by the government to respond to numerous
reports of exploitation by employers; it remains a fact, however, that
caregivers residing in their employers’ homes are a potentially vulnerable
Any person who wishes to challenge a decision, a determination or an order
made under the Immigration and Refugee Protection Act, whether made
in Canada or abroad, may make an application to the Federal Court – Trial
Division. Leave, or permission, is required for the application to proceed.
All applications for leave to apply for judicial review are decided by one
judge, normally without personal appearance by the parties. There is no
appeal from a decision on a leave application.
The grounds for judicial review are those set out in the Federal Court
Act. They are that the body or person:
Applicants who succeed in their leave applications are able to appeal the
actual decision on judicial review to the Federal Court of Appeal only if
the Trial Court Judge certifies at the time of rendering judgment that a
serious question of general importance is involved and states the question.
People who breach the Act may be issued an order for their removal from
Canada. As with the former Act, there are three kinds of removal orders:
Departure orders. These require a person to leave Canada within
30 days, and to confirm their departure with an immigration officer.
If they comply, they may return to Canada at any time. If they do not
comply, the departure order automatically becomes a deportation order.
Exclusion orders. People who have been removed under an exclusion
order may not legally return to Canada for one year unless they have the
written permission of an immigration officer. In cases of misrepresentation,
the time period is two years.
Deportation orders. These apply to the most serious cases;
those removed under a deportation order may not legally return to Canada
unless they have the written permission of an immigration officer.
Individuals who do not have status in Canada who make a claim for refugee
protection will receive a removal order that will not come into force until
their claim is decided. Although some removal orders may be appealed to
the Immigration Appeal Division, others may not, including those based on
inadmissibility on grounds of security, violating human or international
rights, serious criminality or organized criminality. Serious criminality
is defined as a crime that carries a maximum term of imprisonment of 10
years and for which the person received a term of imprisonment of at least
There is no question that the issue of removals receives a significant
amount of public attention. In some cases, removal orders are not executed;
in others, there is what is often perceived as an inordinate delay; in still
others, people are removed, but later manage to return to Canada. In some
situations, the reasons for delays or non-removals are clear and usually
In other situations, delays or non-removals may be harder to explain.
People may evade apprehension despite being included in nation-wide data
banks. Travel documents may be difficult to obtain from the country to
which the person will be removed, a difficulty that may be increased if
the person has managed to hide his or her identity or even citizenship.
Appeals and judicial reviews may last literally for years in some cases.
In addition to the above difficulties, the Standing Committee on Citizenship
and Immigration identified another serious problem in a 1998 report.(52)
The Committee found that Citizenship and Immigration Canada suffered from
a serious lack of data relating to enforcement. This makes it impossible
to accurately track people subject to, or potentially subject to, removal.
While noting that the modernization of computer systems had begun, the Committee
recommended (among numerous other recommendations) that the Department make
the development of modern information technology tools to support the enforcement
function its highest priority.
Finally, court decisions affect the government’s ability to remove people.
See in particular the Pushpanathan case in Appendix 6.
THE ROLE OF
THE PROVINCES IN IMMIGRATION
Section 95 of the Constitution Act, 1867 gives the federal government
and the provinces concurrent legislative powers over immigration. The provinces
are limited in that any laws they may pass must not be “repugnant to any
Act of the Parliament of Canada.”
The Immigration and Refugee Protection Act contains several provisions
relating directly or indirectly to the provinces. One of the objectives
of the Act is “to support the development of a strong and prosperous Canadian
economy in which the benefits of immigration are shared across Canada.”
The Act requires the Minister to consult the provinces regarding yearly
immigration levels, the distribution of immigrants throughout Canada, and
measures to facilitate their integration. The Minister may consult with
the provinces on immigration and refugee protection policies so as to facilitate
cooperation and be aware of the effect of federal policies on the provinces.
The Act permits the Minister to enter into agreements with the provinces.
Most provinces have entered one or more agreements with the Minister, including
the provincial nominee agreements discussed above. The Canada-Quebec Accord,
which came into effect in April 1991 (replacing the former Cullen-Couture
Agreement), is by far the most extensive.
Under the Accord, Quebec sets its own immigration levels, establishes
the financial criteria for sponsors, and selects independent immigrants,
for whom Quebec has developed its own points system. Both the federal and
provincial grids have many of the same features, with points for age, education,
employment experience and so on.
The Quebec grid also contains a number of factors not previously present
federally. Spouses can boost Quebec applicants’ points by up to 16 depending
on their knowledge of French, education, occupation and age. The new federal
grid has a potential for a spouse to contribute 10 points to the principal
applicant’s score. In the Quebec grid, but not federally, there are up
to 8 points available for families with children, depending on their ages.
Under the Canada-Quebec Accord, Quebec assumed control of all settlement
and integration programs for immigrants destined to that province. Canada
agreed to transfer money to Quebec for those programs: $75 million in the
initial year (1991-1992), rising to $90 million for 1994-1995. The amount
of money is now set by means of a formula, but $90 million is the minimum
amount receivable. For 2002-2003, the transfer is $106.7 million.
With a large proportion of immigrants to Canada coming from developing
countries and often speaking neither English nor French, services to assist
them to settle in and adapt to Canada have become an important part of the
immigration program. Such services have been particularly important as
levels have risen.
Some of these programs have been delivered by Citizenship and Immigration
Canada itself, but most are delivered by private sector organizations, funded
by the Department. The Department has also entered into agreements with
British Columbia and Manitoba, which have assumed the direct administration
and delivery of settlement programs. In the other provinces, the federal
government continues to deliver the programs through service provider organizations.(53)
The following is a brief description of current (non-Quebec) settlement
programs. The figures provided below are taken from the 2002-2003 Estimates
of Citizenship and Immigration Canada. The government also provides
some money directly to the provinces to assist them in carrying out their
own programs benefiting newcomers.
An ability to speak one of Canada’s official languages is an extremely
important part of an immigrant’s ability to settle successfully in Canada.
Language Instruction for Newcomers to Canada (LINC) is a broadly based program
available to all adult immigrants, whether destined to the labour market
or not. The classes are made as accessible as possible. Immigrants may
attend full-time or part-time for up to three years. Childminding is provided
and transportation costs can be covered. Expenditures of $100.4 million
are projected for LINC in 2002-2003.
Immigrant Settlement and Adaptation Program – ISAP
ISAP provides funding to not-for-profit organizations and educational institutions
that offer direct services to immigrants, largely refugees, to enable them
to settle in Canada as fast as possible. Services include reception and
orientation, paraprofessional counselling, information, translation and
interpretation, referral to other community agencies and help with finding
employment. ISAP also funds professional development activities for settlement
workers, including training and conferences. Expenditures on this program
are expected to be approximately $25.5 million in 2002-2003.
Resettlement Assistance Program – RAP
The RAP provides for immediate services, such as reception houses, to government-assisted
refugees and humanitarian cases on their arrival, and financial support
for up to one year, with support for up to two years available for those
with special needs. The need for assistance is assessed by subtracting
the individual’s basic costs from his or her available income and assets
and applying the rates for welfare assistance that apply in that province.
Some $45 million will be spent on this program in 2002-2003.
The Host Program
The Host Program, now available to all immigrants, began as the Host Program
for Refugee Settlement. It was an attempt to give government-assisted refugees
some of the advantages of the increased social contacts and assistance enjoyed
by privately sponsored refugees by matching them to host groups of volunteers
in various cities. Studies show that the settlement process is enhanced
by such measures, particularly in the area of language skills. In 2002-2003,
approximately $2.8 million will be spent on this program.
Immigrant Loans Program
This program provides loans to assist sponsored refugees and other protected
persons to come to Canada. The regulations set a limit on the loan fund
of $110 million. The loan may cover such things as the cost of medical
examinations as part of the selection process, and transportation to Canada.
Interest is payable on the loans, and the regulations provide a repayment
schedule that varies with the amount of the loan.
The settlement and integration of new immigrants raises many important
questions. Some of these are briefly reviewed below.
It has been long been the case that immigrants tend to settle
disproportionally in Canada’s larger centres. The right to take up residence
anywhere in Canada is guaranteed to permanent residents by section 6 of
the Canadian Charter of Rights and Freedoms. The statistics tell
the story: close to 60% of all immigrants settle in Ontario, almost 50%
in Toronto. Close to 30% settle in Montréal and Vancouver. Various suggestions
have been made over the years as to how encourage immigrants to settle elsewhere
in the country in order to ensure that the benefits of immigration are more
evenly distributed, but little progress has been made. As noted, there
are hopes that the provincial nominee programs in the various provinces
will help provinces that wish to use immigration to help meet their economic
and demographic needs.
A recent proposal by the Minister of Citizenship and Immigration would
see the admission of some skilled workers on condition that they reside
in a particular area of the country for a period of perhaps three to five
years. They would then be eligible for permanent residence. In response
to the proposal, questions have been raised about such individuals’ situation
should they become unemployed through no fault of their own. It has also
been noted that it is very difficult to remove people and their families
from the country after a certain period of time, without compelling reasons
relating to criminality or security concerns.
2. Who Should
In the mid-1990s, Citizenship and Immigration Canada concluded
that the provinces were best placed to administer settlement services.
It hoped to enter into agreements with all of the provinces to this effect,
accompanied by appropriate funds. One result would have been to reduce
the federal-provincial overlap with programs in provinces that receive a
large number of immigrants and operate their own settlement programs.
As noted above, the government was successful in reaching agreements only
with British Columbia and Manitoba. Elsewhere (excluding Quebec) the federal
government continues to administer the programs. Thus, Ontario, which receives
almost 60% of all immigrants to Canada, has no settlement agreement; indeed,
alone of all the provinces, Ontario has no immigration agreements at all
with the federal government.
Recognition of Foreign Credentials and Experience
The best selection system in the world will ultimately be
of little benefit to Canada if a significant number of our economic immigrants
are unable to use their education and experience because their credentials,
training or experience are not recognized, because inadequate assessment
processes are in place, or because suitable upgrading programs have not
No one suggests this problem is new, or easy to solve.(54)
It has been the subject of a number of studies, and anecdotes about the
hardships caused to individuals abound. Immigrants in the past might have
been willing to make sacrifices in the hope that that their children and
grandchildren would prosper, but we should not expect today’s highly educated
and skilled independent immigrants to do the same. Estimates of the economic
value lost by undervaluing the skills of immigrants range as high as $15
VISITOR VISAS (56)
Visitors to Canada are people (other than Canadian citizens and permanent
residents and certain other specified individuals) who wish to enter Canada
for a limited period of time. The category includes tourists, students
and workers. All visitors to Canada require a temporary resident visa except
those who are exempt under the regulations. The citizens of almost 150
countries require visas to visit Canada or transit the country. Transportation
companies can be subject to substantial fines for transporting individuals
without the required documents.
Visas are issued upon application at posts abroad, although a visa itself
represents only pre-screening by the visa officer and does not guarantee
admittance to the country. The immigration officer at the port of entry
takes that decision. Visitors who wish to stay longer than their visa allows
may apply for an extension in Canada.
In assessing whether to issue a visa, the officer abroad must form an
opinion as to whether the applicant is bona fide and will actually leave
the country at the appropriate time. He or she must also screen applicants
on security, criminal and health grounds. Certain visitors are required
to undergo a medical examination before a visa is issued: visitors for longer
than six months, those proceeding from certain designated areas of the world
with a higher incidence of communicable disease than Canada, workers whose
employment will be of such a nature as to involve the public health, and
There is no question that the visitor visa system is intended to function
as one of the country’s main defences against illegal migration. The visa
system is costly to operate and a visa requirement is imposed only when
immigration control problems develop in relation to arrivals in Canada from
a specific country. Following the events of 11 September 2001, there has
also been pressure to coordinate visa requirements with the United States.
Visa officers abroad normally operate by applying profiles of the kind
of individuals not likely, in their view, to be bona fide visitors. For
example, an unemployed, single, young male from a developing country may
not be successful in his application for a visitor visa. In contrast, a
well-established businesswoman in her fifties with property in her home
country would likely encounter few difficulties.
Such “profiling” is no doubt an essential tool for visa officers, who
must quickly process a great number of these applications (many posts offer
same-day service), but it is undeniably a broad brush. Indeed, another
word for “profiling” might be “stereotyping” and it can lead to the rejection
of bona fide applications. For this reason, the system has been criticized
as arbitrary; it may, in fact, prove difficult in individual cases to establish
the reasons for rejection of an application. The question of profiling
has become particularly sensitive since 11 September 2001 because it
has become identified with racial profiling.
The use of visitor visas has also been controversial because of its link
with the refugee system. The visa system makes no distinction between citizens
of those countries producing genuine refugees attempting to flee oppression
and those whose citizens are using the refugee system as a convenient way
into the country. Advocates for refugees have therefore long been critical
of the requirement of visas for citizens of refugee-producing countries.
On the other hand, government officials maintain that it is a legitimate
government policy to apply visas whenever control problems arise, and to
deal with citizens of refugee-producing countries through normal refugee
selection procedures abroad and special programs when needed.(57)
(1) The report’s authors were Susan
Davis, Roslyn Kunin and Robert Trempe.
(3) Only a very small number of
the refugee claims made by the 1999 Chinese boat arrivals were accepted.
(6) By that date, the bill was under
consideration in the Senate.
(7) See the Declaration
and accompanying documents, including updates on progress.
(9) Statistics Canada,
The Daily, “Births”.
The “fertility rate” is a hypothetical figure that represents the
total number of children born on average to each woman aged 15 to 49.
Canada’s rate fell from 3.8 in 1960 to 1.65 in 1987, rising slowly to
about 1.7 in 1992, but hovering around 1.6 for the rest of the 1990s.
Replacement level for Canada is considered to be 2.1 children per woman.
The last year that this level was achieved was 1971.
(15) House of
Commons, Standing Committee on Citizenship and Immigration, Competing
for Immigrants, June 2002, p. 2.
(16) Health and
Welfare Canada, Charting Canada’s Future, A Report of the Demographic
Review, 1989, pp. 19-21.
(17) In the long term, however,
immigrants still outperform native Canadians.
(18) It may be noted, however,
that the United States has a significantly higher fertility rate than
(19) S.C. 2001, C. 27. In force,
for the most part, on 28 June 2002.
and Refugee Protection Regulations
, SOR/2002-227, in force (with some
exceptions) on 28 June 2002.
(22) Net immigration
takes into account those who leave the country, as well as those who arrive.
The other countries with significant immigration programs are the United
States, Australia and New Zealand; Israel is usually treated as a special
(23) It should
be noted that, with the exception of the Western movements 100 years ago,
Canadian immigration in the 20th century, and continuing today, has been
primarily an urban phenomenon.
(24) These figures
are broken down into spouses and children (37,000-41,000) and parents
and grandparents (19,000-21,000).
(25) A common-law
partner of a sponsor is a person who is cohabiting in a conjugal relationship
with the sponsor and the cohabitation has been for a period of at least
one year. If a conjugal relationship has existed for at least one year
but without cohabitation because of persecution or penal control, the
common-law relationship is still considered to exist. A conjugal partner
of a sponsor is a person who resides outside of Canada who has been in
a conjugal relationship with a sponsor for at least one year.
under 22 who are not a spouse or common-law partner at the relevant time;
children 22 and over who are full-time students or dependent on their
parents by reason of a physical or mental disability.
Columbia, Democratic Republic of Congo, El Salvador, Guatemala, Sierra
Leone and Sudan.
in the last two groups are together referred to as “humanitarian – protected
persons abroad” in the regulations. These humanitarian classes of people
were first established in 1997.
(29) The number of claims to refugee
status in Canada since 1980 is found in Appendix 4.
(30) Methods includes
the imposition of a visitor visa requirement on individuals from countries
that produce significant numbers of claimants; fines and charges for
transportation companies that bring undocumented individuals to Canada;
and a network of immigration control officers overseas who work with airlines
to prevent those without valid documents from boarding aircraft.
a new claim could be made after the person was outside Canada for 90 days.
Withdrawn claims had no such requirement. Now, after six months outside
Canada, individuals may make only an application for a pre-removal risk
assessment (see below).
to be ineligible on security or human rights grounds, the Minister had
to be of the opinion that it would be contrary to the public interest
to have the claim determined.
the danger opinion also applied to convictions in Canada; now, a prison
sentence of two years or more serves as a proxy for serious criminality
in the Canadian context.
(34) A previous attempt had foundered
in the mid-1990s.
(35) Article 9
of the Agreement states: “Both Parties shall, upon request, endeavour
to assist the other in the resettlement of persons determined to require
protection in appropriate circumstances.” It has been speculated that
these individuals will be those held in detention by the United States
in areas other than its own territory.
who file their applications within the required time limits receive an
automatic stay of removal. Applicants who do not, or who have filed subsequent
applications, do not receive an automatic stay.
(37) In November
1995, the Minister of Citizenship and Immigration had announced significant
changes to the selection system. The proposals were strongly criticized
and were dropped. The former “Occupations List,” the tool to identify
occupations currently in demand in Canada, had not been revised since
1997. In late 1998, the Department produced a research paper on the selection
system, followed by two consultation papers (in 1999 and 2000). At every
stage, consultation took place with provincial governments, industry groups,
labour, regulatory bodies, immigration practitioners, and others with
an interest in immigration matters.
(38) There is
also the possibility of designating occupations as restricted should there
be too many applicants and thus a possible disruption of the Canadian
(39) The selection
system also plays a role in the selection of business immigrants, but
to a much smaller degree. Note that Quebec has its own points system.
See Appendix 5 for the selection grid.
was also made for applicants to withdraw an application and receive a
refund if their applications had been at an early processing stage.
(41) Quebec has different rules.
(42) The “cost”
of the investment to the investor, therefore, is typically the amount
it costs to borrow $400,000 for five years.
(43) They must
have either been self-employed in cultural or athletic activities or have
participated in such activities at a world-class level.
(44) See below for details regarding
the Canada-Quebec Accord.
(45) They are:
Alberta, Manitoba, Newfoundland and Labrador, New Brunswick, Prince Edward
Island, Saskatchewan, Nova Scotia and Yukon.
requirements relating to health, criminality and security apply; officers
will typically accept nominees who may not meet the federal selection
system by using positive discretion.
(47) The projected level for the
provincial nominee program in 2003 is 2,500-4,000 immigrants.
must hold a work permit that specifies the employer; they may change employers,
but must apply for a new work permit that reflects the changed employment.
(49) It is recognized
that after they obtain permanent residence, most will move into the general
labour market. Thus, a high school education is the minimum.
(50) For an overview of immigration
and refugee case law, see Appendix 6.
(51) Denying appeal
rights for serious criminality is a new feature in the law. Previously,
in order to deprive a person of appeal rights on the ground of serious
criminality, an opinion was required of the Minister that the person posed
a danger. Lawyers who practise criminal and immigration law have noted
that the two-year provision is having unintended effects in the criminal
justice system, including: individuals refusing bail in order to increase
pre-trial incarceration (which counts double in sentencing); individuals
attempting to delay trials for as long as possible; encouraging plea bargains
with sentences of less than two years; inmates committing in-prison crimes
as release dates approach in order to prolong their time in Canada; and
deportation of long-standing residents without consideration of their
time in Canada, the circumstances of their offence, or their knowledge
of the country to which they will be deported.
(52) Immigration Detention
and Removal, June 1998.
(53) As noted
previously, Quebec is entirely responsible for settlement and integration,
with money granted by the federal government for that purpose.
(54) The regulation
of professions and trades is largely a provincial matter, with over 400
(55) Jeffery Reitz,
“Immigrant Skill Utilization in the Canadian Labour Market: Implications
of Human Capital Research,” Journal of International Migration and
Integration, March 2002.
(56) The new name
under the Act is “temporary resident visa,” but it is likely that the
term “visitor visa” will have staying power.
(57) Certain countries
in the world, notably Australia and the United States, have a virtually
universal visa system, although Australia exempts New Zealand and the
United States exempts Canada from the requirement. The U.S. Visa Waiver
Program also permits visa-free visitor entry under specific conditions
to the nationals of some 30 other countries. Canada has resisted the
idea of a close-to- universal visa requirement on the grounds of both
cost and lack of necessity.
ANNUAL LANDINGS, 1962-2002
(projected range) 2003
Sources: Citizenship and Immigration Canada, Facts
and Figures 2001, Immigration Overview, p. 3. Citizenship and Immigration
Canada, Pursuing Canada’s Commitment to Immigration, 2002, Appendix
2003 IMMIGRATION PLAN
•Spouses, partners and children
•Parents and grandparents
•Refugees landed in Canada
TOTAL PROTECTED PERSONS
TOTAL IMMIGRANTS AND PROTECTED PERSONS
Source: Citizenship and Immigration Canada, Annual Report to Parliament
on Immigration 2002, http://www.cic.gc.ca/english/pub/immigration2002.html.
GOVERNMENT-ASSISTED AND PRIVATELY SPONSORED REFUGEES
(CHOSEN ABROAD), 1990-2001
(Principal Applicants and Dependants)*
2,700 - 3,700
2,700 - 4,000
2,800 - 4,000
2,800 - 4,000
2,800 - 4,000
2,800 - 4,000
2,800 - 4,000
Source: Citizenship and Immigration Canada, Facts and Figures,
REFUGEE CLAIMS IN CANADA, 1980-2001
Number of Claims
Number of Claims decided by
IRB after a hearing
Positive Decisions by IRB
(as % of all claims not abandoned or withdrawn)
Sources: Compiled from: Immigration and Refugee Board (IRB), CRDD
Refugee Status Determinations, Calendar Year, supplied to author.
* Number of claims referred to the IRB from 1989 on.
NOTE: There are two different methods of calculating the recognition rate
of Convention refugees, and they produce distinctly different results.
The above calculation subtracts the number of withdrawn, abandoned, or other
claims in calculating the recognition rate. This is thought to provide
a more accurate picture of the recognition rate of serious claims, that
is, those that actually went to a hearing. Many claimants file a claim
and then disappear. It may be thought misleading to treat those claims
as negative decisions.
In contrast, the Board includes withdrawn, abandoned and other claims in
computing its recognition rate. The Board’s recognition rates, using this
method, are as follows:
1989 – 84%
1990 – 77%
1991 – 69%
1992 – 60%
1993 – 46%
1994 – 60%
1995 – 57%
1996 – 44%
1997 – 40%
1998 – 44%
1999 – 46%
2000 – 48%
2001 – 47%
FEDERAL SKILLED WORKER SELECTION GRID
GRILLE DE SÉLECTION DES TRAVAILLEURS QUALIFIÉS (FÉDÉRAL)
Ph.D., or Masters AND
at least 17 years of completed full-time or full-time equivalent
Doctorat, ou maîtrise ET au moins 17 années d’études à temps
plein complètes ou l’équivalent temps plein
Two or more university degrees
at the Bachelor’s level AND at least 15 years of completed
full-time or full-time equivalent study/
Deux diplômes universitaires ou plus au niveau du baccalauréat ET
au moins 15 années d’études complètes à temps plein ou l’équivalent
A two year university degree
AND at least 14 years of completed full-time or full-time
Un diplôme universitaire obtenu après deux années d’études ET
au moins 14 années d’études à temps plein complètes ou l’équivalent
A one year university degree
AND at least 13 years of completed full-time or full-time
Un diplôme universitaire obtenu après une année d’études ET
au moins 13 années d’études à temps plein complètes ou l’équivalent
| Trade or non-university certificate
Certificat ou diplôme de compétence non-universitaire
A three year diploma, trade
certificate or apprenticeship(1) AND at least
15 years of completed full-time or full-time equivalent study/
Un diplôme, certificat de compétence ou d’apprentissage(1)
reçu après trois années ET au moins 15 années d’études à
temps plein complètes ou l’équivalent temps plein
A two year diploma, trade
certificate or apprenticeship AND at least 14 years of completed
full-time or full-time equivalent study/
Un diplôme, certificat de compétence ou d’apprentissage obtenu après
deux année ET au moins 14 années d’études à temps plein complètes
ou l’équivalent temps plein
A one year diploma, trade
certificate or apprenticeship AND at least 13 years of completed
full-time or full-time equivalent study/
Un diplôme, certificat de compétence ou d’apprentissage obtenu après
une année ET au moins 13 années d’études à temps plein complètes
ou l’équivalent temps plein
A one year diploma, trade
certificate or apprenticeship AND at least 12 years of completed
full-time or full-time equivalent study/
Un diplôme, certificat de compétence ou d’apprentissage obtenu après
une année ET au moins 12 années d’études à temps plein complètes
ou l’équivalent temps plein
| High School Diploma/
Diplôme d’études secondaires
Secondary School educational
Diplôme d’études secondaires
1er langue officielle
High proficiency (per ability(2))/
Bonne connaissance (par aptitude(2))
Moderate proficiency (per
Connaissance moyenne (par aptitude)
Basic proficiency (per ability)/
Connaissance de base (par aptitude)
1 to maximum
de 1 à 2
Possible maximum (all 4
Maximum possible (pour les 4 aptitudes)
2e langue officielle
High proficiency (per ability)/
Bonne connaissance (par aptitude)
Moderate proficiency (per
Connaissance moyenne (par aptitude)
Basic proficiency (per ability)/
Connaissance de base (par aptitude)
to maximum of 2/
de 1 à 2
Possible maximum (all 4
Maximum possible (pour les 4 aptitudes)
1 year/Une année
2 years/Deux années
3 years/Trois années
4 years/Quatre années
21-49 years at time of application/
21-49 ans au moment de la présentation de la demande
Less 2 points for each year
over 49 or under 21/
2 points de moins pour chaque année au-dessus de 49 ou en-dessous
EMPLOYMENT IN CANADA/
EMPLOI RÉSERVÉ AU CANADA
HRDC confirmed permanent
offer of employment
Offre d’emploi à durée indéterminée approuvée par DRHC
Applicants from within
Canada and holding a temporary work permit that is:
Demande présentée au Canada par le titulaire d’un permis de travail
temporaire qui :
HRDC opinion obtained, including
A fait l’objet d’un avis par DRHC, incluant les approbations sectorielles
HRDC opinion exempt under
NAFTA, GATS, CCFTA, or significant economic benefit (i.e., intra-company
Fait l’objet d’une dispense d’avis de DRHC en vertu de l’ALENA,
de l’AGCS ou de l’ALECC ou pour motif d’effets économiques importants
Études de l’époux ou du conjoint de fait
Minimum one year full-time
authorized work in Canada(3)/
Au moins une année d’emploi à plein temps au Canada en vertu d’un
permis de travail(3)
Minimum two year full-time
authorized post-secondary study in Canada(3)/
Au moins deux années d’études post secondaires à plein temps au
Canada en vertu d’un permis d’études(3)
Have received points under
the Arranged Employment in Canada factor/
Points attribués pour un emploi réservé au Canada
Family relationship in Canada(3)/
Parenté au Canada(3)
trade certificate or apprenticeship” refers to a post-secondary educational
credential other than a university educational credential.
(1) « Diplôme, certificat de compétence ou d’apprentissage »
réfère à un diplôme d’études post secondaires autre qu’un diplôme universitaire.
(2) Applicants are rated on the ability to speak, listen, read or write
Canada’s two official languages.
(2) Le candidat est évalué sur les aptitudes suivantes : parler, comprendre,
lire ou écrire les deux langues officielles du Canada
(3) Applies to either prinicipal applicant or accompanying spouse or common-law
(3) S’applique tant au demandeur principal qu’à son époux ou conjoint
de fait qui l’accompagne.
IMMIGRATION AND REFUGEE PROTECTION CASE LAW
The following are summaries of some of the leading cases in this area
of law. The volume of immigration litigation in Canada is quite large,
and thus reference is made only to the most significant decisions.
Singh et al. v. Canada (Minister of Employment and Immigration),
 1 S.C.R. 177
The Minister of Employment and Immigration, acting on the advice of the
Refugee Status Advisory Committee (RSAC),(1)
determined that a group of claimants were not Convention refugees. The
Immigration Appeal Board denied the subsequent applications for redetermination
of status without an oral hearing, as was the law at the time. At issue
was whether the appellants could rely on the Canadian Charter of Rights
and Freedoms to challenge the process and, if so, whether their right
to security of the person was being infringed in a manner that did not accord
with the principles of fundamental justice. The majority held:
Section 7 of the Charter guarantees “everyone ...
the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles
of fundamental justice.” The term “everyone” includes every person
physically present in Canada and by virtue of such presence amenable
to Canadian law.
A Convention refugee had the right under s. 55 of
the Immigration Act, 1976 not to “... be removed from Canada
to a country where his life or freedom would be threatened ...” The
denial of such a right was held to amount to a deprivation of “security
of the person” within the meaning of section 7.
The procedure for determining refugee status claims
established in the Immigration Act, 1976 was found to be inconsistent
with the requirements of fundamental justice. At a minimum, the procedural
scheme set up by the Act should have provided the refugee claimant with
an adequate opportunity to state his case and to know the case he had
to meet. However, the process did not envisage an opportunity for the
refugee claimant to be heard other than through the transcript of his
examination under oath by an immigration officer, and the claimant was
not given an opportunity to comment on the advice the Refugee Status
Advisory Committee had given the Minister. Under the Act, the Immigration
Appeal Board was required to reject an application for redetermination
unless it was of the opinion that it was more likely than not that the
applicant would be able to succeed. An application, therefore, would
usually be rejected before the refugee claimant even had an opportunity
to discover the Minister’s case against him in the context of a hearing.
The government did not demonstrate that these procedures
were a reasonable limit on claimants’ rights within the meaning of s.
1 of the Charter.
It was the Singh decision that led to the creation of the Immigration
and Refugee Board (IRB).
Canada (Attorney General) v. Ward,  2 S.C.R.
Mr. Ward was a former member of a Northern Ireland terrorist
organization who had been sentenced to death by that organization for assisting
hostages to escape. He made a claim to refugee status in Canada, arguing
that the United Kingdom and Ireland could not protect him. The Supreme
Court looked at various legal issues relating to the definition of a Convention
refugee in this landmark case and held as follows:
“Persecution” includes situations where the state
is not an accomplice to the persecution but is simply unable to protect
its citizens. The claimant must provide clear and convincing
confirmation of a state’s inability to protect, absent an admission
by the national’s state of its inability to protect that national.
Except in situations of complete breakdown of the state apparatus, it
should be assumed that the state is capable of protecting a claimant.
In determining that Mr. Ward did not belong to a
“particular social group” (one of the enumerated grounds in the definition
of a Convention refugee), this basis of persecution was determined to
consist of three categories: (1) groups defined by an innate, unchangeable
characteristic; (2) groups whose members voluntarily associate
for reasons so fundamental to their human dignity that they should not
be forced to forsake the association; and (3) groups associated
by a former voluntary status, unalterable due to its historical permanence.
Mr. Ward, who believed that the killing of innocent
people to achieve political change was unacceptable, set the hostages
free in accordance with his conscience. The persecution he feared thus
stemmed from his political opinion as manifested by this act.
Ultimately, the case was returned to the Board for rehearing in accordance
with the Court’s guidance.
Pushpanathan v. Canada (Minister of Citizenship and Immigration),
 1 S.C.R. 982
Mr. Pushpanathan entered Canada and claimed refugee status,
but his claim was never adjudicated as he was granted permanent residence
status under an administrative program. He was subsequently convicted of
conspiracy to traffic in a narcotic, having been a member of a group in
possession of heroin with a street value of some $10 million. He was sentenced
to eight years in prison. In 1991, when on parole and facing deportation,
Mr. Pushpanathan renewed his claim for Convention refugee status. The Board
decided that he was not a refugee by virtue of the exclusion clause in Article 1F(c)
of the Convention, which provides that the Convention does not apply to
a person who “has been guilty of acts contrary to the purposes and principles
of the United Nations.”
The majority of the Supreme Court of Canada found that
the Board’s decision was incorrect and allowed Mr. Pushpanathan’s appeal. Article
1F(c), the Court determined, will be applicable where there is consensus
in international law that particular acts constitute sufficiently serious
and sustained violations of fundamental human rights as to amount to persecution,
or are explicitly recognized as contrary to the UN purposes and principles. Conspiring
to traffic in a narcotic is thus not a violation of Article 1F(c).
The matter was remitted to the IRB for reconsideration,
where a new argument was advanced against the claimant. It was suggested
that Mr. Pushpanathan was ineligible to have his claim heard under Article
1F(c) because his drug trafficking was intended to profit a terrorist group,
the Tamil Tigers.(2)
Although he denied any knowledge that funds from the drug ring were being
sent to the Tigers, the Board held that he was ineligible to have his claim
heard. The Federal Court upheld that decision in October 2002, stating
that the test for determining whether there is “a serious reason for considering”
(the term used in the Refugee Convention) that a person has been guilty
of acts that the Supreme Court would consider sufficient to meet the Article
1F(c) exclusion requires a low standard of proof. Formal membership in
the terrorist organization or direct involvement is not required. This
case may yet be appealed to the Federal Court of Appeal.
Suresh v. Canada (Minister of Citizenship and Immigration),
2002 SCC 1
Suresh, and its companion case Ahani (see
below), dealt with deportation orders against individuals who argued that
they would face torture if returned to their home countries. Canada has
ratified the Convention Against Torture (CAT), which explicitly prohibits
state parties from returning people to torture. Article 3(1) states: “No
State Party shall expel, return (“refouler”) or extradite a person to another
State where there are substantial grounds for believing that he would be
in danger of being subjected to torture.” States are not supposed to be
able to deviate from this absolute prohibition. Article 2(2) of the CAT
reads: “No exceptional circumstances whatsoever, whether a state of war
or a threat of war, internal political instability or any other public emergency,
may be invoked as a justification of torture.” Furthermore, the Supreme
Court of Canada unanimously held when examining the issue that the prohibition
on returning a person to face a risk of torture is also the prevailing international
norm; that is, it is customary international law.
In direct contradiction, however, was a section of the
former Immigration Act which permitted deportation to a country where
the person’s life would be threatened if the person was inadmissible for
any specified reason and was designated to be a danger to the security of
Canada. (This continues to be the case under the new Immigration and
Refugee Protection Act, which came into force on 28 June 2002.) In
essence, Canadian law provides that in certain situations, people may be
deported to face torture.
Mr. Suresh was allegedly a member of and fundraiser for
the Tamil Tigers. Although the Court allowed Suresh’s appeal and ordered
that he was entitled to a new deportation hearing, the legislation was upheld
as valid. The principles of fundamental justice in section 7 of the Charter
would guide the new hearing and the Court suggested that the Minister should
“generally decline to deport refugees where on the evidence there is a substantial
risk of torture.” The Court set out its restrictive view of when deportation
under these circumstances could take place as follows:
We do not exclude the possibility that in exceptional
circumstances, deportation to face torture might be justified, either
as a consequence of the balancing process mandated by s.7 of the Charter
or under s.1…. Insofar as Canada is unable to deport a person where
there are substantial grounds to believe that he or she would be tortured
on return, this is not because Article 3 of the CAT directly constrains
the actions of the Canadian government, but because the fundamental
justice balance under s.7 of the Charter generally precludes deportation
to torture on a case-by-case basis.
Ahani v. Canada (Minister of Citizenship and Immigration),
2002 SCC 2
In the companion case to Suresh (see above), the
appellant was allegedly an assassin, trained by Iranian intelligence. In
his case, the Court determined that he had not established that he faced
a substantial risk of torture if returned to Iran. His appeal was therefore
Following the judgment, Mr. Ahani began new proceedings,
requesting that his deportation be stayed until the United Nations Human
Rights Committee reviewed his case. He was unsuccessful in the lower courts
and the Supreme Court of Canada refused to hear his appeal.
Baker v. Canada (Minister of Citizenship and Immigration),
 2 S.C.R. 817
Ms. Baker, a woman with Canadian-born dependent children,
was facing deportation. She submitted a written application to stay in
Canada on humanitarian and compassionate grounds. A senior immigration
officer refused the application. Statements in the officer’s notes gave
the impression that he may have been drawing conclusions based not on the
evidence before him, but on the fact that the appellant was a single mother
with several children and had been diagnosed with a psychiatric illness.
The majority of the Court held:
A reasonable and well-informed member of the community
would conclude that the reviewing officer had not approached this case
with the appropriate impartiality, thus giving rise to a reasonable
apprehension of bias.
The wording of the legislation showed Parliament’s
intention that the decision be made in a humanitarian and compassionate
manner. A reasonable exercise of the power conferred by the section
required close attention to the interests and needs of children, since
children’s rights are central values in Canadian society. Because the
reasons for this decision did not indicate that it was made in a manner
that was sensitive to the interests of the Baker children, and did not
consider them as an important factor in making the decision, it was
an unreasonable exercise of the power conferred by the legislation.
The case was remitted for reconsideration and Ms. Baker
was ultimately granted permanent resident status.
Ribic v. Canada (Minister of Employment and Immigration),
(20 Aug. 1985), I.A.B. T84-9623
Permanent residents facing deportation under the former
Act could apply to the Immigration Appeal Division of the IRB for an order
staying or quashing their removal order on the ground that, “having regard
to all the circumstances of the case, the person should not be removed from
Circumstances considered at these hearings were enumerated in the Ribic
decision and include:
Chieu v. Canada (Minister of Citizenship and Immigration),
2002 SCC 3
In 1991, Mr. Chieu’s sister sponsored him, as well as other
family members, to come to Canada. On his application for permanent residence,
he misrepresented his marital status, stating he was single with no dependants,
in order to be eligible to be sponsored as an accompanying dependant of
his father. Once in Canada, he applied to sponsor his previously undisclosed
wife and child. As a result, an immigration inquiry was convened and he
was ordered deported for misrepresentation. An appeal to the Immigration
Appeal Division on humanitarian grounds was denied. The Board held that
it could not consider potential foreign hardship, one of the Ribic factors
The Supreme Court of Canada held that the factors set out
in Ribic remain the proper ones for the Appeal Division to consider.
The Board is thus obliged to consider every relevant circumstance, including
potential foreign hardship, provided that the likely country of removal
has been established by the individual facing removal. As this had not
been established by Mr. Chieu, the matter was remitted to the Board for
Law Society of British Columbia v. Mangat, 2001 SCC
Mr. Mangat was an immigration consultant in Vancouver.
Although he was not a member of the British Columbia bar, he and other employees
of his firm acted as counsel in various immigration proceedings. The Law
Society of British Columbia brought an application seeking a permanent injunction
against Mr. Mangat and his associates to prevent them from engaging in the
practice of law in contravention of the B.C. Legal Profession Act.
The consultants conceded that they were engaged in the practice of law within
the meaning of the provincial Legal Profession Act, but contended
that they were permitted to do so under the former Immigration
Act, which allowed (as does the new Act) non-lawyers to appear on behalf
of clients before the IRB.
The Supreme Court of Canada determined that since the subject
matter of the representation of people by counsel before the IRB has federal
and provincial aspects, the federal and provincial statutes and rules or
regulations will coexist insofar as there is no conflict. Where there is
a conflict, the federal legislation will prevail according to the paramountcy
doctrine, thus safeguarding the control by Parliament over the administrative
tribunals it creates.
Non-lawyers may therefore appear before the IRB (although
by the time the case reached the Supreme Court of Canada, Mr. Mangat had
completed law school and become a member of the Bar).
The RSAC was the body preceding the Immigration and Refugee Board
that read transcripts of claimant interviews and made recommendations
to the Minister.
The Liberation Tigers of Tamil Eelam is an organization involved in terrorist
activity in the course of its war for an independent Tamil state in Sri
Note that the new Immigration and Refugee Protection Act has a
similar provision for considering humanitarian concerns when a permanent
resident is facing deportation, although there are new restrictions on
who may access the Immigration Appeal Division.