A Very Busy Year: A Brief Review of the Major Changes Made to Immigration and Refugee Law in 2012 2013 By Chris Veeman Veeman Law www.veemanlaw.com chris@veemanlaw.com The period from January 2012 to March 2013 has seen many changes in many areas of immigration law. In fact, the rate and significance of the changes has been such that it has been difficult to stay current with law and practice in this area. This paper summarizes the developments during this period with a view to alerting practitioners as to the changes that have occurred in their broad scope. It is not intended to be a full discussion of each area. Get Out!: Refugees, Detention, Enforcement and Removals The system prior to the 2012 changes The changes introduced in 2012 were intended to make the in- Canada refugee determination process much faster than it has been in the last few decades. Since the Supreme Court s 1987 decision in Singh 1, all persons claiming protection in Canada have been entitled to an oral hearing of their case. This right is premised on Section 7 of the Charter, and it is based on the fact that credibility is often a central issue in claims for protection. The Singh decision led to the creation of the Immigration and Refugee Board of Canada (the IRB ), Canada s largest administrative tribunal, which hears all eligible claims for refugee protection. Under the former system (which applied and continues to apply to cases initiated prior to December 15, 2012), the typical case would take between 12 24 months (or longer) to be heard. This delay was due to the backlog of cases at the IRB, the cause of which has been subject to debate: were there just too many claims, or was the Government to blame because it did not appoint enough IRB decision- makers. In many cases, refused claimants would apply to the Federal Court to judicially review the IRB s decision. There was one automatic benefit to doing this: removal proceedings were put on hold until the Federal Court issued its decision. As a result, the Federal Court dealt with many cases with questionable merit. Once the Federal Court s decision was issued, the claimant would be ready for removal, and would be given the option of initiating a Pre- Removal Risk Assessment ( PRRA ). Designed as a way to be sure that a person was not at risk due to circumstances that might have changed after the refugee hearing, filing a PRRA 1 1
would also automatically delay removal, and the PRRA process often took a year. It was also subject to judicial review at the Federal Court. In summary, if everything were to go according to schedule, and there was no success at the Federal Court, a refugee claimant could expect to spend roughly 3 4 years in Canada before being subject to removal. The delay was problematic from two points of view: (1) refugees had to wait a long time to obtain status in Canada, and (2) claimants would become established in Canada during the delay. This establishment in Canada led to problems, as in addition to the risk- based procedures (refugee claim and PRRA), claimants could also file an application to remain in Canada based on humanitarian and compassionate considerations. Claimants who were well established in Canada would either be able to stay based on the humanitarian and compassionate considerations in their case, or the Canada Border Services Agency would be faced heart- wrenchingly difficult removals in cases where families might be split up. The 2012 changes The changes introduced by the Protecting Canada s Immigration System Act can be grouped into a few overarching approaches, the goal of which is to reduce the volume of in- Canada claims based on the theory that Canada s former system was open to abuse by unmeritorious claimants. The first approach in the new legislation is the concept of triaging claimants according to their country of origin. In the past, claimants had their cases handled identically regardless of their country of origin, and regardless of how they arrived in Canada; the new system creates different streams based on these factors. The legislation does this by designating 2 certain countries of origin 3 as not being refugee- producing countries. Claimants from these countries are to have their claims decided in a matter of weeks or months, rather than years. Even those claimants from non- DCO countries will see much faster processing, as the longest period of time in which a hearing can be scheduled is 60 days. The second approach is to lessen the attractiveness of Canada as a place to claim refugee protection, mainly in relation to those arriving as smuggled persons. The PCISA permits the Minister of Citizenship and Immigration to designate certain foreign nationals as having arrived irregularly. 4 This has significant consequences for such persons, including mandatory detention for 12 months 5 and restriction on 2 IRPA Section 109.1 3 See http://www.cic.gc.ca/english/refugees/reform- safe.asp for the list of designated countries of origin. 4 IRPA Section 20.1. This power was introduced largely in response to the arrival of the Sun Sea and Ocean Lady in Vancouver in 2010, carrying approximately 550 refugee claimants. 5 Section 55(3.1). 2
access to other immigration processes including the right to apply for permanent residency after a favourable refugee claim, 6 denial of access to humanitarian and compassionate considerations applications 7, temporary resident permits 8, or refugee travel documents for five years 9, and loss of appeal rights to the Refugee Appeal Division. 10 In addition to these implications for the claimants, the new legislation also creates the offence of, essentially, aiding and abetting persons to enter Canada unlawfully. 11 These consequences can be seen as an attempt to reduce the attractiveness of claiming refugee protection in Canada, particularly through the use of human smugglers. These two approaches triage and deterrence are at the core of the 2012 changes. The Canadian Bar Association s National Immigration Law Section has suggested that many of the deterrence- oriented changes may violate the Charter and Canada s international obligations respecting the treatment of refugee claimants. These issues remain to be determined at this time. Refugee Decision- Making In addition to triaging cases based on country of origin, the PCISA also introduced much faster timelines for the hearing of cases before the Refugee Protection Division of the IRB. Rather than the open- ended system within the discretion of the IRB that prevailed until December 15, 2012, the legislation now directs the scheduling of hearings much more directly. Refugee hearings are now to be held between 30 to 60 days from the date of claim, depending on the country of origin and the place of claim. These hearing timeframes have been controversial, as many refugee practitioners have suggested that it will be impossible to obtain evidence from overseas to prove the case in these kinds of timeframes. Public Service decision- makers For many years, decision- makers at the Board ( Members ) have been Governor in Council appointees (i.e. Federal Cabinet appointees). This has led to criticisms of political patronage and of mixed reviews in relation to the expertise of decision- makers. 6 Section 20.2 7 Section 25(1.01) 8 Section 24(5) 9 Section 31.1 10 11 Section 117. Note that in Appulonappa, 2013 BCSC 31, the British Columbia Supreme Court struck down this provision as overly broad. 3
With PCISA, decision- makers at the RPD are public servants, which eliminates the problem of political patronage. However, it does also create a concern with judicial independence. Refugee Appeal Division In 2002, when the Immigration and Refugee Protection Act was put into place, it included a provision creating the Refugee Appeal Division (RAD) of the Immigration and Refugee Board. The RAD was intended to provide for appeals from the RPD. However, even though it existed in the legislation, the institution itself was never created until it was put into force via the PCISA. In some regards, the creation of the RAD can be seen as the balance in the Balanced Refugee Reform Act, one of the predecessors of PCISA, as it creates greater procedural entitlement for (some) refugee claimants, whereas many of the other changes reduce procedural entitlements. The decision- makers at the RAD are Governor in Council appointees. An appeal to the RAD is intended to be an appeal on questions of law or mixed fact and law, and the claimant is not permitted to adduce new evidence unless the evidence arose subsequent to or was not reasonably available to present at the RPD hearing. However, this restriction does not apply to the Minister, who is permitted to introduce new evidence on appeal. The following categories of decisions are not subject to appeal A RPD decision allowing or rejecting the claim of a DCO claimant for refugee protection; A RPD decision allowing an application by the Minister for a determination that refugee protection has ceased; A RPD decision allowing an application by the Minister to vacate a decision to allow a claim for refugee protection; A RPD decision allowing or rejecting the claim for refugee protection of a designated foreign national; Claimants who came to Canada via a safe third country but had a RPD hearing by virtue of fitting into an exception to their ineligibility; Refugee claims found to be manifestly unfounded or have no credible basis; Refugee claims referred to the RPD before this section comes in force, even where the claim has been heard on redetermination after the Federal Court granted judicial review. 4
Humanitarian and Compassionate considerations As noted above, in the past, many failed refugee claimants would file humanitarian and compassionate (H&C) grounds applications concurrently or subsequent to their refugee claims. The new legislation bars the Minister from considering (H&C) applications from anyone with a protection claim pending and for a further one year from rejection of the claim. 12 This bar does not apply, however, in a case where minor children would be affected or if the person would face a risk to their life due to lack of medical care in their home country. The rationale is presumably to facilitate removal of failed refugee claimants by eliminating impediments to removal and to discourage persons who have other grounds for wishing to remain in Canada from making a refugee claim. However, an application to remain on H&C grounds can only impede removal if it forms the basis for an application for a stay of removal. The case law is clear that the application does not warrant a stay unless there are exceptional circumstances such as a lengthy delay in processing the H&C claim. The bar on H&C applications is longer for designated foreign nationals, who may not apply for at least five years from their designation or the finalization of their claim or application for protection. One interesting thing to watch in the litigation that will undoubtedly unfold in relation to this change is the extent to which the series of limitations on H&C considerations will undo some of the existing immigration case law. The availability of H&C considerations as a safety valve to attenuate the sometimes- harsh effects of other provisions in Canadian immigration law has been relied on to uphold those more stringent rules. 13 Pre- Removal Risk Assessment As noted above, prior to June 30, 2012, failed refugee claims would automatically be eligible to file a Pre Removal Risk Assessment (PRRA), a paper hearing designed to determine whether failed refugee claimants, as well as others, could be safely removed from Canada. The process was intended to occur immediately prior to removal, so that Canada could be certain that all risks had been considered prior to removal, including those that might have arisen subsequent to the refugee hearing. 12 Section 25 (1.2) 13 See for example de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436 (CanLII), [2006] 3 FCR 655. 5
Indeed, the PRRA only permits consideration of evidence that arose subsequent to the refugee hearing. Beginning June 30, 2012, and retroactive to any PRRAs filed before that date which were not decided prior, most claimants face a 12- month bar on filing a PRRA application. This bar does not apply to claimants whose refugee claim was found to be ineligible on the basis of the provisions of Article 1(F) of the Convention on the Status of Refugees (these claimants do not have the merits of their refugee considered by the IRB, so it is necessary that they have at least a PRRA to assess risk). Investigative Arrest and Detention Sections 23 and 26 of PCISA expand the grounds on which a permanent resident or foreign national can be arrested and detained for investigative purposes. The Minister can not only arrest and seek detention to investigate the most serious grounds of inadmissibility (security or violating human or international rights), but investigate inadmissibility for organized criminality, serious criminality, or even mere criminality. Interim Federal Health Program As what should be seen as another attempt to remove incentives for refugee claimants to claim in Canada, in June 2012 the Government also reduced eligibility for Interim Federal Health Benefits for refugee claimants. The cuts eliminated certain health benefits, primarily for refugee claimants (now no longer entitled to supplemental health benefits) and particularly for rejected refugee claimants (now entitled to health coverage only when medical services are required to protect public health. 14 These cuts have been controversial, with some indicating that the main effect is to download costs from the Federal Government to provinces and others. Bill C- 43, Faster Removal of Foreign Criminals Bill C- 43 is currently before Parliament and is likely to be passed into law shortly. The primary focus of those examining Bill C- 43 has been on the changes that it would make to the status of permanent residents who commit crimes in Canada. Currently, unless a person is sentenced to a term of imprisonment greater than two (2) years, they will have access to an independent tribunal (the Immigration Appeal Division or IAD ) tasked with reviewing the circumstances of their case to determine whether they should be allowed to remain in Canada. 14 http://www.cic.gc.ca/english/refugees/outside/ifhp- info- sheet.asp 6
Access to the IAD by permanent residents with removal orders issued because of criminal convictions is a longstanding fixture of immigration law. The IAD holds an open hearing attended by Minister s counsel and the person concerned. The tribunal listens to evidence on the criminality and the circumstances of the person. The tribunal either upholds the deportation by denying the appeal altogether, or issues a stay order a form of probation that requires the permanent resident to obey conditions. Counsel for the Minister often jointly recommends the stay order conditions, or takes no objection to the stay order, because it is an appropriate resolution of the review. Bill C- 43 will deny access to the IAD to permanent residents sentenced in Canada to more than six months imprisonment. The two- year threshold is reduced, capturing many more permanent residents and subjecting them to automatic removal with no review of the circumstances of the case. While the elimination of many removal order appeals to the IAD is the primary focus of debate regarding Bill C- 43, the Bill would also introduce other significant changes: A new Ministerial power to declare that a person may not become a temporary resident for public policy reasons; Eliminating the ability of persons found to be inadmissible on grounds of organized criminality, security, or international or human rights violations to apply for permanent residency on humanitarian and compassionate grounds; Increasing the period of inadmissibility for persons who have misrepresented from two (2) to five (5) years. Come In!: Developments on Immigration Policy In the past year, the Government has also been busy on Immigration, in addition Refugee Protection, in the Immigration and Refugee Protection Act. In the past year, the primary trends are: moving towards an immigration policy premised on selecting immigrants who meet an immediate labour market need, as evidenced by having an existing job offer, and prioritizing English or French language ability. In addition, the selection criteria favour younger immigrants, on the basis that they are assumed to be more adaptable and will be willing and able to contribute to the Canadian economy for a longer period of time. In addition, application procedures and policies have changed significantly, with CIC increasingly moving to online application submission and processing. 7
New FSW Program After many years in which the Federal Skilled Worker program operated somewhat dysfunctionally, CIC has introduced a new program which is to begin May 4, 2013. 15 The new program includes the following selection criteria: Minimum official language thresholds and increased points for official language proficiency, making language the most important factor in the selection process: Increased emphasis on younger immigrants, who are more likely to acquire valuable Canadian experience, are better positioned to adapt to changing labour market conditions, and who will spend a greater number of years contributing to Canada s economy; Introduction of the Educational Credential Assessment (ECA), so that education points awarded reflect the foreign credential s true value in Canada; Changes to the arranged employment process, allowing employers to hire applicants quickly, if there is a demonstrated need in the Canadian labour market; and Additional adaptability points for spousal language ability and Canadian work experience. 16 Skilled Trades Class In addition to the newly revised FSW program, CIC also introduced a Federal Skilled Trades Program which is designed for people ewho meet the following criteria: plan to live outside the province of Quebec; meet the required levels in English or French for each language ability (speaking, reading, writing, and listening), have at least two years of full- time work experience (or an equal amount of part- time work experience)* in a skilled trade within the five years before applying, meet all job requirements for that skilled trade as set out in the National Occupational Classification (NOC), and 15 http://www.cic.gc.ca/english/department/media/backgrounders/2012/2012-12- 19.asp 16 From: http://www.cic.gc.ca/english/department/media/releases/2012/2012-12- 19.asp 8
have an offer of full- time employment for a total period of at least one year or a certificate of qualification in that skilled trade issued by a provincial or territorial body. FSW Backlog Applications (300,000+ people) Before CIC could introduce the new programs described above, and in order to deliver on its commitment to just- in- time processing, it had to clear the decks of the existing backlog of applications. Otherwise, the old cases would have to be processed first, leading to a lengthy delay in processing the new cases. This was accomplished by terminating nearly 300,000 cases that were in the backlog since 2008. The legality of this government action is currently before the Federal Court of Canada. Canadian Experience Class As of January 2013, the requirements under the Canadian Experience Class, were amended to reduce the work- in- Canada requirement from 24 to 12 months. This change has again increased the emphasize on skilled Canadian experience, opening up a path to permanent residency for those who are able to gain initial entry into Canada as a temporary foreign worker. Til Permanent Residency Do Us Part - Conditional Permanent Residency Due to a concern with marriages of convenience (marriages the primary purpose of which is to facilitate immigration), as well as a concern with Canadians being misled by their foreign spouses, regulations were passed specifying that, under the family class or the spouse and common- law partner in Canada class, a spouse, common- law or conjugal partner who is in a relationship of two years or less with their sponsor and has no children in common with their sponsor at the time of sponsorship application is subject to a two- year period of conditional permanent residence. The condition requires that the sponsored spouse or partner cohabit in a conjugal relationship with their sponsor for a period of two years following receipt of their permanent resident status in Canada. This change shifts the balance of power towards Canadian spouses from their foreign sponsored spouses, in the sense that the sponsored spouses status in Canada is dependent on the continued existence of the relationship. Some have criticized this as opening up an opportunity for abuse by Canadians. Online Applications & GCMS CIC is taking the welcome step of encouraging online applications, and has been rolling out such applications on a category- by- category basis. Another recent development is the commencement of emedical, an electronic medical exam system 9
that has replaced the former paper- based system. CIC s goal is to have a paperless system by 2017. The new application system is supported by CIC s new Global Case Management System, which has replaced the former Field Officer Support System ( FOSS ) and Computer Assisted Immigration Processing System ( CAIPS ). Visa Post and Local Office closures Undoubtedly connected with CIC s push toward online and electronic application processing is the decision to close numerous visa posts, particularly in the United States, and most notably the Buffalo Consulate General, which previously processed a high volume of applications for permanent residence, work permits, study permits and temporary resident visas. These files were redistributed to other offices. Of interest was the transfer of files from Buffalo to the Case Processing Pilot Ottawa in a move that could presage the transfer of all permanent resident processing from overseas offices back to Canada. With the advent of online and electronic applications, it is less critical for Canada to have a physical office in as many locations. At the same time, CIC has closed numerous local offices in Canada, including the Regina local office. Furthermore, the remaining offices no longer offer counter service. 17 17 http://www.cic.gc.ca/english/resources/manuals/bulletins/2012/ob431.asp 10