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Canadian immigration law 2022: Predictions, suggestions

Thursday, January 06, 2022 @ 1:11 PM | By Ravi Jain

Ravi Jain %>
Ravi Jain

COVID-19 will continue to loom large in 2022. As of Jan. 15, with some exceptions, only fully vaccinated people will be able to enter Canada. This will apply to those reuniting with family here, international students 18 years or older, professional and amateur athletes, those on work permits (outside agricultural and food processing workers) and essential service providers such as truck drivers. This was announced back on Nov. 19, 2021, and the government no doubt feels that ample notice has been provided for this change in the law.

Of course, COVID also contributed to the backlog of 1.8 million immigration applications, although a major factor was also the number of officers “on leave” for extended periods of time. To make matters worse, applicants awaiting decisions on their visa applications were advised in some cases to submit their applications a second time — presumably to signal that one was still interested in coming to Canada. To address the “inventory” of cases, the 2021 Economic and Fiscal Update provided $85 million in 2022-3 to process more applications and reduce processing times. 

Given acute labour shortages faced by employers, the prime minister’s mandate letter to Immigration Minister Sean Fraser talked about simplifying Work Permit renewals and upholding the normal two-week processing time period for certain application types. Yet, the government should go further and declare immigration officers and Canada Border Services Agency officers as essential workers. As federal employees, they were mandated to be vaccinated and so they should return to their offices on a rotational basis if needed.

COVID also affected entire categories of immigrants. Over the past two years, the Immigration Department provided permanent residence to those who were in Canada, using existing programs like the Canada Experience Class and the Provincial Nominee Programs and creating new pathways for those with jobs which normally do not require a post-secondary education. Highly educated and highly skilled people abroad who would normally immigrate under the Federal Skilled Worker program were left out. Innovative entrepreneurs who applied under the Start-Up Visa and who can assist with our economic recovery have seen their applications languish. In 2022, the department should open our doors to the highly skilled folks and Start-Up Visa applicants who we’ve been missing these past few years.

Also, we can once again expect special pathways to permanent residence for international students. Indeed, the PM’s mandate letter talked about expanding pathways to permanent residence for international students and temporary foreign workers through the Express Entry system. This is particularly welcome given many students come to Canada with false promises made by immigration consultants (particularly from India) that they will certainly become permanent residents and there have been many suicides in the community as a result. More special permanent residence programs for international students will not only help the students but will also protect this $22-billion international student industry which creates 170,000 jobs. Also look out for a potential amnesty program given that the mandate letter also talked about exploring ways to regularize status for undocumented workers.

In terms of the family class, the department will most certainly run a Parents and Grandparents Program admitting 23,500 immigrants that way. The minister may also introduce a program to issue temporary resident status to spouses and dependent children abroad who are awaiting processing of their permanent residence applications. This was also mentioned in the mandate letter. No doubt visa offices will be concerned about fraud given they typically prefer to assess the bona fides of the marriage before issuing permanent residence visas, let alone temporary residence visas. Perhaps the visitor visa applications will continue to probe the bona fides of the marriage as occurs at some visa offices.

In terms of overall numbers, the current levels plan calls for 411,000 permanent residents in 2022 and 421,000 in 2023. A new announcement as to the levels plan is forthcoming next month, and it could only be revised upwards in my view given the minister has stated he’s open to higher numbers and coming from Atlantic Canada, he would be acutely aware of Canada’s need for immigrants given our low birth rate.

Moving to what should occur, the department must greatly improve customer service given it is at an all-time low. There are frustrations with aging technology and unhelpful generic responses to inquiries. Officers return applications or refuse incorrectly or for minor shortcomings when a phone call or e-mail could resolve. New technology is also causing great distress to immigration lawyers and their clients. Online “portals” are down for days resulting in loss of status, separation of family members and workers left idle. Most troubling has been the steady erosion of the right to counsel as the department modernizes its digital platform and systems. Lawyers were excluded from the initial online citizenship application process and the new process still excludes lawyers from filing on behalf of clients (requiring that we screenshare as applicants input data and upload forms and supporting documents). Yet clients who need assistance the most who have language challenges or are not tech savvy, are severely impacted. 

Government websites should not discourage the public from using representatives. Concerns around unethical and/or incompetence from immigration consultants result in lawyers being lumped in when government websites issue warnings about representatives and fraud and state that no representative is needed. Implying that we cannot be trusted and are not really required and that login portal information should not be shared is highly problematic and infringes on solicitor-client privilege. Many vulnerable, unsophisticated, differently abled people benefit enormously from the training and expertise of lawyers when they help navigate this incredibly complex field of law. 

While he is unlikely to do so in 2022 given that the minister is still finding his footing, it is past time for this government to look at legislative reforms. Canada badly needs a new federal business immigration stream to help transition a trillion dollars worth of small and medium sized businesses from retiring baby boomers to immigrants. It is time to restore the appeal rights for permanent residents (especially now that driving under the influence is considered “serious criminality”). Barring dependents for life simply because they were not medically examined is also highly problematic and needs further reform. Moreover, the sledgehammer which is the five-year misrepresentation bar needs far more nuance and officer discretion (perhaps two separate bars, one for two years and one for five years) to reflect that there are different kinds of misrepresentation (innocent and intentional or by consultants) and the consequences are dire (family separation, loss of permanent residence etc.).

Lastly, immigration consultants are now regulated by a college (the third attempt to regulate them) and yet their board is still missing as well as a new ethical code which the minister was supposed to provide. There were about 1,500 consultants under the first regulatory scheme; at the end of the era of the second regulator, the number of consultants had ballooned to almost 10,000. In spite of award-winning journalism documenting continued fraud and negligence, the government is grandparenting them all and therefore all problems associated with consultants engaged in the actual practice of law today will continue for another generation. The minister should reverse this immediately.

Ravi Jain is a managing senior lawyer at Green and Spiegel LLP and a certified specialist in citizenship and immigration law by the Law Society of Ontario. He is a past national chair of the Canadian Bar Association Immigration Section and a founder of the Canadian Immigration Lawyers Association.

Photo credit / Evgeny Gromov ISTOCKPHOTO.COM

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