Canada Immigration Blogs by Attorney David Cohen


Punishing Spousal Sponsors

August 5th, 2014

A spokesperson for Immigration Minister Chris Alexander recently boasted that “Canada has one of the most generous family reunification programs in the world”. Maybe so, but don’t ask Canadian citizens and permanent residents, who are sponsoring their foreign national spouses, to second that opinion, especially those caught in the quagmire of the in-Canada sponsorship process.

The current immigration regulations permit a foreign national spouse to be inside or outside Canada during the sponsorship process, so long as, in the former case, the foreign national is already legally in Canada when the process begins.

In the past year, Citizenship and Immigration Canada (CIC) has doubled the processing time on inland applications and there is feeling among many of the individuals affected that the additional delay has been manufactured. At best, it is seen by some as a deterrent to utilizing the inland option and, at worst, it may be a signal that CIC soon intends to put an end to the in-Canada sponsorship option.

Spousal sponsorship is a two-stage process for both in-Canada and outside-Canada applications. The first stage always occurs in Canada and it involves an assessment of the Canadian sponsor’s eligibility. The second stage is about assessing the foreign national and it includes health and criminal clearances. Last year, the first stage of inland applications was taking six months to complete and it now takes eleven months. To put this in perspective, the first stage of outside Canada applications is being completed in less than two months. There is no difference in the work being done. It’s purely a policy decision.

For in-Canada applicants, completion of the first stage of the process is significant. It is only then that the foreign national spouse is entitled to a work permit and a provincial health card. The longer wait is more than an inconvenience; it causes financial and emotional hardship. It doesn’t have to be this way. Canada grants open work permits to the spouses of international students and many temporary foreign workers, right from the moment they enter Canada. Nobody is saying this is wrong, but what is available to temporary foreign residents with few ties to Canada should also be given to spouses of Canadian citizens and permanent residents. After all, they are residents-in-waiting. Why punish them for doing what the regulations allow?

Next on the Government’s Hit List

July 3rd, 2014

First, it was the 280,000 Federal Skilled Worker applicants, most of them from Africa and Asia, whose files were terminated. Next, it was the 50,000 plus Federal Investor applicants, most of them from China, whose files were terminated. It appears that live-in caregivers are next in line.

Let’s be very clear. When you denigrate Canada’s Live-In Caregiver Program (LCP), you attack Canada’s Filipino community.  The LCP has been around for 22 years and 90% of primary applicants are women from the Philippines. Most of the 625,000 Filipinos now in Canada can trace their arrival back to the LCP. You cannot separate the LCP from Canada’s Filipino community.

Recently, there has been a spate of national newspaper articles that have called into question both the value of the LCP and the bona fides of the Canadian Filipino community. The impetus for this negativity does not emanate from ordinary Canadians but rather from the Canadian government in the form of statements by cabinet ministers and Citizenship and Immigration Canada (CIC) reports.

Government-sourced information of a disparaging nature has been pushed out to the public-at-large at a fast and furious pace. The first news story I came across claimed that a CIC internal report showed that 40% of all LCP job offers were being made by Canadian Filipinos to their extended family members overseas. The take-away from this article is that the LCP is less about genuine Canadian employment and more about family re-unification. A few days later, another news story appeared, which raised the ante by claiming that up to 70% of LCP applicants were extended family members of their supposed Canadian employers. The final word on this matter came from Jason Kenney, current Employment Minister and former Immigration Minister. Minister Kenney let Canadians know about the time he went to Manila a few years back to give a seminar on nannies’ rights. According to the Minister, each and every one of the 70 caregivers in attendance was going to work for a relative in Canada. To boot, all they wanted to know about was the penalty they would be subjected to for working outside the employer’s home illegally. Really, Mr. Kenney? You want us to believe that caregivers would ask that question to the Immigration Minister before departing to Canada?

As if this propaganda weren’t enough to poison the minds of Canadians, we have also recently been informed that according to internal documents, fraud is an ongoing problem in the LCP and that the absence of mothers was causing infidelity in the Philippines. I am not making this up.

The problem with this unfavorable publicity is that it just doesn’t fit with Canadians’ perception of the Canadian Filipino community. The fact of the matter is that I have never met anyone in Canada, who had a bad word to say about Filipinos in our country, especially caregivers.

Live-in Caregivers are dedicated, hard-working individuals. They not only serve as nannies but also look after the elderly and disabled among us. The type of work they do would never be done by Canadian workers, no matter what the wage offered. We may call their work low-skilled but that is only because of the meager wages they earn. Just ask any Canadian whose elderly parent is being taken care of by a compassionate live-in caregiver if the work being done is low-skilled.

The main reason Filipino women caregivers are willing to work long hours for low pay in Canada is to gain Canadian Citizenship and sponsor loved ones to immigrate to Canada. That is the quid pro quo and it was never a problem until the government chose to make it one.

So what is behind the negativism and the not so veiled threat to do away with the LCP? I am not sure, but it is interesting that a suggestion being floated is that we ought to replace the LCP with an au pair program. This would allow mainly young European women to enter Canada temporarily and join the thousands of other Europeans already here under the International Experience Class (IEC).

Is the real issue then about identity?

Really the Best We Can Do?

June 3rd, 2014

When the Soviet Union crushed the Hungarian uprising of 1956, Canada responded decisively to the plight of the 200,000 refugees who fled for their lives. Back then, the Canadian population was less than half of what it is today, and yet we managed to resettle almost 40,000 victims of the hammer and sickle within our borders. We stood tall in the world as an example of what a wealthy, developed society could aspire to.

In the ensuing years, albeit on a smaller scale, Canada continued to exhibit this generous spirit, as can be seen from the following figures on refugee resettlement:

  • 1979 – 4000 Vietnamese
  • 1992 – 5000 Bosnians
  • 1999 – 5000 Kosovar Albanians

Fast forward to today as the horrendous civil war in Syria grinds into its fourth year, leaving unimaginable devastation in its wake. Innocent Syrians find themselves defenceless against a sociopathic government, foreign militants and even their own neighbours. Millions have been tormented by chemical attacks, shootings, and kidnappings. It has been described as the largest human crisis of our generation. According to the United Nations, out of a population of 21.4 million people, 9.3 million are in need of assistance. Already, 2.6 million refugees have fled to neighbouring countries Iraq, Jordan, Lebanon, and Turkey.

Last week, the United Nations’ High Commissioner for Refugees met with Canadian Immigration Minister Chris Alexander as part of a tour aimed at convincing international partners to help resettle 100,000 Syrian refugees, in addition to the 30,000 the UN asked countries to accept last year. The Canadian government is considering the latest UN request.

Last summer, our government committed to taking in a meagre 1,300 Syrian refugees, which consisted of 1,100 private sponsorships, and only 200 government sponsored refugees. If that’s not mean-spirited enough, until now, no more than 10 have actually arrived in Canada.

Frankly, Canada’s response to date to the humanitarian crisis in Syria can best be described as stingy and cold-hearted, and stands in sharp contrast to the warm welcome offered to the 40,000 Central Europeans almost 60 years ago. To me, it is a shameful rejoinder to a plea for hope and charity. It says much about the Canadian ethos today. One has to wonder what has changed in Canada since the 1950’s. Have we become poorer? Perhaps not materially, but certainly in spirit.

*Photo from Ottawa Citizen, May 29, 2014

Strengthening Canadian Citizenship?

April 2nd, 2014

As noted in my most recent blog, the Canadian government is proposing to amend the current Citizenship Act in a way that will fundamentally transform the meaning, scope and processing of Canadian citizenship.  The Strengthening Canadian Citizenship Act (C-24) is the first major overhaul of citizenship legislation in Canada in 37 years.

Some of the important changes include:

- The requirement to be physically present in Canada for 183 days per year in at least four of the six years preceding the submission of a citizenship application

- The requirement for naturalized citizens to intend to reside in Canada.  The current law carries no such residency obligation.
- The requirement to submit proof of income tax filings, if required to do so under the Income Tax Act.

- The requirement for applicants aged 14 to 64 to demonstrate proficiency in at least one of Canada’s two official languages.

- The possibility of revoking Canadian citizenship from dual citizens, who were members of an armed conflict with Canada or from Canadians who are convicted of terrorism, treason, or spying offences, depending on the sentence received.

- The proposed legislation covers a lot of ground and is complicated.  It is in need of clarity and many of its sections will likely face court challenges such that final interpretation is years away.

In my opinion, at least two aspects of the new law ought to be reconsidered.  The first concerns the notion that naturalized citizens must have the intent to reside in Canada at the time they apply for citizenship. The implication is that Canadians born in Canada are free to travel and reside wherever they wish, whereas naturalized Canadians risk revocation of citizenship status for misrepresentation in the event they live abroad after gaining Canadian citizenship.  Aside from contravening mobility rights guaranteed by our Charter of Rights and Freedoms, it establishes two classes of Canadian citizenship.  That is not a good thing.

My second bone of contention has to do with the non-recognition of time spent in Canada prior to becoming a permanent resident .  This change is particularly unfair to foreign workers and students, who became permanent residents in recent years but do not yet qualify for citizenship.  Their journey to becoming fully Canadian will be considerably longer.  These individuals have been paying their dues.  They have worked hard on temporary work permits and study permits to prove their value to Canada before they earned permanent residence.  They have formed ties in Canada, socialized and paid taxes.  To remove the credit for time spent in Canada before becoming a permanent resident is wrong.  At the very least, the new law should not be applied retroactively to anyone who has already applied for or achieved the status of a Canadian permanent resident.

This is not to say that there are no positive aspects to the proposed legislation.   The government has stated that the changes will bring the average processing time for citizenship applications down to under a year.  As well, citizenship will be restored to individuals who had lost it or never received it due to outdated legislation.  These “lost Canadians”, though few in number, will benefit from the new law.

Time will tell whether the Strengthening Canadian Citizenship Act lives up to its name.

New Canadians – The Lucky Few

February 28th, 2014

Under the current Citizenship Act, the minister can grant fast-tracked Canadian citizenship to alleviate cases of special and unusual hardship or to reward services of exceptional value to Canada. The minister used this power to make instant Canadian citizens of certain athletes, who had a shot at making the recent Canadian Winter Olympic team. That gesture could not have sat well with the tens of thousands of Canadian landed immigrants, who have been waiting two or more years for their citizenship applications to be finalized. I understand that not many of our Olympians benefited from this preferential treatment, but that’s not really the point. The optics leave much to be desired. Moreover, compare our government’s favourable treatment of would-be Olympians to the lack of appreciation extended to Afghan interpreters who risked their lives by providing their services to Canadian Armed Forces in the field of action. Not only were these courageous individuals not offered citizenship, they had to threaten court action just to gain permanent residency.

Keeping with the Olympic spirit, if we are to be candid, our government’s handling of the citizenship portfolio in recent times has been less than medal-worthy. In 2012, the most recent full year for which statistics are available, 189,000 applicants were caught in the citizenship backlog compared to just 17,000 the year before. It may be true that the number of new citizenship applications increased by 94,000 in 2012, but at the same time the backlog grew by more than 160,000. So while the input of applications had gone up, the government’s output was stuck in first gear. The net result is that a huge number of Canadian landed immigrants live in a state of uncertainty, making it difficult for them to travel and impossible for them to vote. Hmm…

The government has defended its underwhelming performance by blaming the increase in processing times on its efforts to crack down on residency and citizenship fraud. However, as one of my colleagues pointed out, the government has taken a sledge hammer to a very small problem. The amount of paper work many applicants are now required to submit borders on the ridiculous. Having to provide three years of phone bills and credit card statements has become commonplace. No wonder applicants have begun turning to the Federal Court to force the government to process their applications.

Now the government proposes to amend the current Citizenship Act in a way that will fundamentally transform the meaning, scope and processing of Canadian citizenship. In my next blog, I will examine the new definition of Canadian citizenship and what it means for soon-to-be naturalized Canadians.

Time to Change the Rules

January 28th, 2014

I never knew Edna Aldovino. She passed away last August in Toronto. Nonetheless, this blog is dedicated to her memory because Edna’s determination and motherly love are deserving of tribute.

Edna was from the Philippines and she came to Canada in 2009, under the Live-In Caregiver Program. This particular Canadian immigration program is different from other programs in that live-in caregivers are not granted permanent resident visas upon arrival in Canada. They first have to complete two years of full-time employment in Canada before becoming eligible to apply for permanent residency status.

This often means leaving behind children, who can only rejoin their live-in caregiver parent at the end of the permanent residency application. Edna, like many other live-in caregivers, was willing to put in long hours and withstand being without her child in the near-term so that her child would eventually have an opportunity to join her and make a better life for himself in Canada.

After a year in Canada, Edna was diagnosed with breast cancer. She knew it would be a race against time to accumulate the two years of employment and become a permanent resident, along with her only child Kenneth, before cancer got the better of her. So desperate was Edna that she put off her medical treatment until she completed her two years of work in early 2013. By then it was too late.

As sad as this story is, it gets sadder. The application process takes time and at the time of Edna’s death she had not yet received her permanent resident visa. When a principal applicant is deceased, the entire application is terminated. Though her son, now 20, was visiting her in Canada, he had only been granted temporary status. So not only has Kenneth lost his mother, but also his chance to make a life for himself in Canada, which was what Edna’s hard work and sacrifice was all about in the first place.

I understand that as a general rule it makes sense to terminate a permanent resident application if the principal applicant dies before a decision is made. However, live-in caregivers should be the exception to this rule.

We know how important live-in caregivers are to the families who employ them. We understand the quid pro quo – put in two years of hard work and you and your immediate family can call Canada your home forever after. We know in Canada that a handshake is a handshake. Edna completed her end of the bargain. We should now complete our end and allow Edna’s son to become a Canadian permanent resident.

Edna deserves to rest in peace.

Here’s to Hoping

January 6th, 2014

There has been a lot of buzz and some mixed opinion regarding the decision by Citizenship and Immigration Canada (CIC) to re-open, ever so slightly, the door to parent and grandparent sponsorship.

For anyone unfamiliar with this subject matter, the Canadian government, after a hiatus of two years, is once again permitting a limited number of Canadian citizens and permanent residents to sponsor their parents/grandparents. As of January 2, 2014, a total of 5,000 sponsorship applications in this category will be considered for visa issuance.

Some Canadians feel that granting permanent resident visas to elderly and soon-to-be elderly individuals makes no sense at all. They argue that these new arrivals are unlikely to contribute to Canada’s economic well-being and are quite likely to become net takers from our already overburdened healthcare system.

Others complain that there is a basic inequality built into the parent sponsorship program. These folks argue that eligibility is limited to the well-heeled and they have a point. The average annual income in Canada is around $46,500 and therefore many would-be sponsors will not be able to demonstrate that their total annual income meets the minimum necessary income to support themselves, their immediate family members residing in Canada as well as the parents they intend to sponsor. Are hard working Canadians, who earn a lower salary, any less deserving of family re-unification? There’s no simple answer.

At the end of the day, most Canadians will agree that we are demographically challenged and that the strategic intake of immigrants will be part of any solution to our aging population. We want the best and brightest from around the world to choose Canada as the place where they lay down roots. However, we’re not along in this desire. Other developed countries like the U.S., Australia and New Zealand are also looking to attract the cream of the crop, when it comes to young productive immigrants. All of the aforementioned countries allow for parent sponsorship in one form or another, and to remain competitive Canada will have to do the same.

Just before the New Year, one of my clients and I were interviewed for the Daybreak Show on CBC Radio. These issues and others were discussed.

Here’s hoping we get it right.

Citizenship Takes a Back Seat

November 27th, 2013

Canada, like most developed countries competes for talented would-be immigrants. Part of what makes Canada desirable is the clear path it offers to citizenship and a Canadian passport. The law stipulates that after residing in Canada for three years, the holder of a permanent resident visa may apply for Canadian citizenship. That much is clear, at least for now.

Less apparent is the length of time required for Citizenship and Immigration Canada (CIC) to process a citizenship application. Currently, routine cases move through the system in 25 months and more complicated cases take about 35 months to process. The reason for the lengthy delay is easy to explain. In the last five years the intake of citizenship applications has exceeded the output of applications by a healthy margin. In 2012 alone, input exceeded output by more than 150,000 and at the end of that year there existed a total inventory of 367,375 pending applications.

This state of affairs is nothing new for CIC. A few years back CIC was faced with a significant backlog of permanent resident applications under the Skilled Worker category. The Minister of Immigration solved that problem by terminating the applications of 280,000 individuals. Fortunately for permanent residents, the law and political considerations protect them from a similar fate.

Rumor has it that the government intends to reduce the inventory of citizenship applications and the accompanying lengthy processing delays by adding one more year to qualify for citizenship. By extending the residency requirement to four years from the current three years, CIC will acquire one year to output applications without any intake of fresh applications. In theory, this would work but politically it could be costly, especially in the immigrant rich suburbs of southern Ontario, which are perceived to be an important battleground in the next Federal election.

There is another solution. The government could leave the three year residency requirement in place and fund an adequate workforce to process the backlog and intake of new applications in a timely manner. In my opinion, that’s what should be done.

The Numbers Don’t Add Up

October 30th, 2013

As noted on CIC News, the Minister of Citizenship and Immigration this week tabled the Annual Report to Parliament on Immigration 2013. Not only does the report paint a picture of the current state of affairs in the sphere of Canadian immigration, it also provides a peek as to what’s in store for 2014.

Overall, Canada intends to take in between 240,000 and 265,000 new permanent residents next year. Of these, about 164,500 will be economic immigrants and about 68,000 will be sponsored family members. The remaining 28,400 will consist of humanitarian cases, mostly asylum seekers.

Certain aspects of the report stick out. Firstly, the much touted Expression of Interest (EOI) application management model that was going to be implemented in 2014 now has a target date of early 2015. Consultations between the federal government and the provinces and employers are still ongoing according to the report, and so one has to wonder if even the latest anticipated start date is optimistic.

Secondly, the Federal Skilled Worker (FSW) backlog of applications has essentially been worked through. From a peak of 640,000 people in 2008, the FSW backlog stood at 65,000 persons at the end of July, 2013. Taking into account the applicants in the backlog who will be refused and the applications processed between August and the end of 2013, there won’t be much FSW grist for the Canadian immigration mill as we head into 2014.

That the backlog was reduced, in good part, on the backs of close to 300,000 persons, whose applications were terminated by the government, is a whole other story that I have commented on in the past. Suffice to say that the decision to close files without a decision was controversial and arguments against it will be heard by the Federal Court of Appeal.

Thirdly, the numbers in the report don’t add up, at least with respect to the new economic immigrants projected for 2014. Something is missing. The figures provided (46,000 provincial nominees, 31,000 destined to Quebec, 15,000 Canadian Experience Class, etc…) fall well short of the 164,500 total number of economic immigrants mentioned in the report. Even allowing for some residual backlog and the meagre 2013 FSW Ministerial Instructions, it is hard to imagine reaching 164,500 unless a new set of Ministerial Instructions in 2014 opens the door to more FSW applicants.

Something To Think About

September 25th, 2013

Last Saturday’s terrorist attack on innocent men, women and children in a Nairobi shopping mall claimed at least 67 lives, at last report. Tragic as that is, many many more will spend the rest of their lives trying to cope with the images of the carnage they survived.

Among the fatal victims were at least two Canadians, one of whom was Annemarie Desloges, 29 years old and an employee of Citizenship and Immigration Canada. I extend my condolences to her family members, dear friends and colleagues.

I, like most Canadians, take so much for granted and in particular the peaceful nation in which we live. It took this awful tragedy for me to really comprehend just how dangerous it can be to take part in the foreign service of Canadians. To all of you who do, I express my sincere gratitude.

Let the Court Decide (Que la Cour statue)

August 29th, 2013


I thank my colleague and good friend Mario Bellissimo for bringing the following quotes to my attention.

“…That is a principle of Canadian law that is sacrosanct…you can’t revise things retroactively.”

You may be surprised to learn that the above words were uttered by Chris Alexander, then a backbench Member of Parliament and now the newly appointed Minister of Citizenship and Immigration.

Unfortunately, Mr. Alexander wasn’t referring to the 280,000 would-be Canadian immigrants whose applications, dating back to 2004, were recently terminated without processing by the government he represents. Rather, he was defending the actions of two fellow Conservatives, who had allegedly violated the spending provisions of the Elections Act during the last federal election. What troubled Mr. Alexander was that Elections Canada supposedly retroactively revised certain requirements after having accepted the candidates’ returns.

Once Parliament resumes in October, Mr. Alexander will have the opportunity to demonstrate that he is a person of principle and do right by the people whose applications were jettisoned. However, more likely than not, what’s good for the goose will do nothing for the gander. The fate of these applicants remains in the hands of the Federal Court of Appeal.

The foregoing serves as a lead-in to what this blog is really about. Last month, I commented on the Province of Quebec’s attempt to compete with the federal government in the odious retroactivity game. On the one hand, Quebec will not terminate older applications. On the other hand, they will impose new selection criteria to applications that were submitted prior to the adoption of the new criteria. In some instances, individuals, who submitted their applications years ago, will be negatively affected.

In a bid to outdo the feds, at this point in time Quebec is only offering to refund government processing fees to relatively few of the affected applicants . It’s hard to determine which government’s actions are deserving of the title “most repugnant”.

Like the Minister of Immigration, I too value the principles of Canadian law. Among them is the right to challenge injustice in the courts of law. For that reason, I have co-counselled with lawyer Mathieu Bouchard of the law firm Irving Mitchell Kalichman and we are filing a Motion To Institute Proceedings For A Declaratory Judgement and For A Safeguard Order in the Quebec Superior Court on behalf of one of my clients, whose application will likely be refused if the new regulations are retroactively applied to her case. We are asking the Honourable Court to declare Quebec’s retroactive regulations null.

Hopefully, justice will prevail.


Que la Cour statue

Je remercie mon collègue et bon ami Mario Bellissimo pour porter la citation suivante à mon attention :

“…That is a principle of Canadian law that is sacrosanct…you can’t revise things retroactively.”

Vous serez peut-être surpris d’apprendre que les mots ci-dessus ont été prononcés par Chris Alexander, à l’époque un simple député et maintenant nouveau Ministre de la Citoyenneté et de l’Immigration.

Malheureusement, M. Alexander ne faisait pas référence aux dossiers, remontant à 2004, des 280.000 candidats à l’immigration au Canada auxquels il a récemment été mis fin sans traitement par le gouvernement qu’il représente. Au contraire, il défendait les actions de deux collègues conservateurs, qui auraient violé les dispositions en matière de dépenses de la Loi Électorale lors de la dernière élection fédérale. Ce qui troublait M. Alexander, c’était qu’Élections Canada aurait supposément révisé rétroactivement certaines exigences après avoir accepté les rapports des candidats.

Lorsque le Parlement reprendra ses travaux en Octobre, M. Alexander aura l’occasion de démontrer qu’il est une personne de principes et qu’il rendra justice aux personnes dont les demandes ont été larguées. Cependant, il est plus probable que ce qui est bon pour pitou ne profitera pas à minou. Le sort de ces candidats reste entre les mains de la Cour d’Appel fédérale.

Ce qui précède constitue une introduction à ce sur quoi ce blog porte vraiment. Le mois dernier, j’ai parlé de la tentative de la Province de Québec de rivaliser avec le gouvernement fédéral dans le jeu odieux de la rétroactivité. D’une part, le Québec ne mettra pas fin à d’anciens dossier, mais d’autre part, ils vont imposer de nouveaux critères de sélection pour les dossiers qui ont été présentés avant l’adoption de ces nouveaux critères. Dans certains cas, des personnes qui ont soumis leurs dossiers il y a quelques années déjà seront affectées négativement.

Dans une tentative de surpasser le gouvernement fédéral, le Québec offre pour le moment seulement de rembourser les frais de traitement du gouvernement à relativement peu de demandeurs concernés. Il est difficile de déterminer laquelle des actions du gouvernement est digne du titre du « plus répugnant ».

Comme le ministre de l’Immigration, moi aussi j’apprécie les principes de la loi canadienne. Parmi eux, il y a le droit de contester l’injustice dans les tribunaux. Pour cette raison, l’avocat Mathieu Bouchard, du cabinet Irving Mitchell Kalichman, et moi-même nous nous sommes constitués co-conseils et nous déposons une Requête Introductive d’Instance pour un Jugement Déclaratoire et une Ordonnance de Sauvegarde à la Cour supérieure du Québec au nom d’une de mes clientes dont la demande d’immigration sera probablement refusée si les nouveaux règlements sont appliqués de manière rétroactive à son cas. Nous demandons à l’Honorable Cour de déclarer nulle la réglementation rétroactive du Québec.

Espérons que la justice prévaudra.

Monkey See, Monkey Do (Singe qui voit, singe qui fait)

July 30th, 2013


Taking a page from the Federal government’s book on unethical behaviour, the provincial lawmakers in Quebec City recently made it clear that they too can play fast and loose with the lives of would-be immigrants.

A few weeks back, the Quebec government officially announced important changes to the selection criteria of the Quebec Skilled Worker program, a category of immigration that ultimately leads to a Canadian permanent resident visa. These changes are scheduled to become effective on August 1st, 2013. One would have thought that anyone who applies on or after August 1st will be subject to the changes, but that the new selection criteria will not apply to anyone who is already in the queue or to anyone who manages to submit an application prior to August 1st. If you think that way, you would be wrong.

The immigration authorities in Quebec intend to apply the new selection criteria to all applications, for which preliminary processing has not begun by July 31st. In other words, the changes will be applied retroactively to candidates who applied, in good faith, months ago.

As noted above, the Quebec government has taken its cue from its Federal counterpart. Not so long ago, in a move that can legitimately be described as mean-spirited, our Federal government passed a law that effectively terminated the application of close to 300,000 individuals who had applied for a permanent resident visa under the Federal Skilled Worker category of immigration prior to February 27th, 2008. These applicants did nothing wrong. They followed all the rules and waited patiently in line for years, all for naught. Their files were never even assessed.

So far, the feds have gotten away with it. The Federal Court, while giving lip-service to the plight of the affected applicants, nonetheless ruled that the Federal government had acted within its power. The case is now before the Federal Court of Appeal.

I suppose the powers that be in Quebec are of the opinion that their form of retroactivity is less offensive than the Federal government’s version in that they will, at least, assess the applications submitted prior to the changes coming into force. While this may be true, in other ways Quebec’s proposed actions are even more unjust.

Applying new selection criteria to previously submitted applications is akin to moving the goal posts after the match has begun. That’s bad enough. What’s worse, is that there has been no indication that Quebec intends to refund applicants their government processing fees. Applicants were charged good money by the government to have their qualifications assessed according to a certain set of criteria. The government changes the criteria and now some applicants no longer qualify. The government keeps their money. This is a classic case of bait and switch, and flies in the face of Quebec’s strong consumer protection legislation.

It won’t surprise me to see a court action mounted against the Quebec government by a disgruntled applicant or group of applicants. While the application of selection criteria retroactively is repugnant, it is nonetheless legal, except as it applies to criminal law. However, the fact that it is legal does not absolve the government from the necessity of implementing the changes in a fair and non-arbitrary manner. By holding on to processing fees, the government may be helping the applicants’ case before the courts.

Stay tuned and we will keep you advised as developments occur.


Singe qui voit, singe qui fait

En s’inspirant des gestes récents du gouvernement fédéral qui traduisaient des comportements contraires à l’éthique, les législateurs provinciaux québécois ont récemment fait de même en prenant des libertés avec la vie des candidats à l’immigration.

Il ya quelques semaines, le gouvernement du Québec a annoncé officiellement des changements importants aux critères de sélection du programme des Travailleurs Qualifiés du Québec, une catégorie d’immigration qui conduit à un visa de résident permanent au Canada. Ces changements devraient entrer en vigueur le 1er août 2013.

On comprend facilement que toute personne qui soumet une application le 1er août ou après sera sujet aux changements. Mais plus que cela, le gouvernement a indiqué que les nouveaux critères seront applicables à certaines personnes qui ont déjà soumis une demande, de même qu’à ceux qui parviennent à présenter une demande avant le 1er août. Si vous aviez pensé que les dossiers soumis avant l’entrée en vigueur des changements ne seront pas affectés par les nouveaux critères, vous avez eu tort.

Les autorités de l’immigration au Québec ont l’intention d’appliquer les nouveaux critères de sélection pour toute demande dont le traitement préliminaire n’a pas débuté avant le 31 Juillet 2013. En d’autres termes, les changements seront potentiellement appliqués rétroactivement aux candidats qui ont soumis leur dossiers, de bonne foi, il y’a déjà plusieurs mois.

Comme mentionné ci-dessus, en agissant de cette manière, le gouvernement du Québec imite son homologue fédéral. Il n’y a pas si longtemps, dans un mouvement qui peut légitimement être décrit comme mesquin, que notre gouvernement fédéral a adopté une loi qui a mis fin efficacement aux dossiers de presque 300,000 personnes qui avaient soumis une demande de visa de résident permanent en vertu de la catégorie des travailleurs qualifiés fédéral avant le 28 Février 2008. Ces candidats n’ont rien fait de mal. Ils ont suivi toutes les règles et attendaient patiemment dans la file d’attente pour des années, et ceci pour rien. Leurs dossiers n’ont jamais été évalués; ils ont simplement été éliminés de façon rétroactive.

Jusqu’à présent, la tentative du gouvernement fédéral de mettre fin à ces dossiers a réussi. La Cour fédérale, tout en faisant preuve de sympathie pour les demandeurs concernés, a néanmoins statué que le gouvernement fédéral avait agi dans le cadre de son pouvoir. L’affaire est maintenant devant la Cour d’appel fédérale.

Je présume que les autorités québécoises sont d’avis que leurs changements rétroactifs sont moins offensifs que ceux du gouvernement fédéral, étant donné qu’ils vont au moins évaluer les demandes qui ont été présentées avant que les changements entrent en vigueur. Alors que cela est peut-être vrai, les actions proposées par le gouvernement du Québec sont encore plus injustes en d’autres égards.

En appliquant les nouveaux critères de sélection aux demandes déjà soumises, le gouvernement du Québec s’apparente à déplacer les poteaux de but alors que le match a déjà commencé. Juste ceci est déjà assez grave; mais pire que cela, il n’y a eu aucune indication que le Québec a l’intention de rembourser aux candidats leurs frais de traitement si leurs demandes sont affectés de façon négative par les changements. Les demandeurs ont soumis leur argent au gouvernement pour qu’ils puissent avoir leurs qualifications évaluées selon les critères en vigueur lors de leur soumission. En modifiant les critères après la soumission, certains candidats ne seront plus admissibles, mais le gouvernement gardera leur argent. C’est un cas de leurre, ce qui va à l’encontre de la forte législation en vigueur au Québec traitant de la protection du consommateur.

Cela ne me surprendrait pas de voir une action en justice menée contre le gouvernement du Québec par un candidat mécontent ou un par un groupe de candidats. Bien que l’application rétroactive de critères soit répugnante, c’est néanmoins légal en droit de l’immigration, ainsi que dans tout autre domaine juridique mis à part le droit pénal. Cependant, le fait que ces gestes sont légaux n’absout aucunement le gouvernement de la nécessité de mettre en œuvre ces changements d’une manière juste et non arbitraire. En gardant les frais de traitement, le gouvernement pourrait en effet aider la cause des demandeurs devant les tribunaux.

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