February 2002

New rules set for a challenge

Migrants will have to tough it out

Canada's long awaited new immigration policy faces likely legal challenges which could spark further changes before it is finalised after February 15th, writes Steve Hartridge.

Although the basic provision of the new selection rules have been known for many months, the details of the policy where just announced before Christmas, are proving to be the most controversial immigration amendments for many years.

At the heart of the hue and cry is a new point test threshold, which has been raised from 70 to 80.

Critics say, this will slam Canada's door shut to all but the highly qualified of candidates.

For General skills migrates without family in Canada, the new points test-which kicks in on June 28th -puts much more emphasis on education, language skills, work experience and job offer, and less emphasis on having a specific occupation.

But the most controversial clause is that the new rules will applied retroactively .

Meaning , from June 28th,the new grid will be used to assess application ALREADY IN THE SYSTEM.

BACKLOG

In the past, when major changes have been brought in prospective immigrants with application already in the pipeline had their files process posts throughout the world former-former Immigration Minister Elinor Caplan says the backlog number up to 500,000-tens of thousand immigration applicant could find themselves disqualified -even though they applied under a selection system where they would have qualified.

An important distinction has been made between applications received before and after December 17th 2001.

Independent and Assisted Relatives immigrants who are Interviewed ( or have their interview waived) before implementation on June 28th will continue to be assessed against the present regulations.

Independent and Assisted Relative immigrations who apply on or after December 17th, 2001 and who have not been interviewed ( or have not had their interview waived) before implementation of the new Act will assessed against the new Skilled Worker regulation and a pass mark of 80.

Those Independent and Assisted Relatives a immigrants who applied before December 17th, 20001 and who have not been interviewed ( or had their interview waived) before the implementation of the new Skilled Worker regulation , but will require a lower pass mark of 75.

Until February 15th , the new provision will remain in a draft format: a 60 day period has been set aside for Canadian to suggest changes and amendments.

A spokesperson for the Canadian High Commission of in London said all the while the proposals remain in draft form it will continue processing General Skills application against the old criteria.

Until February 15th at least it'll be as we were with regards to General Skills application' said the spokesperson .

They contended that applicants who would have been successful under the existing rules would still likely qualify under the new policy.

‘Successful applicants will still have to have the same combination of factors as before: good job skills , sounds education, work experience, work experience, language ability and be of good character and health.

‘We'll still be looking at the whole picture', said the high commission spokesperson.

‘We'll still be looking at the whole picture', said the High Commission spokesperson.

‘Well still expect to see evidence the applicant has done their research and has assessed their own chances of successfully settling in Canada'

But such was the outcry over the tough new criteria's -particularly in Canada immigration department immediately braced itself for legal challenges.

Immigration lawyers said they would challenge the retroactive clause by arguing their clients had already been treated unfairly because they submitted their application and fee under one system only to have the goalposts later moved.

‘I would imagine there will be a wave of legal challenges , now that the flesh has been put on the bones of the policy' commented Quebec -based immigration lawyer and member of the Canadian Bar Association and Immigration Selection Board of Canada, Herbert Brownstien.

‘It seems totally unfair to ask someone to apply under one set of rules, cash their cheque and then say, ‘sorry but we're changing the rules'.

‘ It's like buying a ticket three months in advance for the Harry Potter movie only to turn up on the day and a different film is showing and the cinema manager says, ‘sorry, no refund', added Brownstein.

He said up to 85 % of his clients who would have succeeded with their application under the older rules would likely be disqualified under the new criteria.

Former Immigration Minister Elinor Caplan has stated: Consultants and lawyers are more concerned about their clients than Canada's changes needed in the 21st century.

I'm concerned about the Canadian public interest.'

‘ Besides, I don't agreed with the consultants. We believe that a similar number s that qualify now will qualify under the new rulers,' she added.

Although at this time late stage in the legislative making process the Government does not usually make substantives changes in draft regulations-they have already gone thought a considerable vetting procedure-Caplan appeared to be living the door open to possible amendments. She said: ‘ the department could reconsider, if that's what the people want us to do.

‘The pass mark is not carved in stone, if people want to debated whether 80 is too high or not , that's what this consultation period is all about.

‘ Canada needs immigrants, and the new regulations are aimed at bringing the best and the brightest to Canada,' said the minister, who reiterated her goal was not to reduce the number of immigrants arriving in Canada but to move towards setting immigration at 1% of the population, that's about 300,00 a year.