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Express Entry: Expressly Wrong on Older, English ‘Competent’ Economic Immigrants

Express-Entry-Tips

There is much that is good about Express Entry, the online application management system introduced by Citizenship and Immigration Canada in January 2015. Few can complain about the (so-far) expedited processing times and arguably even the program’s ability to scoop up the top, most qualified candidates. For all its glitches, Express Entry has helped modernize Canada’s previously broken first-come, first-serve paper-based system.

However, in my opinion there is something very bad – and in my mind, very misguided from a policy perspective, about Express Entry’s point system. I am speaking about the system’s unqualified prejudice against older migrants from non-English speaking countries. I believe this has negative consequences on our Canadian cultural mosaic and may even carry unintended economic consequences.

The Problem 

Express Entry’s point system awards to potential economic immigrants, allowing them to receive an Invitation to Apply (“ITA”) for Permanent Residence. In order to create a profile and enter the Express Entry applicant pool, applicants must first qualify for one of the three economic programs, the most popular of which are the Canadian Experience Class (“CEC”) and the Federal Skilled Worker (“FSW”) programs. Both programs have minimum language requirements in either English or French. For the CEC, the minimum language requirement depends on the classification of the skilled job for which the Applicant is claiming experience. For the FSW, performance on the required language tests above and beyond the minimum can increase one’s points towards their overall qualification for the program. For the most skilled positions under the CEC and for all FSW applicants, at least a “competent” level of English is required.

Only the FSW program considers age as a factor, although it is not a baseline requirement. Applicants under the age of 18 or over the age of 47 are awarded 0 points out of 12. As the overall point system is out of 100, for which 67 points is a minimum requirement, age is not a determinative factor for eligibility.

After meeting the basic requirements of one of eligible economic immigration programs, applicants are then scored according to the Express Entry’s Cumulative Ranking Score System (“CRS”). As 600 points of the maximum 1,200 points are allocated to having a valid job offer supported by a third-party employer either through a Labour Market Impact Assessment (“LMIA”) or a provincial nomination, a majority of potential applicants essentially compete within a 600-point system. As of the date of this article, a majority of the draws have been in the upper 400’s with several draws in the 500-700 point range. The lowest draw so far has been 450 points.

For Language and Express Entry, the English “competent” candidate earns an average of 64 points, assuming equivalency among their reading, writing, speaking, and listening sills. A candidate that is a “good” or “very good” user (keeping in mind that the later is a standard just below expert user/native speaker) is awarded an average of 116 points. In addition, these later candidates automatically increase their skill transferability (another important CRS factor) points adding anywhere from 16 to 50 points to their score depending on their education and work experience. It is therefore fair to say that applicants who are merely competent in English obtain 75 fewer CRS points then someone with greater (near native-speaking) competency.

From an age perspective, the effect on CRS points is even more pronounced. Under the CRS, a 45-year old applicant loses 110 points compared to a 20-29 year old applicant. Even a 40-year old applicant, with a spouse who could be much younger loses 60 points.

Consequentially, a competent English speaker (let us assume from a non-English speaking country) who is 40 years old, married with young children and who has a potential 25-year old working career in Canada loses 135 points right away.

To put it in perspective, even if the applicant obtains maximum scores in every other category they could only obtain a maximum 465 points out of 600, just 15 points above the lowest drawn score in 2015.

 

Not in Line Policy Research or Canadian Immigration’s Legislative Objectives

While the literature in this area is complex and varying in its results, it does suggest that Express Entry’s current policy on age and language is highly misguided.

A recent August 2015 Statistics Canada/CIC report suggests that language is not effective as a long-term economic-earning indicator.

This finding is not altogether surprising. In a 2012 article titled, “Language and Immigrant Labour Market Performance: What Does the Economics Literature Tell Us?” Canadian Economics Professor Mikal Skuterad asks whether it is reasonable to believe Canada can maintain current immigration levels and increase language criteria without sacrificing other desirable qualities of immigrants. In his piece, Professor Skuterad suggests that Canada’s emphasis on high language requirements may be too focused on short-term outcomes, and too neglectful of the importance of post-migration language training required via settlement services. In short, pre-migration language is an overemphasized indicator of economic success.

I would argue that age, while a long-term indicator of economic success according to the August 2015 CIC report, is overemphasized as a factor in Express Entry. Importantly, it is out of touch with economic realities. Our most recent studies of the issue in 2011 showed that even in Canada, where welfare and social services are readily available, the age of mothers at first birth was increasing towards record pace.

If we assume Canada is most desirable as a place of permanent residence for young families with the financial capacity to move and elementary/high-school aged children serving as a major impetus for the move, we should expect a high number of late thirties/early fourties applicants. Yet, this is the very group that Express Entry punishes through the prejudicial point system.

Overall, putting such a high emphasis on language or age of potential economic immigrants does not further the objectives of Canada’s legislated aims as stated in section 3 of Canada’s Immigration and Refugee Protection Act (the “Act”). The Act states:

Objectives — immigration

  • (1) The objectives of this Act with respect to immigration are
  • (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration;
  • (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada;

Combined, I would argue that creating a point system those only benefits younger immigrants from English-speaking countries does not serve to maximize the social and cultural benefits of immigration. If anything, a program that discriminates against older, non-speaking applicants narrows our country’s definition of the ‘desirable immigrant’ and creates an unnecessary, disincentive for economic immigration. Furthermore, while I do not believe past studies have been done on this issue, I would argue that the economic and immigration mobility of the types of fluent, young immigrants Canada currently desires will lead many to eventually pursue opportunities as overseas ex-pats rather than as Canadian-resident taxpayers.

 

Where do we go from here?

There is some hope. The governing Liberals have promised it will be re-examine the point system and may allocate additional points to individuals with Canadian relatives. However, I don’t think that is enough. I think it is enough that a potential immigrant meets minimum language requirements. I also think the age of a potential immigrant’s spouse and children should be qualifying factors. The 45-year old father of three Canadian kids who will have a lifetime to pay it forward to the Canadian economy should not be perceived as too old for Canada.

However, clearly some points are missing. Should students who studied in Canada receive more points under Express Entry? Should potential immigrants with current jobs held on other form of work permits receive more points? Arguably so. Should the economic immigrant who has started his or her own business or invested in the business of his or her son or daughter receive some points? Should an economic applicant who has a spousal sponsorship application in process receive additional points to facilitate their own immigration process? I would think that all the above would make sense.

Express Entry has much room to improve. Change, on the issue of language and age, is

 

 

 

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#Clawbies2015 – My Three Nominations

This year, thanks to the emergence of Canadian Immigration Law (hashtag: #cdnimm) as a major policy and election issue, I made my accidental entry into the blogging world. I know the path was paved by amazing bloggers before me, that deserve their credit for being fantastic resources – for their clients and for the interest of the public.

The three blogs I have nominated I read at least several times a week and keep me engaged and passionate about the practice of law.

My Nominations

1. Paul Daly’s Administrative Law Matters – I was only introduced to this blog less than a month ago but I have been religiously reading Professor Daly‘s analysis in this area. I think any practitioner that does tribunal work or Federal court work should read Paul before drafting their arguments.  In my mind, blog of the year.

2. Stewart Sharma Harsanyi Calgary Immigration Law Firm Blog – This blog could fit a couple of categories. The firm itself is doing great work out in Alberta. I think what makes Firm Partner and Lead Writer Raj Sharma‘s writing stand apart is that he interlaces his excellent legal analysis with literature and popular culture interpretations. If not best Practice Group blog, I would put this as one of the best blogs for non-lawyers to read as well for its ability to connect to those of all levels of immigration knowledge.

3. Meurrens on Immigration – I consider Meurrens on Immigration (written by my mentor and colleague, Steven Meurrens) to be the bible on immigration. He’s been quietly (but prominently) doing his thing since 2010. A still very young call (just over 5 if I remember correctly), he is already Chair of the CBABC’s Immigration Section and has been counsel of several important Federal Court decisions.  Steve’s blog adds value by providing the results of several access to information requests he coordinates with lawyers and consultants across the country. His work is truly ground breaking.

Those our my nominations. Best of luck to all the #Clawbies2015 participants!

W.

 

 

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Unpacking the Legal Phrase “Fettering Discretion”

Fettering definition

The phrase “fettering discretion” found its way into two important decisions released today.

In Trinity Western University v. The Law Society of British Columbia 2015 BCSC 2326 (“TWU-LSBC“), The Hon. Chief Justice Hinkson found that the Law Society of British Columbia Benchers incorrectly fettered their discretion by binding themselves to a ‘fixed blanket policy set by LSBC members in the form of a non-binding vote (at para 120).

In Kanthasamy v. Canada (Citizenship and Immigration) 2015 SCC 61  (“Kanthasamy” ) the majority decision (penned by Justice Abella) found that the Immigration Officer had unreasonably fettered her discretion  by avoiding the “requisite analysis” of s.25(1) of the Immigration and Refugee Protection Act (“IRPA”). The Majority found that the Officer’s  adoption of the Citizenship and Immigration Guidelines of “unusual and deserved or disproportionate hardship” as a threshold for humanitarian and compassionate relief, without a proper assessment of best interest of the child, was an unreasonable application of IRPA s.25(1).

The questions to be asked from this are:

  1. What does it mean for an officer to fetter their discretion?
  2. What is the correct standard of review (or is it case dependent)?

Definition

In TWU-LSBC, Hinkson C.J. does quite a thorough job of setting out the law of fettering discretion in British Columbia. He writes (emphasis added):

[97] Fettering of discretion occurs when, rather than exercising its discretion to decide the individual matter before it, an administrative body binds itself to policy or to the views of others: Hospital Employees Union, Local 180 v. Peace Arch District Hospital (1989), 35 B.C.L.R. (2d) 64 (C.A.). Although an administrative decisionmaker may properly be influenced by policy considerations and other factors, he or she must put his or her mind to the specific circumstances of the case and not focus blindly on a particular policy to the exclusion of other relevant factors: Halfway River First Nation v. British Columbia (Ministry of Forests) (1999), 129 B.C.A.C. 32 at para. 62 [Halfway River].

Hinkson CJ expands on this definition in paragraph 114 of his decision and writes (emphasis added):

[114] As discussed in the standard of review analysis above, fettering of discretion occurs when a decision-maker does not genuinely exercise independent judgment in a matter. This can occur, for example, if the decision-maker binds itself to a particular policy or another person’s opinion. If a decision-maker fetters its discretion by policy, contract, or plebiscite, this can also amount to an abuse of discretion. Similarly, it is an abuse of discretion for a decision-maker to permit others to dictate its judgment. As Mr. Justice Gonthier said for the Court in Therrien (Re), 2001 SCC 35 at para. 93:

 [93] It is settled law that a body to which a power is assigned       under  its enabling legislation must exercise that power itself and may not delegate it to one of its members or to a minority of those members without the express or implicit authority of the legislation, in accordance with the maxim hallowed by long use in the courts, delegatus non potest delegare: Peralta v. Ontario, [1988] 2 S.C.R. 1045, aff’g (1985), 49 O.R. (2d) 705…

[115] While Gonthier J. referred to a minority of the members of a body, I see no reason not to apply the same reasoning even to a majority of the members of a body like the LSBC whose elected or appointed representatives are assigned a power that requires the weighing of factors that the majority have not weighed.

This definition of ‘fettering discretion’ is mirrored in the Majority’s decision in Kanthasamy at para 32, where the court discusses the Officer’s use of the Guidelines on Humanitarian and Compassionate Grounds provided by CIC. The Majority writes (emphasis added):

[32] There is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act : Agraira, at para. 85. But as the Guidelines themselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing, s. 5.   Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1)  discretion, but should turn “[their] mind[s] to the specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans,Judicial Review of Administrative Action in Canada (2014), at p. 12-45. They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1) : see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.), at para. 71.

 

Standard of Review

In TWU-LSBC, Hinkson C.J. appears to adopt a standard of review of correctness – stating that the fettering of discretion is an area where the court owes an administrative decision-maker no deference. Hinkson C.J. writes:

[99] As Mr. Justice Finch (as he then was) explained in Halfway River at para. 58, the fettering of discretion is an issue of procedural fairness, which is an area where the court owes an administrative decision-maker no deference:

[58] The learned chambers judge held that the process followed by the District Manager offended the rules of procedural fairness in four respects: he fettered his discretion by applying government policy…[.] These are all matters of procedural fairness, and do not go to the substance or merits of the District Manager’s decision. There is, therefore, no element of curial deference owed to that decision by either the chambers judge or by this Court.

In Kanthasamy, the Majority adopts the reasonableness standard of review. However, arguably this was done with respect to the decision as a whole and not directly with reference to the issue of fettering discretion:

[44]              The Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71.  In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 23.  As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.

My Analysis

I want to bring in another definition of fettering discretion (going way back to the archives here) that I like personally. I found this on a Worksafe BC memo dated 20 December 1991 but I think it sets out the law quite clearly (emphasis added):

“A general principle in administrative law is that administrative bodies must not fetter their discretion. In other words, a body entrusted with a discretion must not disable itself from exercising its discretion in individual cases by adopting a fixed rule of policy. As summarized by Jones and de Villars in Principles of Administrative Law (Vancouver, 1985): … the existence of discretion implies the absence of a rule dictating the result in each case; the essence of discretion is that it can be exercised differently in different cases. (at p. 137).”

I think eventually there will need to be two standards of review for fettering discretion cases. When an officer is fixated on the application of a policy or discretion that is narrower than the written  law – I believe that the reasonableness standard should apply. For example, as in Cha v. Canada (Minister of Citizenship and Immigration) [2005] 2 FCR 503, the Officer unreasonably fettered discretion by adopting a narrower approach (not conducting a full analysis) in reaching a decision that legally flowed from the imputed act – the issuance of an s.44 report and subsequent deportation order.   However, if the officer is fixated of a policy that is broader than, or even more egregiously, contradictory, to the law I think it becomes an issue of correctness. I think that a blanket relevant/irrelevant considerations analysis is broad for the purposes of a fettering discretion assessment (see: Gleason J’s judgment in Jia v. Canada 2014 FC 596 at para 68).

 

Regardless, expect “fettering of discretion” to receive more judicial play in the years to come. I know in the immigration context, several refusals (subject to litigation) are based on discretionary applications of policy and Citizenship and Immigration Canada-generated requirements rather than the plain-language of the law.

Corresponding, you will likely see from this (if I were the government) more Ministerial Instructions and Regulations that codify existing policy. The reasonableness standard itself, where as long as balancing and factor consideration was arguably attempted is sufficient, may be enough to defend the decision-maker in those cases.

Ps. for a great article on “fettering of discretion” in the Canadian administrative law context check out Professor Paul Daly’s 2014 post “Fettering of Discretion and the Reasonableness Test” here. 

 

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Seven Things You Should Know Canadian Parent and Grandparent Class Family Sponsorship Program in 2016 and Five Policy Changes I Would Implement

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Introduction

On November 23, 2015, Citizenship and Immigration Canada announced the details of 2016’s offering of the much-anticipated Parents and Grandparent Family Sponsorship Program. The full details of the program can be accessed here.

For the past several years, this program often fills up by the second week of January. In fact, many applicants submit their applications by express courier just prior to the New Year to ensure arrival by the program’s opening date.

This year’s program comes with even more anticipation as the Parent and Grandparent Class was at the forefront of at least two  pre-election promises of the Liberal Government.

In their pre-election platform paper “A New Plan for Canadian Immigration and Economic Opportunity,” the Liberals set out those promises as follows:

  • Nearly doubling the budget for family class immigration processing, in order to restore processing times to the levels achieved before the Harper decade.
  • Doubling the number of new applications allowed each year, for parents and grandparents, from 5,000 to 10,000.

These proposed ideas found themselves into Prime Minister Justin Trudeau’s Mandate Letter to Immigration, Refugee, and Citizenship Minister John McCallum where these promises are reiterated as follows:

  • As part of the Annual Immigration Levels Plan for 2016, bring forward a proposal to double the number of entry applications for parents and grandparents of immigrants to 10,000 a year.
  • Develop a plan to reduce application processing times for sponsorship, citizenship and other visas.

So how will this year’s application process fair? How would I change things?

Ten Things to Note

  1. This year’s program opens up on 4 January 2015 at 8 am Eastern.
  1. There will be a cap on accepted applications. The current cap on new completed applications is 5,000 (pending any future Ministerial directions or changes provided in the 2016 Immigration Levels Plan).
  1. Law Firms/Consultants Beware – Citizenship and Immigration Canada is not accepting bulk Applications. Each must be individually packaged and enveloped.
  1. Minimum Necessary Income For Sponsorship Has Increased Again
Federal Income Table for Parents and Grandparents Sponsorship
Size of Family Unit Minimum Income
2014
Minimum Income
2013
Minimum Income
2012
2 persons $38,272 $37,708 $36,637
3 persons $47,051 $46,354 $45,040
4 persons $57,125 $56,280 $54,685
5 persons $64,791 $63,833 $62,023
6 persons $73,072 $71,991 $69,950
7 persons $81,355 $80,153 $77,879
If more than 7 persons, for each additional person, add $8,271 $8,148 $7,929

Note that an Applicant must meet or exceed the Federal Income Table from the date the sponsorship is signed until the day the family members become permanent residents. What this means is for the 10 years that an application is in processing, a sponsor theoretically has to meet the requirement in every year and can be subject to reassessment at any time.

  1. Processing Times are Currently Astronomical – averaging 9-10 years total, with bulk of time spent at Visa Offices around the World

Parents and Grandparent sponsorship works on a two step process (much like Spousal Sponsorship via the Outside Canada Family Class process). The first stage, assessed at Case Processing Centre Mississauga, where the applications are received, is currently taking 48 months (i.e 4 years). Currently, they are working on applications received on or before November 4, 2011.

Following this, the applications are sent overseas for assessment. During stage two – the process is currently taking anywhere from 1 year to 7 years at some visa offices. Averaging out at around 5 years.

CIC has posted average processing times (last updated 10 July 2015), and they are available below:

Last quarterly update: July 10, 2015

Africa and Middle East
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Abu Dhabi – United Arab Emirates 35
Accra – Ghana 79
Amman – Jordan 77
Ankara – Turkey 77
Beirut – Lebanon 79
Cairo – Egypt 72
Dakar – Senegal 77
Nairobi – Kenya 79
Pretoria – South Africa 67
Rabat – Morocco 76
Tel Aviv – Israel 63

 

Asia and Pacific
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Beijing – China 71
Colombo – Sri Lanka 74
Hong Kong – China 62
Islamabad – Pakistan 80
Manila – Philippines 76
New Delhi – India 77
Singapore – Singapore 75
Sydney – Australia 35

 

Europe
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bucharest – Romania 75
Kyiv – Ukraine 71
London – United Kingdom 82
Moscow – Russia 74
Paris – France 71
Rome – Italy 66
Vienna – Austria 81
Warsaw – Poland 66

 

Americas
Visa Office Processing Times IN MONTHS
(based on a complete application package)
Bogota – Colombia 65
Buenos Aires – Argentina 76
Guatemala City – Guatemala
Havana – Cuba
Kingston – Jamaica 78
Lima – Peru 26
Los Angeles – United States 83
Mexico City – Mexico 74
New York – United States
Ottawa (Case Processing Centre) – Canada 69
Port-au-Prince – Haiti 53
Port of Spain – Trinidad and Tobago 74
Santiago – Chile
Santo Domingo – Dominican Republic
Sao Paulo – Brazil 22

 

Essentially, if my numbers are correct – it will be a least a decade until many Canadians see their parents/grandparents. These are 10 years that many Canadian families simply do not have with the increasing age and declining health of elderly parents and grandparents.

  1. Undertaking for Sponsors is for 20 years

This means that you must promise to provide financial support and basic requirements for the person you are sponsoring including – food, clothing, utilities, personal requirements, shelter, fuel, household supplies, AND any health care not provided by public health such as eye and dental care.

If your family member receives financial support from a federal, provincial, or municipal program while the undertaking is valid you will be considered to be in default which will have consequences for any other sponsorship application.

  1. Your Spouse/Common-Law Partner is the only one who can act as a Co-Signer.

Five Policy Suggestions Moving Forward

If I were advising the Minister, I would have the following suggestions on how to improve the Parent and Grandparent Sponsorship Program:

  1. Contact individuals in the current four year queue/waitlist and ask for updates on their family. Offer an expedited/expanded super-visa option (3 years) to any family who has an urgent need.
  1. Create a second 5,000 draw. Have this draw conducted randomly with a select portion set aside for humanitarian and compassionate circumstances. Promise 2 year processing on this set of applicants. Offer all applicants the option to convert to a super visa at any time during processing;
  2. Announce the end of first-come, first-serve family immigration. I believe it is out of line with the rest of the Canadian immigration programs focused on quality and quantity rather than speed of application;
  1. Explore the option of an electronic ‘points-based’ process for a selection of family class applicants (perhaps ones that qualify for expedited) – 2 year processing. Criteria can include families that can demonstrate the greatest need (i.e. need for parent/grandparent to take care of child in case of two working parents) or other grounds necessitating family reunification (no family member/spouse in home country); and
  2. Allow other Canadian siblings other than the principal sponsor/co-signer to act as sponsor for the purposes of Minimum Income Requirements for the Federal Sponsorship Table. Have the requirement be a proactive provision of an account showing locked/frozen funds over the period of processing.

What are your thoughts on parents and grandparents? Would love to hear them in the comments below.

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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