Questions and Answers
Q: What are the key changes to the Immigration and Refugee Protection Act (IRPA) being proposed?
a) Currently the law says (at section 11) that an officer “shall” issue a visa if the applicant meets the requirements of the Act. This is changed in the bill to say an officer “may” issue a visa if the applicant meets the requirements of the Act.
b) Currently the law says (at section 25) that the Minister “shall” examine an application for humanitarian and compassionate consideration (H&C). This is changed in the bill to “may” examine the application if the applicant is outside Canada.
c) The bill gives the power to the Minister to issue instructions for the processing of applications from economic immigrants and H&C applicants outside Canada. The instructions could establish categories of applications to be processed, determine the order in which the applications should be processed, fix a limit on the number to be processed, and provide rules for repeat applications.
d) The bill empowers the government to retain, return or otherwise dispose of applications that, following the instructions, are not processed. This only applies to applications subject to instructions, ie. economic immigrants and H&C applicants outside Canada.
Q: Do these changes affect refugees and Family Class applicants?
The new power to issue instructions does not apply to applicants in the Refugee or Family Classes (i.e. refugees recognized in Canada as well as those resettled from abroad, and their dependants, and people sponsored by a family member). These applicants therefore will not be directly affected by new rules about priorities for processing, limits on numbers to be processed, etc. CIC will continue to process all applications in the Refugee and Family Classes to final decision.
However, refugees and people seeking family reunification could be affected by the other changes:
- All classes, including refugees and Family Class, are affected by the change from “shall” to “may” in section 11. This change means that refugees and Family Class applicants will no longer have the same legal right to permanent residence if they meet the requirements of the law.
- Overseas humanitarian and compassionate applications are often the only way for refugees and others to be reunited with immediate family in Canada. The bill will eliminate the legal right to have an overseas H&C application examined.
Q: Why do people need to seek family reunification through an overseas H&C application?
The following are two situations where the law does not provide children with a right to family reunification and humanitarian and compassionate applications are the only recourse:
- Separated refugee children in Canada cannot apply for family reunification with their parents and siblings who are outside Canada. The only way for these children to be reunited with their parents and siblings is through H&C.
- The excluded family member rule (Regulation 117(9)(d)) keeps many children unfairly separated from their parents, and separates spouses. The only way for affected families to overcome the exclusion is through H&C. (See CCR release, Children separated from their families by immigration rules, 7 April 2008, http://www.ccrweb.ca/eng/media/pressreleases/7april08.htm)
Q: Will the changes affect people seeking family reunification through H&C?
The government has suggested that they would continue to examine all family related H&C applications. However, the bill eliminates the legal right to have an overseas H&C application examined. If the bill is passed, this government or a future government could issue instructions leading to family related H&C applications not being examined.
It is also important to recognize that there are other compelling situations not related to family reunification where an H&C application is the only recourse. They might never be examined if this bill is passed.
Q: Why is the government eliminating the right to have an overseas H&C application examined?
The government has suggested that there are large numbers of applicants in the Economic Class who seek H&C because they do not meet the points. However, they have not made public the actual numbers. It would seem surprising if many people are doing this as it would be quite expensive and have little chance of success.
Q: Will the changes allow the backlog of immigration applications to be eliminated?
No. The bill only affects applicants made after February 27, 2008. The backlog is made up of applications from before that date and they will not be subject to the new instructions.
Q: What will happen to applications that are not processed?
The government has suggested that where an application is not going to be processed, it will be returned and the fee reimbursed. However, the government is giving itself the power to retain, return or “otherwise dispose of” applications not processed. This means that they will not be legally obliged to return the application and reimburse the fee – they could simply discard the application.
Q: What will be in the instructions for processing Economic Class applicants?
It is difficult to say, since the government has chosen not to publish any draft instructions. The Minister has suggested that they could identify certain categories of worker for priority processing (she gave the example of medical professionals). (See CBC, The House, 5 April 2008). It also seems likely that the government plans to set limits on the number of applications to be processed: once the limit is reached, further applications will not be processed in that year and can be simply returned.
Q: Should we be concerned about the proposed amendments?
Yes, see 10 reasons why: http://www.ccrweb.ca/documents/c50tenreasons.htm.
Q: What can we do?
Organizations and individuals can join their voices to those calling for the amendments to be separated out from the budget bill, C-50, and instead debated in full as a distinct bill to amend the Immigration and Refugee Protection Act.
11 April 2008
Release on Bill C-50, Legislative amendments will hurt family reunification for children, 17 March 2008
Citizenship and Immigration Canada, Amendments to modernize the immigration system