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January 15, 2020

2020 Is Hindsight

Posted by Mario Bellissimo - Bellissimo Law Group PC

Happy New Year!  Happy 2020.  It sounds so futuristic.  Yet here it is.

What do we know now in 2020 in hindsight in the world of Canadian Immigration Law, Policy and Processing that we did not know before? 

Well if there was any question technology would play a huge role in the world of Canadian Immigration Law, Policy and Processing, that has been definitively answered.  From paperless applications, Express Entry algorithms, and of course the ever-expanding use of “artificial intelligence solutions” (AI) since as early as 2014 in the processing of permanent and temporary migrant applications. There is great interest in AI, a shiny new tool with great promise, as to its scope, potential and how it may change the world of Canadian immigration.

What about provinces and now even cities and municipalities having more say in immigration selection and settlement? 

Are the demographics turning out to be true do we need more rather than less new immigrants each year?

Is the just in time immigration system we dreamed about a decade ago becoming a reality?

What do we know now or better understand more than before?

What has not changed is Canada, like many countries, continues to find ways to increase global competitiveness surrounding immigration. Admission of a steady increase of immigrants continues to be critical to our overall social as well as economic well being. And yes, to ensure that newcomers meet Canada’s current labour market needs and shortages, and for the country to move towards a “just in time” immigration system, AI does offer exciting possibilities and can be transformative.  We are beginning to see the future.

Provinces and municipalities want more say.  This is understandable.  Unquestionably, the immigration system, to deliver optimal results must be synergized.   However, what hindsight has taught us is benefits may also be undermined in its application by a lack of transparency, potential perpetuation of historical bias, privacy concerns, and traditional processing challenges.

AI tools must conform to the foundational legal principle, namely that unless the Government clearly indicates otherwise, individuals ought to be able to know the law and order their affairs in conformity with known law. This is at the very heart of the Canadian Constitution, wherein the preamble provides.  We do not want a repeat of the 2013 termination of portions of the Federal Skilled Worker backlog.   

So, the introduction of AI solutions within the Canadian immigration context has the potential to promote efficient processing of applications, thereby reducing the delays that currently plague many of the immigration and visitor application streams. Yet as we speed forward a seemingly trite observation that again we benefit from hindsight the immigration process involves humans in conversation, in relationships, and with very high stakes.

The use of AI presents expanding areas of concern and uncertainty, yet to be explored and litigated before the Federal Court. Through the implementation of additional AI steps and screening, applicants may now be faced with multiple stages of review, some before they even submit an application. The dye may be cast because they have filed their application based upon similarly situated others. As immigration counsel it is important to be alive to potential issues facing clients amidst the changes. Leaving incredible scope and implementation of AI to government without meaningful input from stakeholders opens the initiatives to serious criticisms and concerns regarding transparency, lack of oversight and potential manipulation, intended or not.

For example, what are the parameters of the pool of information? If IRCC draws upon visa officer decisions on temporary entry applications, do any of those decisions include cases that were ultimately judicially reviewed and returned for reconsideration? How does AI account for the number of decisions that although not legally challenged the reasons upon legal review could be categorized as procedurally unfair or unreasonable? Many serious questions linger as to how this predictive technology is being developed.

The trend is here to stay. Given the global race to achieve major gains in this new technology, expect additional funding announcements, and AI companies to deliver software and hardware applications rapidly over the next five years.  However, should AI applications become standard and envelop the immigration sphere for use by border agents/ immigration officers and legal professionals alike, we must not forget the distinguished nature of discretion. By championing discretionary decision making, we will remember the power of the human – at the centre of the application, and the process. The use of AI applications should not become standard practice at the cost of individual judgement, compassion, and discretion. Individualized assessments must remain a red line.

AI will undoubtedly fundamentally alter the manner in which immigration applications are processed. However, should the sharp and shiny new tool of AI bypass consensus building, measured scrutiny and worse yet, the rule of law immigration decision-making could devolve into a moving target based upon the latest algorithms. We cannot succumb to techno-solutionism that does not preserve at our democratic core a country of invitation, fairness and openness that is responsive and promotes economic, social and cultural nation building on a solid, fair and predictable legal foundation. Fuse the two, and we will see one day in hindsight, a new and better Canadian immigration system awaited.  

Thank you for reading.