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Canada could face lawsuits if it legislates away immigration backlog

By Kristen Shane

Featured in Embassy Magazine.

This is the most significant change in immigration policy in more than a decade.” Changes are designed to shift the skilled migrant category “from one that provides for the passive acceptance of residence applications to one that promotes the active recruitment of the skilled migrants.” No one wants to see “skilled migrants driving taxis, cleaning offices and cooking hamburgers.” Sound familiar?

Prime Minister Stephen Harper first spoke of “significant reform of our immigration system” at the World Economic Forum in Davos, Switzerland in January.

On March 7, Immigration Minister Jason Kenney gave a major policy speech to the Economic Club of Canada in Ottawa outlining expected “transformational change” to match migrants with “large and growing labour shortages” across Canada. Mr. Kenney said it’s necessary to move “from a slow, rigid, and passive immigration system to a fast, flexible, and responsive immigration system.”

But those familiar words written above weren’t Mr. Kenney’s. They were that of Lianne Dalziel, while she was New Zealand’s immigration minister in 2003.

She was referring to changes in July of that year that saw New Zealand move to an expression-of-interest system in which skilled migrants would be plucked from a pool of prospective applicants. It’s no wonder Mr. Kenney is echoing her words; he’s interested in mirroring her government’s actions too. Since his Economic Club speech, Mr. Kenney has talked to national media, setting the table for a year’s worth of immigration reforms while constantly citing elements of the immigration systems in New Zealand and Australia as models for Canada.

Commentators on both sides of the Pacific note the successes those countries have had in tailoring their systems to ensure immigrants get jobs. But some also warn against adopting some parts, such as retroactively changing application criteria to wipe clean a backlog, without learning from the costly lessons these countries have already faced.

The Pacific model revealed

On March 7, Mr. Kenney emphasized what he saw as Canada’s burdensome backlog of about one million applications in the skilled migrant and other categories. He pointed out that New Zealand legislated an end to its backlog in 2003 with the start of Ms. Dalziel’s policy changes.

He also noted that Australia started requiring prospective skilled immigrants to get their professional credentials assessed before they arrive onshore, “with very positive results.”

Three weeks later, Mr. Kenney announced he would seek to have foreign skilled workers’ education credentials assessed before they arrive in Canada. The next day, the 2012 federal budget proposed wiping away more than 280,000 skilled worker applications filed before February 2008.

Mr. Kenney has floated other ways Canada could copy from Australia and New Zealand such as by adopting an expression-of-interest system and stricter language requirements, as well as taking their lead in reforming the investor class, and using Australia’s balance of-family test to assess parent and grandparent applications. Canada, New Zealand, and Australia share similar immigration trends and already hold similar policies.

Beware of wiping out the backlog

In the 1990s, a relatively large number of migrants to New Zealand were without jobs. At the same time, like Canada, New Zealand saw a blooming skilled worker application backlog, rising to 20,000. This led to Ms. Dalziel’s 2003 policy changes. New Zealand started putting initial applications, known as expressions of interest, meeting a minimum number of points, into a pool; all other applications are scrapped. Those in the pool with the most points are invited to apply for residence. The government draws from the pool every couple weeks, using a floating points threshold based on employer needs. The pool is also wiped clean every few months; applicants can re-register.

The government intends to open the doors to people selected from the pool almost automatically if they have a relevant job offer or have worked or studied before in New Zealand. If not, they are put in a work-to-residence program. In moving to this new system, the government estimated that up to 10,000 applicants under the old system would not meet the new criteria so it expected to spend $9 million to refund the fees they paid and stop their applications. For this, New Zealand’s government felt the wrath of immigration consultants and denied applicants—something Canada could face in doing the same.

“By creating policies that take effect retroactively, you offer no sense of security to applicants whose basis for deciding whether or not to apply are policies existing at the time of their application,” wrote Carolyn Caaway, a resident of the Philippines, in an open letter toMs. Dalziel posted on the Internet. In the end, said New Zealand migration expert Richard Bedford, the government phased in the new system while it processed old applications from the backlog.  “But the backlog wasn’t a huge backlog,” said Mr. Bedford, a professor at the University of Waikato National Institute of Demographic and Economic Analysis in New Zealand. Canada’s backlog is much larger.

Ms. Dalziel had also previously run up against similar criticisms when her government upped the number of language points applicants needed. They challenged the retroactive change in court, and the immigration department lost. The Canadian immigration department lost a similar lawsuit in 2002 after it raised its points pass mark retroactively. Now, with Mr. Kenney leaving the option of legislating away the backlog, and already taking steps to halt all skilled worker applications from before 2008, immigration lawyers are gearing up for a fight. Toronto lawyer Lorne Waldman said earlier this month that more than 100 applicants interested in challenging the skilled worker backlog scrap contacted him. “I’m looking at all the legal issues arising and I expect that we will be taking legal action,” he said.

“I think we’re already being sued by people for not processing their applications quickly enough. So, quite frankly, dealing with this [backlog] problem decisively I think will reduce any legal risk that may be posed to the government,” said Mr. Kenney, when asked about the potential for lawsuits. Observers are split on whether Canada should legislate away the backlog. “In Australia and New Zealand it’s been avery effective mechanism for governments to be able to make changes and not be caught for the 10 years following the policy change in having to continue to select people by the old system,” said Lesleyanne Hawthorne, an expert in international skilled migration flows and a professor with the University of Melbourne in Australia. Mr. Bedford said he didn’t think Canada should legislate away the backlog “because you have huge loss of faith if you do that.”

Expression-of-interest system

Mr. Kenney speaking to CBC radio’s The Current last month said his government is “looking closely at” the expression-of-interest  system New Zealand developed. He, however, described the group of initially accepted expressions of interest as “a big resume pool” that candidates would consent for employers—and in Canada’s case, provinces—to draw from. That’s not quite how it works in New Zealand, according to Susan Jones, a spokesperson for New Zealand’s Department of Labour. While other programs do connect employers with prospective migrants, “employers and third parties do not have access to the Expression of Interest pool,” she said. In any case, the New Zealand system works well for bureaucrats, said Iain McLeod, a managing partner with a New Zealand immigration consultancy firm. It controls their workflow. But it’s essentially a “holding pen,” he said. “In that pool, you have no rights. If you are never selected, tough luck,” he said.

But Mr. Bedford said the expression-of-interest system is “much fairer on the migrant.” It allows prospective applicants to get a decision quickly, and it’s more transparent in that they won’t be subject to massive retroactive changes. Mr. McLeod noted a problem with the Canadian government’s desire to move toward the Pacific route of putting applicants with pre-arranged job offer at the head of the line and placing a premium on in-country work or study experience.

Employers want to see their recruits and know that they are able and have the authority to start within a few weeks. Unless Canada’s bureaucracy can work along that timeline, the scheme won’t work, he said. Canadian observers have also raised fraud concerns. The government would have to ensure employers don’t make bogus job offers, or pay migrants lower than they would Canadians doing the same job.

Changing focus

Ms. Hawthorne said if Mr. Kenney wants to make economic migration better connect immigrants with jobs in their fields, his proposed changes patterned after Australia are a good step.

“I think the items that he is proposing are very likely to increase employment outcomes for economic migrants who come into Canada,” she said. Canada and Australia both started out with the ‘human capital’ approach to economic migration, she said. The perception was that people with general work experience should be able to adapt to changing labour-market conditions.

While Canada stuck with that method, Australia in the last decade focused on whether immigrants were finding jobs fast. Australia required principal applicants be pre-screened independently for English language knowledge. It opened up a path to permanent residency for international students who finished courses there, which Canada followed in 2008. Increasingly, regional governments have more selection power, as in Canada, but also employers, she said.

In the late 1990s, about 60 per cent of principal applicants to both Canada and Australia had found some form of work within six months of arriving. But with Australia’s changes, Ms. Hawthorne noted that its employment outcomes shot up to 83 per cent by about 2002 while Canada’s stood still, despite near-identical economic trends.

“ I think what [Mr. Kenney is] clearly identifying is the key measures that have greatly improved our outcomes,” said Ms. Hawthorne.

While Canada is looking to model elements of Australia’s system, Toronto immigration lawyer Mario Bellissimo noted that when Australia implemented reforms in the 1990s, “they really did look from A to Z.” Canada should be wary of cherry-picking some reforms over others, he said.

kshane@embassymag.ca


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