May 15, 2015
CBA Conference – A Huge Success!
Retrospectivity, Ministerial Instructions and Mandamus Focus of My Presentation
With a record attendance of nearly 500 delegates at the annual Canadian Bar Association National Immigration Law Section Conference, the jam-packed three day conference was a tremendous learning, networking, and sharing opportunity. I participated as a speaker in a session titled Federal Court Update: Not Just for Litigators, along with the Honourable Mr. Justice De Montigny, and Keith Reimer from the Department of Justice (Vancouver)– both of whom are excellent speakers. This session was skilfully moderated by Claudia Molina, and was overall, well-attended and productive.
In the paper I wrote for the conference I highlighted the following points:
Each year complex legal issues are decided before the Federal Court as the jurisprudential and legislative evolution of the Immigration and Refugee Protection Act (IRPA) in particular, unfolds. The resulting case law is not just for litigators though, as it impacts every aspect of immigration lawyers’ practices from legal strategy to professional and ethical obligations. In this paper I will look at three interrelated areas of immigration law that are central not only in the courtrooms, but in boardrooms, in the online clouds, at ports of entry and everywhere in between.
First, the use of retrospective lawmaking has gained significant attention because of the increasing prevalence of this legal tool in immigration law and policy. Despite a presumption of prospectivity, retrospective law has become part of our working paradigm, altering immigrant client expectations and presenting new challenges for immigrant applicants and lawyers. Retrospective laws can impact predictability and certainty, and can alter the status quo with potentially serious consequences for various applicants. I will examine what retrospective law is, and will provide some practical tips in navigating a challenging area of law.
Second, I will look at the use of Ministerial Instructions (MIs) in immigration law. Since the implementation of section 87.3 of the IRPA in 2008, MIs have led to major changes in the Canadian immigration regime. Various immigration categories or applications have been paused, terminated, reformulated, capped, and fundamentally transformed. Among the many potential questions that arise from these changes, I will focus on what are the legal effects and scope of MIs in the new Express Entry Model (EE).
Third, the use of mandamus has increased dramatically in the past few years as applicants attempted to compel processing of certain applications in view of impending changes to the law, mainly termination of Federal Skilled Worker (FSW) and Investor applications. I will examine the use of mandamus applications to spur processing. Among other questions I will examine how long is too long, emerging themes, and what are the key factors in deciding when a mandamus application should be pursued.
Concluding Comments . . .
Overall though, as I have written before, if retrospective laws and MIs that alter the playing field with little to no notice become common place, predictability may be relegated to the scrapheap, replaced by a reality of looming retrospectivity whenever the perceived need arises. These types of provisions will likely continue to be challenged by applicants. The new EE system and the ESDC compliance regime are two areas of immigration law that could make use of both retrospective law and MIs that could fuel additional litigation.
In any event, a legal foundation is not sustainable if immigration categories become moving targets, like for the FSW applicants who could not have known for eight years (in some cases) what was going to come of their FSW application. An immigration program that becomes too nimble may result in unintended consequences. One may be a breeding ground for unscrupulous representatives to game clients. We must strive to fashion our immigration law in a manner that preserves our international reputation as a country of invitation, fairness and openness and, at the same time, promotes economic, social and cultural nation building on a solid and predictable legal foundation.