April 15, 2015

Express Entry System: Forms Over Substance? If Not An Immigration Decision – What Is It?

Posted by Mario Bellissimo - Bellissimo Law Group PC

Express Entry [EE] will soon be five months old.  There is still so much to learn and understand, and in particular, what it is.  On every page of the Express Entry profile is a note marked “Important”.  It reads:

This information is for reference only and no immigration decision will be made based on your answers.  If you choose to apply, your application will be considered by an immigration officer in accordance with the Immigration and Refugee Protection Act, without regard to any outcome attain through this questionnaire.

What?  Is this really form over substance? Nothing seriously derives from filling out the forms?  How can this be true when you cannot get into the door without crossing the EE threshold for a number of economic programs?  If you rely on the excerpted portion above, an applicant could reasonably understand this just a questionnaire with the serious stuff to follow later. Nowhere on the form/screens does it list any consequence to the information provided until . . .

You are extended an invitation to apply and then part of your welcome mention includes:

WARNING: If we invite you to apply for permanent residence, you will need to show proof of the information you gave us in your Express Entry profile. Your application for permanent residence will be refused if the information in your Express Entry profile is not true or cannot be verified. Untrue claims may result in you being barred from Canada for five years.

If we find that you misrepresented yourself (gave us false information or left out important details), we will refuse your application. You could also: 

      • be barred from entering Canada for at least five years,
      • have a permanent record of fraud with CIC, or
      • be charged with a crime.

Yikes how can the two competing notices be reconciled?

Leaving aside many of the technical limitations of the EE profile which includes no option for selecting an immigration category of choice, inability to list hybrid positions, and asking for a lifetime of employment to list just a few; there is no option to explain or provide details for information beyond the contemplation of the Express Entry system at this stage.  When the penalty is minimum five year bars, a potential fraud finding or criminal charges, applicants should not only be able to provide detail for their respective answers but are also entitled to clear instructions as to the consequences of the entries.

In New Zealand’s thirty six screen/page application, certain questions are not to be answered by yes/no. In particular, under Section E Skilled Employment in New Zealand, applicants are asked to give a detailed reason in support of claims for point allocations (E1-E9).  I wrote last year I was doubtful we would see a question like this on Canada’s EE profile because it would infuse an element of discretion into the selection process.  It appears no such discretion is permitted for applicants but a wide discretion could be afforded officers in founding serious accusations for just filling out a questionnaire for reference purposes only.  So applicants are still left wondering what exactly is EE?

For more information on Express Entry, please click here.