The New Immigration and Refugee Protection Act, Regulations

On Saturday December 15th 2001, the Canadian government published the proposed new Immigration and Refugee Protection Regulations in the Canada Gazette Part I. You may view these Regulations at the following URL:<http://www.canada.gc.ca/gazette/hompar1-2_e.html>, Pages 4577 to 4698 for the text of the proposed regulation and pages 4477 to 4576 for the text of the regulatory impact analysis.

The Regulations are to be implemented along with the new Immigration and Refugee
Protection Act, Bill C-11, on June 28th 2002. But some provisions of these
regulations have immediate effect. Part 5, selection of skilled workers and
business applicant, will be applicable to applicants who have not yet obtained a
selection decision. According to article 259 (part 16, transitional provisional for economic class) the
regulations are applicable to foreign nationals who submitted an application for
an immigrants visa which have not been awarded the numbers of unit of selection
required by the immigration regulations of 1978 (the old regulations). They must obtain a minimum of 75 points based under
the new regulations if they had applied before December17th, 2001. For all
applications received after 17th they must obtain a minimum of 80 points under
the new regulations.

The new regulations repeal the old regulations of 1978 (see art 261), and they
are due to come in force on the day the Act (the new immigration law, C-11)
comes into force, 28th June 2002.

The selection system for Skilled Workers in the new Regulations will be
different from the present criteria. Some individuals will benefit, while
others, mostly from non-Anglophone or francophone countries, will qualify with
difficulties due to the way the points for language are
calculated.

Most importantly, many occupations that were previously considered ineligible
under the Skilled Worker program are now considered eligible; previously closed
occupations are now effectively open.

Under these new regulations the minister could designate an occupation as a
restricted occupation. It is anticipated that a negative occupation list would
not contain any occupation during the start-up phase of the new skilled worker
class. The purpose of this list is to permit the minister to protect the
Canadian labour market should an overly large number of immigrants with narrow
occupational skills apply for immigration under the skilled worker class.

The old and the new regulations specify that skilled workers applicants must
have sufficient funds to support themselves during the period of their initial
establishment. A family unit of three (3) persons used to need C$ 12,939 but
under the new regulations they need to demonstrate that they have available
funds of at least C$ 27,805.

The new Immigration law and regulations are also introducing a new residency
card (permanent resident card), article 51, for the permanent residents. For the
first time, Canada is issuing a renewable, secure, proof-of-status document
valid for five years. This card will facilitate the return and entry of
permanent residents to Canada by providing a presumption of their status as
permanent residents in Canada. All new residents under the new Act will no
longer get the record of landing (IMM1000) and will get the new card as a
document indicating their status. Individuals who are already permanent
residents must apply for this card. These cards are issued and delivered in or
outside Canada. When the card is due for renewal, individuals have to show proof
of residency for 2 years out of 5 years, upon which the card can be renewed
again for another 5 years.

Finally, all applications for permanent resident visa MUST be made at the
immigration office outside Canada that serves the applicant’s place of habitual
residence.

Over 70 percent of new jobs in Canada require some form of post-secondary
education, and Human resources and Development Canada (HRDC) predicts that fewer
than 6 percent of jobs in the next five years will be available to those with
less than a high school education. This explains why the new regulations gives
more weight to the applicants (principal applicant and the accompanying spouse)
level of education and the principal applicant’s language abilities.

The number of applications in the system awaiting assessment has increased every
year. Currently, the inventory of skilled workers cases totals over 170,000
cases involving more than 400,000 people. At present, 50 percent more
applications are being received than are needed to meet program targets. If
potential skilled workers find they must wait several years to be processed they
will look elsewhere to immigrate and Canada will lose their skills.

The new regulations will have a negative impact on the applicants who are
currently awaiting assessment. On its own, the act of increasing the
qualifications expected of the skilled workers applicants under the new system
would result in a decrease in the quantity of individuals who could receive
permanent resident status. Some applicants who might
qualify under the present system will not succeed under the new system. However,
many qualified individuals who have not been able to apply in the past because
of the restricted occupations, such as managers or assistant managers in any
field, will now be able to submit an application.

© Sam Bayat, B.Sc., LLB.
All Rights Reserved.