Not surprisingly, there is currently a widespread consensus in Canada that its ailing immigration system must be reformed, or even entirely replaced. Why should the system be reformed? There are several problems that can be cited. The immigration process itself takes so long due to inefficient legal procedures and a subsequent accumulated backlog of cases that the need to streamline the process is self-evident.1 The processing time for potential immigrants from different countries varies to an extent that has led to the perception that Canadian immigration law is discriminatory. Also, the current system is too easily abused by refugee claimants and professional people smugglers. Quite noticeably, the moral, ethical and economic guidelines of the third section of the Immigration Act have been wrongfully dismissed as “general idealism,”2 and ignored. These inefficiencies and abuses of the immigration system, in addition to the many inherent problems with the current system, are all indications that an overhaul of Canada’s immigration system is now quite imperative.
The current immigration and refugee determination systems are too lengthy and inefficient. According to Jeffrey Simpson, “[as a result of] the Supreme Court’s Singh decision, which requires an oral hearing upon entry into Canada for claimants, the system is too layered, time-consuming and legalistic.”3 The refugee determination process, complete with lengthy appeal procedures, is interminable. An average claimant can expect to stay in Canada for several years while their case is considered.4 The reason for this is, unequivocally, inefficiencies in the system. The Immigration and Refugee Board now has an accumulated backlog of approximately 30,000 cases, which also retards the refugee determination process immensely.5 On January 3, 1998, the Toronto Star wrote that this “is not because more applicants are pouring into the country; the number has actually dropped since the early ’90s. The reason appears to be simple inefficiency.”6 The decision-making authority of the Immigration and Refugee Board, a quasi-judicial administrative tribunal,7 is controlled by political appointees who are appointed by the party in power. Consequently, every time the government changes, there is a huge turnover in the board. Such turnovers generally subtract from the efficiency of the board, as the new mass of appointees must learn how to do their jobs every time. As a result, the Immigration and Refugee Board takes too long to render judgments and also makes inconsistent decisions.8 On Tuesday, January 6, 1998, a report was released by Immigration Minister Lucienne Robillard that recommended streamlining the refugee determination system,9 speeding up the process for determining whether an applicant qualifies, and reforming the Immigration and Refugee Board. The decision-making authority on refugee matters would fall to a group of independent civil servants, rather than a volatile, partisan group of political appointees.10 These changes would certainly address some of the most evident inefficiencies in the current immigration system, including lengthy procedures and subsequent backlogs, and political patronage within the Immigration and Refugee Board.
The processing time for potential immigrants from different countries varies to an extent that has led to the perception that Canadian immigration law is discriminatory,* despite the fact that the Immigration Act itself guarantees that it will “ensure visitors and immigrants to Canada are subject to non-discriminatory standards in accordance with the Canadian Charter of Rights and Freedoms.”11 On January 3, 1998, the Toronto Star wrote:
| A spouse in Bangkok seeking to join his or her partner in Canada faces an average wait of approximately 21 months. In Paris, it is just four months. A skilled worker seeking to immigrate from London normally has to wait nine months. A similar individual in Moscow faces a 19-month delay. This has led to the perception that some immigrants are more welcome than others.12 |
This view, that some applicants are more welcome than others, probably represents that of many immigrants in Canada. For instance, according to Dr. Alan Li of the Chinese Canadian National Council, “this is discrimination. The government is selectively prohibiting certain groups from coming to Canada.”13 Although the government of Canada does not prohibit the immigration of any group based on race or nationality, Dr. Li’s statement does have some merit. The immigration of people from certain parts of the world to Canada appears to be discouraged, if not prohibited. This is able to occur primarily because the Immigration Act does not contain any legal time limits on each stage of the immigration process. To deal not only with this problem but with the general lengthiness of the immigration and refugee determination procedures, the imposition of time limits was one of the 172 recommendations in the report released by Ms. Robillard. It can also be argued that certain types of immigrants get into the country more easily than others. The average waiting time for a family class immigrant is 20 months, but for a business class immigrant it is only 17 months.14 According to the Toronto Star, “in New Delhi ... it takes 22 months to process a family class immigrant and just 13 months to process a skilled worker. This frustrates relatives in Canada, who are trying to reunite their families.”15 Interestingly, in the third section of the Immigration Act, Canada declares that the law “shall be designed and administered to facilitate the reunion of Canadian citizens and landed immigrants with their close relatives abroad.”16 These dissimilarities in waiting time for different types of immigrants were made possible on January 31, 1993, with the passing of Bill C-86, an amendment to the Immigration Act. The law restructured the system to create different streams of immigrants,17 including family class immigrants, independents, business immigrants, and refugees. Intriguingly, the Immigration Minister stated in 1993 that there would be no priority given to one stream over another and that each stream would be independent of the others.18 Skeptically, Gary L. Segal, a founder and past chairman of the Immigration Section of the Canadian Bar Association, wrote: “It is my opinion that there will be backlogs developing within the [individual] streams similar to those that have traditionally existed within the U.S. immigration system.”19 Mr. Segal was right. Consequently, discrimination, or at the very least, perceived discrimination, based on both nationality and status, is a very serious problem with the Canadian immigration system today.
Canada’s current immigration system is too easily abused, both by refugee claimants and professional people smugglers. Simply stated, it is too easy for the system to be illegally exploited, by lawyers and others. On January 3, 1998, the Toronto Star wrote:
| Fully 60 per cent of refugee claimants who come before Canada’s Immigration and Refugee Board seeking asylum get into the country by using fraudulent travel documents supplied by professional people smugglers. More than one in three win refugee status. Yet those same people would have been denied entry to Canada if their false papers had been discovered. This double standard breeds disrespect for the law.20 |
This scenario, in which the Canadian immigration system is abused, is becoming very common. The destruction of documents before or at the Canadian border and other abuses of the Canadian immigration system, including the business of smuggling people from other parts of the world into Canada is also widespread.21 Because no effective legal mechanism exists in Canada to deport claimants who are denied refugee status, many remain in Canada. More than half of those rejected between 1993 and 1997 are still in Canada, and some have criminal records.22 Amazingly, only 22 per cent of these rejected refugee claimants are known to have left the country, while the status of the remaining 28 per cent is unknown. This despicable record encourages people to exploit Canada’s immigration system.23 As said by Robert Fife, “we have witnessed countless cases of queue jumping by newcomers and easy acceptance of illegal immigrants and bogus refugees, including suspected war criminals. Canada’s immigration system has been skewered in favour of those who should not be entitled to citizenship. Border controls are a joke. The record of deporting rejected refugee claimants is laughable.”24 The report released by Immigration Minister Lucienne Robillard suggests that in the future, immigration officials should ensure that claimants that do not qualify for refugee status are quickly removed from Canada. However, abuses of the immigration system are not limited to the exploitation of weaknesses in Canada’s ability to hastily deport claimants who are denied refugee status or the use of false documents to smuggle people into the country illegally. Omnipotent lawyers and immigration consultants have a reputation of exploiting the system as well. The report comments at one point that “litigation costs alone for refugee-determination in Canada could relieve considerably more human suffering if spent abroad on those most in need.”25 In brief, the abuses of the Canadian immigration system by refugee claimants who are denied refugee status, people smugglers and lawyers serve as reassurances that a reform of Canada’s immigration system is essential.
The most fundamental problem with the current Immigration Act is that the moral, ethical and economic guidelines of the third section of the Act have been wrongfully dismissed as “general idealism,”26 and ignored. Virtually every declaration of the third section of the Act is violated by the immigration system in some way. Interestingly, no individual or group has yet taken the government to court in an attempt to have a judge rule that the Canadian government is not following the principles outlined in the third section of the Act.27 According to Gary L. Segal, “it is not likely that such an attempt would succeed in our courts, because the general idealism of section three must give way to the specific law as outlined in the 123 other sections of the Immigration Act, the many interpreting regulations passed, and the policies established to carry out and explain the law.”28 Section 3 (b) of the Immigration Act states that the Act “shall be designed and administered to enrich Canada’s cultural and social fabric and especially the bilingual nature of Canada,”29 but a recent preliminary data release reveals that only 2.6 per cent of immigrants are bilingual.30 In fact, 45 per cent of immigrants speak neither English nor French.31 The report released by Ms. Robillard suggests that skilled workers, investors and entrepreneurs seeking to emigrate to Canada should be obliged to undergo a standardized test in order to prove that they are proficient in either English or French. Section 3 (d) states that the law “shall be designed and administered to cooperate with other levels of government (especially the provinces) with respect to the settlement and admission of immigrants,”32 but there is currently no real discussion regarding immigration between the federal government and any of the provincial governments, with the exception of the government of Quebec.33 The report released recently states that since immigration is a shared jurisdiction between Ottawa and the provinces, a new federal-provincial council should be established, but it does not yet exist.34 Section 3 (f) deals with ensuring that “immigrants to Canada are subject to non-discriminatory standards in accordance with the Canadian Charter of Rights and Freedoms,”35 but the facts indicate that the Canadian immigration system is quite discriminatory, especially after the passage of Bill C-86. Section 3 (h) states that one of the goals of the Act is to “foster a strong economic Canada,”36 but this does not always appear to be one of the priorities of the system. For example, when refugee claimants stay in Canada for several years waiting for their case to be considered, taxpayers pay the price. It costs Ontario alone $100 million annually to provide social assistance to refugee claimants.37 Immigrants who have trouble adjusting to Canadian society may have to receive social assistance for extended periods of time, an additional cost for Canadian taxpayers, and general hindrance to the fostering of a strong economic Canada. In the future, either the third section of the Immigration Act should be amended, or the other 123 sections should be amended, so that the moral, ethical and economic guidelines of the Act, whatever they may be, are not so constantly and so blatantly violated by the immigration system.
Canada’s current immigration and refugee determination processes are not only ridiculously lengthy, costly and inefficient, but also discriminatory, regulated by an Act that is self-contradictory, and too easily illegally exploited. Considering all of these problems, the need to reform the system is clear. The status quo is not acceptable. The immigration process itself takes so long due to inefficiencies in the system and a huge backlog of cases for the Immigration and Refugee Board that the need to streamline the process is conspicuous. Dissimilarities in the amount of time that it takes to process potential immigrants of different types have led to the unacceptable perception that Canadian immigration law is discriminatory. The fact that the system is easily abused by professional people smugglers and refugee claimants itself is an adequate justification for a reform of the system. Unquestionably, though, the most serious, fundamental problem with the immigration system is the general disregard for the moral, ethical and economic guidelines of the third section of the Immigration Act, which has led to the sad state of the Canadian immigration system today. The 172 recommendations of Lucienne Robillard’s report offer some hope for the system in the future, but the federal government must take the suggestions and overhaul the system. Ms. Robillard has already indicated that new legislation could be ready by the end of this year.38 One thing is clear: Never has the need for an overhaul of Canada’s immigration system been more obvious.
*It should be noted that although discrimination in general is discouraged, there is no right to immigrate to Canada. Canada is even entitled to exclude certain immigrants entirely, and so is equally entitled to admit them only after the payment of a tax or fee, or the imposition of rules or restrictions. The real argument in this case is over whether discriminatory standards should be used in Canada's immigration system, and especially over whether this should be done despite the fact that it is prohibited in section three of the Immigration Act, 1976.
TRI: A Treatise on Canada's Immigration System / smithda@echo-on.net / Last Revised January 1998
1Jeffrey Simpson, “Solutions exist to overhaul the cumbersome refugee process,” Globe and Mail [Toronto], 7 January 1998, A6.
2Gary L. Segal, Immigrating to Canada 10th ed. (Canada: International Self-Counsel Press Ltd., 1994) 6.
3Simpson, A6.
4“Immigration system needs fine-tuning,” editorial, Toronto Star [Toronto], 3 January 1998, E2.
5Simpson, A6.
6“Immigration system needs fine-tuning,” E2.
7Canada, Department of Citizenship and Immigration, You asked about... immigration and citizenship (Ottawa: Dept. of Citizenship and Immigration, 1997) 11.
8Erin Anderssen and Scott Feschuk, “Overhaul of immigration system recommended,” Globe and Mail [Toronto], 7 January 1998, A5.
9Although it is widely believed that the immigration process must be streamlined, some immigration groups fear that any effort to speed up the refugee determination process would hinder the ability of refugees to find a lawyer and make their case. However, finding a lawyer should not take several years. The tight time limits on each stage of the process that are proposed in the report are generally quite reasonable.
10Anderssen, A5.
11Segal, 5.
12”Immigration system needs fine-tuning,” E2.
13Tom Godfrey, “Chinese: Canada is biased,” Toronto Sun (9 January 1998): n. pag., online, Internet, 10 Jan. 1998.
14“Immigration system needs fine-tuning,” E2.
15Ibid.
16Segal, 5.
17Canada, Department of Citizenship and Immigration, Canada’s Immigration Law, (Ottawa: Dept. of Citizenship and Immigration, 1996) 6.
18Segal, 7.
19Ibid.
20“Immigration system needs fine-tuning,” E2.
21Simpson, A6.
22“Immigration system needs fine-tuning,” E2.
23Ibid.
24Robert Fife, “Immigration report will be ignored,” Edmonton Sun (9 January 1998): n. pag., online, Internet, 10 Jan. 1998.
25Simpson, A6.
26Segal, 5.
27Ibid., 6.
28Ibid.
29Ibid., 5.
30Canada, Department of Citizenship and Immigration, Facts and Figures (Ottawa: Dept. of Citizenship and Immigration, 1996) 9.
31Ibid.
32Segal, 5.
33Simpson, A6.
34”Proposed overhaul would toughen immigration policy,” CNews (6 January 1998): n. pag., online, Internet, 7 Jan. 1998.
35Segal, 5.
36Ibid.
37“Immigration system needs fine-tuning,” E2.
38Anderssen, A5.
Bibliography
Anderssen, Erin and Scott Feschuk. “Overhaul of immigration system recommended.” Globe and Mail [Toronto], 7 January 1998, A5.
Canada. Department of Citizenship and Immigration. Canada’s Immigration Law. Ottawa: Dept. of Citizenship and Immigration, 1996.
Canada. Department of Citizenship and Immigration. Facts and Figures. Ottawa: Dept. of Citizenship and Immigration, 1996.
Canada. Department of Citizenship and Immigration. You asked about... immigration and citizenship. Ottawa: Dept. of Citizenship and Immigration, 1997.
Fife, Robert. “Immigration report will be ignored.” Edmonton Sun (9 January 1998): n. pag. Online. Internet. 10 Jan. 1998.
Godfrey, Tom. “Chinese: Canada is biased.” Toronto Sun (9 January 1998): n. pag. Online. Internet. 10 Jan. 1998.
“Immigration system needs fine-tuning.” Editorial. Toronto Star [Toronto], 3 January 1998, E2.
“Proposed overhaul would toughen immigration policy.” CNews (6 January 1998): n. pag. Online. Internet. 7 Jan. 1998. Available: http://www.canoe.ca/TopStories/jan6_immi.html.
Segal, Gary L. Immigrating to Canada. 10th ed. Canada: International Self-Counsel Press Ltd., 1994.
Simpson, Jeffrey. “Solutions exist to overhaul the cumbersome refugee process.” Globe and Mail [Toronto], 7 January 1998, A6.