The Lawyers Weekly - October 22, 2010

Immigration minister oversteps his authority

Mandatory language testing
for immigrants comes under fire

CATHERINE MCATEER

A seemingly innocuous administrative instruction issued earlier this year by Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism (the minister) has created quite a stir in the legal community. The instruction, which mandates third party language tests for all permanent residence applicants in two categories (Federal Skilled Worker and Canadian Experience) is certainly inconvenient for applicants who previously were not required to undergo a test. However, the more interesting question for immigration lawyers and scholars is whether the act is legal.

The minister’s action attracted media attention this summer as high profile permanent residence applicants such as Harvard educated lawyers and American and British citizens holding PhDs in English Literature complained about the time, inconvenience and expense of taking the test. Immigration language tests are required in other immigration systems around the world; however countries such as the United Kingdom and Australia provide for exemptions in accordance with clearly established criteria (such as citizenship from designated countries or a degree from an accredited post secondary institution).

The instruction was also highly criticized by immigration lawyers who argue the action is contrary to the rule of law, sidesteps the appropriate democratic process and is ultra vires the minister’s powers under the Immigration and Refugee Protection Act (IRPA).

The controversy stems from the
fact that language testing is already
legislated in the regulations which
govern permanent residence appli-
cations. According to the legislation,
applicants for permanent residence
in the Federal Skilled Worker and
Canadian Experience categories are
permitted to demonstrate language
ability by submitting either official
test results or other evidence of lan-
guage ability in writing (which could
include evidence of education in
English or French and writing sam-
ples). Typically, citizens of English or
French speaking countries or appli-
cants who had been educated in such
a country would elect to avoid the
language test and submit other evi-
dence. Citizenship and Immigration
has long been concerned that this
system leads to the potential for
fraudulent evidence of language
ability and unequal treatment of
applicants. Instead of amending the
regulations, however, the minister
elected to proceed by way of an
administrative tool called a “minis-
terial instruction.”
The power of the minister to issue
instructions regarding the way in
which applications are processed by
Citizenship and Immigration Can-
ada is relatively recent. On June 18,
2008, parliament approved changes
to IRPA, which removed the obliga-
tion to process all applications that
are received by Citizenship and
Immigration Canada. Buried in a
budget bill, the amendments gave
the minister sweeping powers to
issue instructions to visa officers
regarding which applications are eli-

ADRIAN WYLD / THE CANADIAN PRESS
Minister of Citizenship Jason Kenney’s actions were highly criticized by immigration lawyers.

gible for processing in order to “best
support the attainment of the immi-
gration goals established by the Gov-
ernment of Canada.”
Unlike regulatory changes, minis-
terial instructions under IRPA do
not need to be published in proposed
form nor is there an accompanying
Regulatory Impact Analysis State-
ment, which requires the responsible
ministry to consider and explain the
objectives of the proposed regulatory
change, the benefits and costs, and
whether other regulatory or non-
regulatory options were considered.
In fact, there is no requirement to
provide any advance notice of chan-
ges and the instructions simply
become effective on the date that
they are published. This lack of
notice also means that there is no
opportunity for public comment.
The rules can now change without
warning leaving our immigration
system unpredictable and arguably
less attractive to the most qualified
prospective immigrants.

Since the amendments were passed
in 2008, the minister has issued two
sets of ministerial instructions, which
have had dramatic consequences for
prospective applicants. The first set
were issued in November 2008 and
made sweeping changes to the Fed-
eral Skilled Worker program to
restrict the number of permanent
residence candidates who would qual-
ify. Many prospective permanent resi-
dence applicants who had not yet
submitted their applications discov-
ered that they no longer qualified
under the program. The second set of
instructions issued in June of this
year, which included the mandatory
language testing requirement, also
placed a cap on the number of Federal
Skilled Worker applications processed
in a given year for certain occupations
and further restricted the types of
applicants who would qualify.