Law Times

www.lawtimesnews.com Page 4 March 31, 2008 / Law TiMes NEWS Lawyers blindsided by planned changes to immigration system Powers will shift from Parliament to minister L awyers say they've been blindsided by plans to revamp Canada's immigra- tion system that the Conservative government rolled into its bud- get bill earlier this month. "The way to do this is to have a national debate on immigra- tion and for the government to set very strict priorities in legislation and regulations about really what kind of immigrants the economy really needs" says Sergio Karas, chair of the Ontario Bar Association's citi- zenship and immigration section and co-chair of the International Bar Association's immigration and nationality committee. The proposed changes to the Immigration and Refugee Protection Act, which was intro- duced in 2002, shifts immi- gration policy-making pow- ers to Immigration Minister Diane Finley and away from Parliament. The plans would give Finley the ability, for instance, to let certain applica- tions skip ahead in line, while turning away applicants from certain countries. The government says the changes are needed to cut the backlog of immigration applications and bring to the front of the line those with needed job skills. Citizenship and Immigration Canada says skilled workers now wait as long as six years before arriv- ing in Canada. In Australia and New Zealand, which the department considers "key competitors for global talent," the wait is six to 12 months. "The legislation is intend- ed to provide greater flex- ibility in addressing a range of labour market needs," says a release on the Citizenship and Immigration Canada web site. "It will not apply to refugees and does not affect our objectives related to family reunification." Because the amendments are within the budget bill, opposition parties would have to be willing to go to the polls in an election after voting against it in a confi- dence motion. The provisions, if passed, would apply to applications received from Feb. 27, 2008. Immigration lawyer Lorne Waldman says the proposed changes would mark a backward step in policy. "The points system was an effort to introduce some objective, non-discriminatory criteria that would be used to determine who got into Canada and who didn't," he says. "It's been the hallmark of our immigration policy." Waldman says that, under the new set of rules, "The objective criteria will continue to exist, but the minister at any time can say, 'We have too many skilled-worker applica- tions. Return all the skilled- worker applications; we're not going to process any of them.' So, notwithstanding the fact that I meet the criteria, I've put in my money, I've waited my turn, I could be turned away, because the minister will have the power to issue an instruction that will override the regulations in the act." This will give rise to "a concentration in the hands of the minister of all of the power over who gets into Canada and who doesn't . . . What this really is, is a power-grab," says Waldman. "This is part of a move towards legisla- tive changes that will authorize instructions to be made in all sorts of areas, which will reduce political accountability." Finley has disagreed with the suggestion that the measures are simply a power-grab. "Nothing could be further from the truth," she told CTV's Question Period. "We have to make it easier to get more people here faster. We have a backlog right now that the previous gov- ernment ballooned from 50,000 to 800,000. It has since grown to 900,000." Karas says changes are need- ed to Canada's "moribund" immigration system. But he says the Conservative government is going about it the wrong way, and the measures shouldn't have been buried in the budget bill. Canada currently is attract- ing immigrants in the wrong occupations, says Karas. "We don't need any PhDs in phi- losophy. We need petroleum engineers," he says. In terms of the new rules, Karas says lawyers should press the government to make sure any applications already filed are grandfathered into the sys- tem, for information on how these changes will be imple- mented, and for clarity on who will decide which applicants are accepted based on their skills. Lawyer Janet Bomza says immigration lawyers have been put in a compromising position by the government's move. She says they are filing new applications on a daily basis without any idea of what criteria will apply. Lawyers should make it clear to their clients that applica- tions could be subject to a new set of rules, and it's unclear whether they will make more or less likely that their appli- cations will be accepted, says Bomza. It's probably prudent to include that stipulation in retainers, she says. Waldman says the new reg- ulations will make it harder for lawyers looking to give clients certainty. "It'll be difficult, because cli- ents come in wanting solutions, and we can offer them a solution but we're always going to have to make the caveat, 'Well, you can apply in this way but have to understand that, at any time, the minister can issue an instruction that will close the door.'" But Waldman says less clarity and certainty usually means people will turn more often to lawyers for the best chance of having their appli- cation succeed. "I don't think that it will mean that we'll have less work. It will mean that the nature of our advice will, by necessity, have to change." Karas also believes the new changes will keep immigra- tion lawyers as busy, or busier, than ever. "It's difficult to believe that people will be able to navigate the system without the assis- tance of an immigration lawyer who is very well versed in the subject," he says. Karas says the current system is a "victim of its own success," as the system for skilled work- ers has become so user-friendly that many applicants file on their own. But while some categories of immigrants will provide more work for lawyers, other areas will dwindle, such as those of parents and grandparents hop- ing to reunite with their fami- lies, says Karas. "Economically, it's the least viable. Bringing your parents and grandparents adds noth- ing to the economy, except create demand for health care, social services." Overall, says Karas, law- yers should be prepared for a seismic shift in the country's immigration system. "Immigration lawyers need to come to the realization that, in terms of changes to the sys- tem and replacing it with some- thing more viable, the train has left the station, so to speak. In the future, we need to be prepared for a system that is going to be much more geared towards labour-market needs and less geared towards family reunification. The government now is planting the seeds for that to occur." Printing & Graphic Services We are an FSC Certified Printer, making a commitment to responsible forestry. With FSC papers you know; the recycled/post-consumer waste content is varified, and all other fibre comes from forest-friendly sources that meet the highest international standards. These standards are why FSC is the only certification system supported by environmental organizations like the World Wildlife Fund of Canada, Sierra Club of Canada and Greenpeace. Responsible Forest Management Cert no. 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For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca LT0331 Ziegel J.•Canadian Business Law Journal 6.0 3/26/08 10:34 AM Page 1 BY ROBERT TODD Law Times Lorne Waldman says the proposed changes would mark a backward step in policy. LT

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