Canada’s minister of Immigration, Refugees and Citizenship (IRCC) needs more oversight than Parliament alone can provide.
I am joining the calls for an arms-length watchdog position to be created that monitors IRCC and reports annually to Parliament. The purpose of such oversight is to further scrutinize how IRCC is functioning and meeting its stated program delivery and budget goals. Canadians and those who apply to immigrate to Canada deserve more transparency than the minister and IRCC are offering.
Proposed Immigration and Refugee Protection Act (IRPA) amendments will permit the minister to further specify and target immigration applicants under various economic classes. The applicants, mainly skilled and economic immigrants, currently apply through an online portal to enter an express entry selection pool. Ministerial instructions from the minister then instruct who gets selected.
This “pool” approach replaced the “stand in line and wait” approach, since IRPA was enacted in June 2002.
Pre-2002, the minister had to process them, no matter how long it took. The post-2002 pool approach lets the minister control inventories by choosing from those who express interest. It is only after they are chosen that they become applicants.
For the pool approach to work, the minister was granted special “ministerial instructions” powers, which permitted the minister to avoid Parliamentary approval and set selection criteria. The oversight mechanism envisioned was that the minister would report to Parliament annually, after the fact.
The ministerial instruction process was touted as being timely, nimble, targeted and transparent. If the 2022 proposed changes are passed, the minister could further micro-target immigrant selection by occupation, skill level, experience, source country and proposed Canadian city of settlement.
Alarm bells began to ring loudly as the Senate Standing Committee on Social Affairs, Science and Technology began hearings on the proposed changes to the minister’s powers in early May 2022. Did the minister have too much power to issue selection instructions? What were the oversight mechanisms and were more required?
My view is that the minister needs more oversight, but I am not alone in this view. In August 2012, the Canadian Bar Association (CBA) passed Resolution 12-06-A, which notes that, while ministerial instructions can increase the speed with which changes to Canada’s immigration system can be implemented, they “also decrease the system’s predictability and transparency.”
The resolution stressed that the former approach of regulatory amendment by Parliament struck the “appropriate balance between flexibility and predictability.” In February 2013, the CBA passed Resolution 13-04-M urging the federal government to not use omnibus legislation to “enact substantive legislation.”
In November 2013, the CBA wrote to the Senate and again noted that the ministerial instruction process thwarted the “certainty of selection” on which “people plan their lives.” Before the minister was to be granted any more powers, the CBA sought public, meaningful and substantive consultations.
IRCC views reporting to Parliament, after ministerial instructions have already been implemented, as a check and balance on ministerial power. Clearly this is not the case. After-the-fact reporting cannot replace going to Parliament and seeking permission before substantial new selection criteria are implemented.
Most Canadians now accept that bringing more immigrants to Canada is a fundamental part of Canada’s economic and social policy. We need to make sure that the selection processes are not left to ministerial fiat, but rather, are subject to sufficient oversight not only by Parliament but also by an independent scrutineer who reports to Parliament annually. •
Zool Suleman is a Canadian immigration lawyer.
