Backgrounder - Legislative amendments to the Immigration and Refugee Protection Act

Canada needs a more responsive and fair immigration system to address current challenges and emerging needs.  Key amongst these is the need to address the immigration backlog and reduce wait times so that families are reunited faster and skilled workers arrive sooner.

There are approximately 925,000 people waiting in line—almost enough to meet our immigration targets for the next four years.

And yet hundreds of thousands more people continue to apply every year. Under the old law, all applications had to be evaluated and processed to a final decision. The backlog continued to build and threatened to reach 1.5 million by 2012 if we did nothing. This would have meant a wait time of 10 years for applicants.

Until the recent amendments to the Immigration and Refugee Protection Act (IRPA), applications in the largest backlog—federal skilled workers—used to be processed in the order they were received, regardless of whether the applicants’ skills or professions would enable them to find a job in Canada.

We must have an immigration system that effectively balances Canada’s own needs with its popularity as a destination. That is why the Government of Canada proposed changes to IRPA. On June 18, 2008, these changes became law.

The changes mean that Citizenship and Immigration Canada (CIC) will have greater flexibility in processing certain categories of applications submitted on or after February 27, 2008—the date the new law takes effect. While all applications will continue to be accepted, the ministerial instructions will identify which categories will be prioritized for processing.

In the first instance of issuing ministerial instructions, the Government of Canada intends to apply this new flexibility to the federal skilled worker (FSW) category, where the largest backlog and longest wait times exist. At the same time, all applications submitted before February 27 will continue to be processed to a final decision under the rules in place prior to the amendments.

Reducing the backlog

The amendments address elements within the existing legislative framework that contributed to the growth of the backlog. In particular, they amend IRPA in order to:

1. eliminate the obligation to process all properly submitted applications to a decision (section 11); and,
2. confer a clear authority for the Minister of Citizenship and Immigration to establish priorities through ministerial instructions that limit the number of applications that would be processed (section 87.3).

Simply put, far more people apply than can be processed and admitted and integrated. As a result, a backlog has been created and wait times have increased. By removing the obligation to process all applications and requests CIC receives, combined with the ability to return applications unprocessed, the amendments begin to reduce the backlog by preventing it from growing further.  Once stabilized, the backlog can start to be reduced over time through a combination of new funding and administrative measures that increase processing capacity and efficiency.

Budget 2008 also provided over $109 million over the next five years to improve and modernize the immigration system. As a start, some missions will receive additional resources to help improve wait times for permanent applications, international students and temporary foreign workers. Ongoing funding will help build the capacity to meet future levels and increasing demand, and will introduce administrative improvements such as centralized processing and data entry.

Increasing labour market responsiveness

With a growing backlog, particularly in the FSW category, individuals with the skills and experience that employers want wait years to be admitted.

The new authority allows the Minister to issue instructions that will ensure workers with the skills in demand are processed and arrive in Canada faster. By prioritizing certain skills and occupations, labour market needs will be addressed more quickly.

Ensuring the integrity of humanitarian and compassionate consideration

In order to ensure that ministerial instructions are effective, subsection 25(1) was amended to provide the Minister with the discretion not to consider requests for humanitarian and compassionate (H&C) consideration made outside of Canada. The intent of this amendment is to prevent certain applicants, such as FSW applicants who do not meet the priorities stipulated in instructions (and whose applications may be returned unprocessed), from circumventing the instructions through an H&C request.