CIMM Committee Report
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Government Response to the Building a Nation: the Regulations June 2002 TABLE OF CONTENTS
June 2002 Mr. Joe Fontana Dear Mr. Fontana: Pursuant to Standing Order 109 of the House of Commons, I am pleased to respond on behalf of the Government to your Committee's report, Building a Nation: The Regulations under the Immigration and Refugee Protection Act, tabled in the House of Commons on March 21, 2002. I appreciate the considerable work that Committee members put into this report. For the first time, the Committee undertook a comprehensive review of draft immigration regulations, in keeping with the intent of the new Act. Operating in a tight time frame, it held broad public hearings and contributed greatly to the process of designing effective regulatory procedures to give effect to the framework legislation passed by Parliament last fall. The Committee's report will help us move forward quickly in implementing these reforms, which will modernize Canada's immigration and refugee protection system for the 21st century. The Government is supportive of many of the report's recommendations. The final regulations will reflect many of the Committee's concerns and take submissions that Citizenship and Immigration Canada received from provinces and territories and individual Canadians into account. I would like to thank you and your colleagues for your very valuable work and look forward to a continuing productive relationship in future citizenship and immigration initiatives. Sincerely, The Honourable Denis Coderre THE NEW SELECTION SYSTEM Recommendation 1 All skilled worker applications received before December 31, 2001 should be processed under the existing selection criteria until March 31, 2003. Response: The Government shares the concerns expressed by the Committee regarding the fair and equitable treatment of skilled worker applicants. The Government is changing the retroactivity dates to reflect the Committee's recommendation but acknowledges that not all skilled worker applications received before December 31, 2001 will be processed by March 31, 2003. The Government believes its changes will address major concerns and further enhance the fairness and treatment of skilled worker applicants currently in the system. The Government is making the following changes:
Recommendation 2 Citizenship and Immigration Canada must make a corporate commitment to process its skilled worker inventory on a priority basis. Response: The Government is committed to processing all of its cases, including the skilled worker inventory, as quickly as possible in the context of its policy objectives, delivery capacity and projected immigration levels. Recommendation 3 Staff at each post with a significant skilled worker inventory should reassess their general policies regarding personal interviews -- when are they essential and when can they be waived. Response: The selection program currently operates in this way; in many instances the need for a personal interview is waived. In addition, the new selection grid is more objective because of the elimination of the General Occupations List and the replacement of subjective personal suitability factors with objective adaptability factors. These changes make the entire selection process easier and quicker. In addition, under the new system, applicants will be required to submit proof of language ability; CIC officers will not conduct language assessment tests. Of course, at all times, careful consideration of applications is required to guard against possible fraud and ensure security is not compromised. Recommendation 4 Special teams ("SWAT" teams) should be used to clear backlogs at missions with large inventories to ensure that they are processed expeditiously and that applicants are not disadvantaged by their place of application. Response: The Government shares the Committee's concern about the build up of large inventories. The effective use of "SWAT" teams is contingent upon available resources, projected annual levels of immigration and the capacity to support increased volumes of immigrants that result from these augmented processing efforts. The Government is experimenting with different approaches that will lead to improved client service. One approach has been the use of "SWAT" teams to clear inventories; other pilot approaches are underway such as centralized processing, that would speed up decision making and processing of applications. The Government will continue to monitor these pilot projects for their effectiveness and experiment with new approaches to reduce inventories and improve client service. Recommendation 5 In the interests of fairness and equity, the government should increase the resources dedicated to processing the applications of skilled workers in order to minimize the impact of the revised selection criteria on the skilled worker inventory. Response: The Government shares the Committee's concern about the need for timely processing of skilled worker applications. The Government is committed to ensuring fairness and equity in its immigration program. Within its limited resources, CIC officers must balance other program needs such as the growing demand for family reunification, the need to respond to humanitarian concerns, and the growth in non-immigrant applications. Recommendation 6 The requirement that an applicant complete a specified total number of years of study when assessing educational credentials should be eliminated. Response: The Government has reduced the number of years of education required with a degree or certificate. The Government requires a specific number of years of education in order to ensure a minimum standard is met for each credential. This provision in the regulations will also protect the integrity of the immigration program by guarding against fraud by schools that could issue diplomas and certificates without the requirement for a specific period of study. Recommendation 7 Fifteen points should be awarded for diplomas, trade certificates and apprenticeships that require one or two years of full-time studies, and an additional five points should be awarded to applicants in this group who have a high school diploma. Response: The Government agrees with the need to allocate more points for those with diplomas, trade certificates and apprenticeships that require one or two years of full-time studies. Under the new grid 12 points will be allocated for a trade certificate and 12 years of education; 15 points for those with a one-year trade certificate and 13 years of education; and 20 points for those with a two-year trade certificate and 14 years of education. The Government believes that this revised point system better recognizes the skilled trades, maintains the emphasis on years of education and ensures the integrity of the immigration selection system. Recommendation 8 An applicant with two or more undergraduate degrees should be awarded 25 points under the education criterion. Response: The Government agrees with the need to better recognize applicants with two or more undergraduate degrees. Under the new regulations a maximum of 22 points will be allocated to applicants with two or more undergraduate degrees. Recommendation 9 "Full-time" in relation to studies or training should be defined as at least 12 hours of instruction per week, and should include co-op programs. Response: The Government agrees that co-op programs should be counted as full-time studies and this change will be reflected in the new regulations. Full-time studies or training will continue to be defined as 15 hours, during the academic year. In the Government's opinion, the Committee's recommendation of 12 hours would be considered part-time. Recommendation 10 Four levels of language ability should be included in the point grid: high proficiency, moderate proficiency, basic proficiency and no ability. Response: The Government agrees with the recommendation and has added an additional assessment level for language ability. The new selection grid will allot a small number of points for basic proficiency in either official language. The Government recognizes the importance of language ability to one's successful establishment in Canada. Recommendation 11 Twelve points should be awarded for moderate proficiency and four points should be awarded for basic proficiency in the applicant's first official language. Response: A maximum of two points in each of the four skills (reading, writing, speaking, and understanding) will be allocated under the selection grid for moderate proficiency and a maximum of two points for basic proficiency in either official language. Research clearly shows that language ability is a key determinant of successful integration into the Canadian labour market, as measured by employment earnings. Recommendation 12 The points awarded for high proficiency in the applicant's second official language should be increased to eight, the points awarded for moderate proficiency should be increased to six and four points should be awarded for a basic proficiency in the second official language. The maximum total points available for language skills should remain at 20 with additional points being available under the adaptability criterion when an applicant has a high proficiency in both official languages. Response: The Government is making changes to the selection grid to recognize proficiency in a second language. A maximum of 2 points will be allocated for high or moderate proficiency in each skill in a second language. A fourth assessment level, basic proficiency, is being added to the language factor (in addition to high proficiency, moderate proficiency, and no proficiency). Up to a maximum of two points will be awarded for basic proficiency in either official language. Regarding the language factor and maximum number of points, the Government believes that language issues should stay under one selection factor. The maximum number of points for language has been increased to 24. Recommendation 13 Ten points should be awarded for applicants between 21 and 50 years of age, with a decrease of two points for each year younger or older. Response: The Government is changing the upper age range of the age factor; applicants will receive ten points up until they reach the age of 50. Beginning at age 50, two points will be deducted for each year beyond that age. The Government believes this will assist older skilled worker applicants to qualify under the selection criteria. Recommendation 14 Adaptability points should not be awarded for an informal job offer in Canada. Response: The Government agrees with the Committee's recommendation and is removing the informal job offer from the selection grid. Recommendation 15 The maximum points available for adaptability should be increased from 10 to 15. Response: Research has shown that education, language ability, and previous work experience, are of greatest importance to successful establishment in Canada. With a total of 100 points, the adaptability factor will remain at 10 points. Recommendation 16 Five points should be awarded under adaptability for those who do not have arranged employment in Canada but who would otherwise meet the requirements of special sectoral agreements, such as the pilot project for software professionals. Response: The Government has decided instead to provide more opportunity for points to be allocated for arranged employment. Under the new selection grid, 10 points will be allocated to assist those applicants from within Canada who are holding a temporary work permit that is validation exempt under NAFTA, General Agreement on Trade in Services (GATS), Canada-Chile Free Trade Agreement (CCFTA). The existing provision to assist those applicants in Canada with a temporary work permit that is validated by HRDC will remain with an allocation of 10 points. The Government will also award five points under the Adaptability Factor to those applicants who have received points under the Arranged Employment Factor. The Arranged Employment and Adaptability factors will remain with a maximum of 10 points each. Recommendation 17 Seven points should be awarded under adaptability for those who can satisfy an immigration officer that they intend to settle in a region of low immigration. This should be monitored for effectiveness on an ongoing basis. Response: The Government recognizes the benefit of encouraging applicants to settle in regions of low immigration. This recommendation requires further study and consultation. The Government is committed to discussing this issue with provinces and territories at its fall meeting of Ministers responsible for Immigration. Recommendation 18 Five points should be awarded under adaptability for those who have the support of a local community organization and can provide a settlement plan. Response: The Government recognizes the important role played by communities in assisting newcomers to settle and integrate into Canadian society and the labour market. The Government is concerned about the possibility for fraud and abuse that could occur under this recommended approach as well as the difficulty inherent in objectively assessing a settlement plan. Because of the potential for fraud and abuse, the Committee recommended that no points be awarded for an informal job offer in Canada. Recommendation 18 raises similar concerns about fraud and abuse. Recommendation 19 Five points should be awarded under adaptability for those who have previously visited Canada, provided they have not received points for previous study or work in Canada. Response: The Government believes that previous study or work in Canada will contribute to a person's adaptability and future success in Canada. A previous short visit to Canada is not likely to contribute to a person's successful adaptability in the country as a permanent resident. Recommendation 20 Four points should be awarded under adaptability for those who demonstrate a high proficiency in their second official language. Response: The Government recognizes the importance of second language ability and is making adjustments to reflect this fact in the language factor of the grid. It also believes that points related to language should remain together. Recommendation 21 Following the adjustment of the selection system criteria as the Committee has recommended, the pass mark should be set at 70 points. Response: The Government is sensitive to concerns raised by provinces and territories, stakeholders, and Committee members regarding the pass mark. The Government lowered the pass mark for those applicants in the transition period. After careful consideration, the final pass mark for the selection grid will be 75 points. Recommendation 22 After two years, the Department should analyze the impact of the changes to the grid and the pass mark and report its findings to Parliament. Response: The Government believes that its current reporting mechanisms to Parliament, as set out in the Act, provide sufficient information about the immigration program, including skilled workers. For example, each year the Government is required to table its Annual Immigration Plan, Report on Ministerial Permits, Report on Transportation Loans, Report on Plans and Priorities and the Departmental Performance Report. The Immigration and Refugee Protection Act specifies the elements that must be included in the annual report on the operations of the Act. This report replaces the Annual Immigration Plan. In addition, the Government publishes research studies on various aspects of the immigration program. Recommendation 23 Clause 64(1)(b) should be amended to provide that the minimum settlement funds required for skilled worker applicants and their family members should be sufficient to support them for a period of six months after they enter Canada, not one year, using the LICO figures. Response: The Government agrees with this recommendation. In addition, the Government is waiving the need to show proof of funds for all those applicants who receive 10 points under the arranged employment factor of the selection grid. Recommendation 24 Clause 65 regarding the continuing applicability of the selection criteria should be redrafted to state that the selection system and pass mark in effect at the time of an application must be used at all processing points, and to clarify which of the criteria must continue to be met at the time the visa is issued. Response: The Government appreciates the Committee's concern about clarity in the application process and endeavours to ensure that the process is transparent and clear. At the same time, the Government requires the flexibility and tools to make immediate adjustments that will increase efficiency, minimize delays, and rapidly respond to changes in the environment, including changes in labour market conditions. Recommendation 25 All applications for permanent residence in Canada should clearly indicate that to work in one's profession or trade, accreditation or certification from a licensing body may be required and that applicants should contact the appropriate agencies to determine their likelihood of obtaining such accreditation or certification. Response: The Government supports the Committee's recommendation. All applications for permanent residence will contain a statement regarding the requirement for accreditation or certification from a licensing body for some professions and trades. In addition, the Government is working to provide better information on foreign credential recognition on its website and in application kits. Recommendation 26 The federal government should provide assistance to the regulatory bodies that govern admission to skilled trades and professions in Canada to determine foreign equivalencies and to facilitate the entry of skilled worker immigrants into the labour market. Recommendation 27 The recognition of foreign credentials should be given priority when the federal and provincial governments meet to discuss immigration issues. Partnerships between the federal and provincial governments and licensing bodies should be pursued. Response (to recommendations 26-27): The Government is pleased the Committee raised this important issue and agrees with the recommendations. The Government is committed to making progress on this issue as illustrated in its 2001 Speech from the Throne and the discussion papers released in February 2002 as part of Canada's Innovation Strategy -- Knowledge Matters and Achieving Excellence. These strategies commit the Government to working in partnership with provinces and territories and key stakeholders to develop fair, transparent and consistent processes to assess and recognize foreign qualifications before and after the immigrant's arrival. The Government intends to hold discussions on the barriers to successful integration as part of its Innovation Strategy engagement activities with stakeholders, including regulatory bodies, and at the meeting of federal-provincial/territorial Ministers responsible for Immigration, planned for this fall. The issue of foreign credential recognition is also being considered in other federal-provincial/territorial venues such as the Forum of Labour Market Ministers and the Access to Professions and Trades Working Group. Recommendation 28 Undertakings for dependent children should last until the child is 19 years of age. For dependent children who are 19 and over at the time of their arrival in Canada, the undertaking should last for three years. Response: The Government is making changes to undertakings for dependent children. For dependent children of sponsors and of their spouse or partner, the sponsorship will be for 10 years or to age 25, whichever comes first if they become a permanent resident before the age of 22. For their children who become permanent residents after the age of 22, sponsorship will be required for three years. The Government believes this decision reflects a balance between the need for support for young dependent children and the need to ensure that sponsorship requirements are not excessive to discourage sponsorship of dependent children. Recommendation 29 Sponsorship of a member of the family class by a sponsor on social assistance should be permitted where there is cogent and tangible evidence that the arrival of the family member is highly likely to enable the household to be self-supporting. Response: The Government believes the discretionary relief provisions of the Act are sufficiently broad and flexible in their application to adequately address, on a case by case basis, these types of situations. Recommendation 30 Receipt of social assistance should not bar single parents from sponsoring dependent children. Response: The Government acknowledges the Committee's concern about the ability of single parents on social assistance to sponsor dependent children. It is clear from the Government's experience that there is a high risk of sponsorship default in these cases. Provinces and territories have had similar experiences and support the proposed regulation as currently drafted. Exceptional relief can be sought on humanitarian and compassionate grounds. Recommendation 31 The minimum income required to sponsor members of the family class other than spouses, common-law partners and dependent children should remain at the low income cut-off figure relevant to where the sponsor lives. Response: Census data show that 75% of immigrants live in high-density population areas (500,000 people or more). For this reason, it is more appropriate to use low income cut-off figures for high density population areas when calculating minimum income for sponsorship. This new financial precondition to sponsorship ensures that an adequate level of support is provided wherever the sponsor chooses to live. It should also be noted that Citizenship and Immigration Canada is making efforts to balance the higher income requirement by removing the requirement to include debts from the calculation of income. This will benefit would-be sponsors. Recommendation 32 Fiancé(e)s and intended common-law partners should be members of the family class. Response: The number of people who have been seeking permanent residence as fiancé(e)s has been steadily declining. Introducing a new concept of intending common-law partners that requires the assessment of the intention of couples to cohabit goes beyond the scope of normal immigration assessment and would be difficult to administer. The potential for abuse is of serious concern to Citizenship and Immigration Canada. It should be noted that those who apply as fiancé(e)s under the family class until June 28, 2002, when the new Act and regulations take effect, will be processed as fiancé(e)s. The Government acknowledges that there may be some cases that warrant exceptional relief on humanitarian and compassionate grounds and the Act already provides the tools to deal with those cases. Recommendation 33 The allowable reasons for excusing common-law partners from cohabiting should be expanded beyond "persecution" and "penal control." Proof of discrimination should be sufficient. Recommendation 34 Officers assessing applications from common-law partners should take a flexible approach when assessing the length of time the individuals have cohabited. Cohabitation should be only one factor in determining the genuineness of a common-law relationship and the definition of "common-law partner" in clause 1 should be changed accordingly. Response (to recommendations 33-34): The Government agrees with the Committee's concerns that have been raised in these recommendations. Under federal legislation, common-law partners are those who have co-habited for one year. The Government recognizes that the one-year co-habitation requirement may be difficult for some applicants to meet in an immigration context. As such, the Government is creating a new category, conjugal partners, to recognize genuine relationships in the family class that are based on criteria other than cohabitation. Recommendation 35 The definition of "common-law partner" in clause 1 should state that a partnership may be of the opposite sex or of the same sex. Response: Under Canadian law, common-law partner includes both opposite sex and same sex partnerships. For clarity, the term will have an expanded definition, as recommended by the Committee, in application kits for prospective immigrants and guidelines used by CIC officers. Recommendation 36 Canadian citizens and permanent residents abroad should be permitted to sponsor relatives if they intend to return to Canada to reside. Response: The regulations include a similar provision but it will apply only to Canadian citizens. The regulations will not apply to permanent residents abroad because unlike citizens, they do not have a clear right of return to Canada. They must meet certain requirements before being permitted to re-enter Canada. Recommendation 37 The term "issue" instead of "biological child" should be used in the definition of "dependent child" in clause 1 of the regulations. Response: The term "biological child" is the modern, legal term that is used by the Government in its family law policy and in its legislation to modernize benefits. In addition, the term biological child includes the concept of surrogacy, which is not covered under the term "issue". The Government wishes to underline that the intent of the change is not to significantly increase DNA testing. Recommendation 38 The current practice of allowing de facto family members to be landed with the rest of the family on humanitarian and compassionate grounds should continue. Response: The Government agrees with the Committee's recommendation and is continuing the practice of considering humanitarian and compassionate grounds when appropriate. Recommendation 39 Consideration should be given to extending concurrent processing of the family of a refugee selected abroad to those members of the family class in a dependent relationship with the refugee. Response: The regulations clarify current practice and provide different means for bringing the family members of a refugee together. For example, when the Government selects refugees abroad who are in a refugee camp, it has the flexibility to process all family members at once, including de facto members, provided they are together in the camp. In addition, the regulations provide for a one-year grace period for the immediate family members of a refugee to be processed should the family have been separated at the time the principal applicant was processed. Also, once the refugee becomes a permanent resident they can sponsor other family members as is the case with other classes of immigrants. The Government will not broaden the definition of family member. Recommendation 40 The Family Business Job Offer Program should be continued and should be included in the regulations. Response: The Government is discontinuing the Family Business Job Offer Program because it can no longer be sustained from a practical point of view. This program is small (some 250 applications a year) and has experienced a high level of fraud and rates of refusal. In addition, the program is highly intrusive; it forces employers to justify why the position is a position of trust and why a family member is needed to fill that position. Recommendation 41 Those granted refugee or protected person status by the IRB should be granted permanent resident status within 60 days of the receipt of their application for permanent residence, with the IRB's determination of identity considered valid for this purpose. Response: The Immigration and Refugee Board (IRB) is responsible for determining whether a person is in need of protection and whether they meet the definition of protected person. The IRB does not look at security and inadmissibility provisions, this is the role of the Citizenship and Immigration Canada (CIC). CIC must be able to make sure, after the IRB process, that the person is not otherwise inadmissible on security, criminality and other grounds. The Government is of the view that this process works well as up-front screening leads to faster processing at the other end. Recommendation 42 The Undocumented Protected Persons in Canada Class should be eliminated. Response: The Government agrees with the recommendation; this class is being eliminated, resulting in faster granting of permanent residence. In addition, new rules will be incorporated into the regulations allowing many more individuals to use alternative documentation to establish identity. Recommendation 43 The requirement of clause 136(1)(g) that a refugee overseas demonstrate an ability to become "economically established" should be changed to an ability to become "established." Response: The Government agrees with the Committee's recommendation. The word "economically" is being removed. The Government continues to use the words "successfully established" that are in the 1978 regulations which emphasize the need for protection and relax the criteria used to assess successful establishment. Recommendation 44 Clause 136(1)(g) should be clarified to indicate that the factors indicating potential for establishment should be examined collectively so that a weakness in one area would not bar admission. Response: The Government believes that clarification of the clause is not warranted. The 1978 regulations were written in a similar way and the practice has always been to apply the regulations in the way sought by the Committee. That is, the factors indicating potential for establishment are examined collectively. Recommendation 45 The Department should develop additional requirements regarding the contents of memoranda of understanding with referral agencies that will ensure procedural fairness in the referral process. Response: The Government believes that additional requirements are not necessary at this time as the Government's only Memorandum of Understanding is with the United Nations High Commissioner for Refugees. In the future, however, should the Government enter into Memoranda of Understanding with other agencies, monitoring and training on procedural issues will be provided to ensure fairness. Recommendation 46 The definition of "durable solution" should be clarified and should not include involuntary resettlement in the country of nationality or habitual residence. Response: The Government believes that clarification of the definition is not warranted. The provision is clear as written and makes no reference to involuntary resettlement; it makes reference to voluntary resettlement to one's country, which is accepted internationally as an acceptable solution. Recommendation 47 The filing deadline for Pre-Removal Risk Assessment submissions should be 30 days. Response: The Pre-Removal Risk Assessment notification described in the regulations provides for a formal notice to be sent to applicants and a 15-day application period as well as a further 15 days to make submission. The effect of these regulations is to grant 30 days in total for making submissions. In arriving at this decision, Citizenship and Immigration Canada has sought to balance the need for fairness with the need for expediency. The regulations provide proper notification and an adequate period of time for making submissions. Recommendation 48 The regulations should provide that an oral Pre-Removal Risk Assessment hearing is required when an applicant is ineligible to have a protection claim heard by the Immigration and Refugee Board because a previous claim was withdrawn or abandoned. Response: The Government is of the view that oral interviews should be the exception. The Government's objective is to balance fairness and efficiency in the immigration and refugee system. Recommendation 49 The regulations should set out additional rules by which the Pre-Removal Risk Assessment may ensure protection against refoulement. Response: The Government believes there are sufficient safeguards in the existing Pre-Removal Risk Assessment (PRRA) process to protect against refoulement. In cases other than those of serious criminals, a person whose application for protection under PRRA is allowed, is a Protected Person under section 95(2) of the Immigration and Refugee Protection Act. As such, protection from refoulement is provided by section 115 of the Act. ISSUES RELATING TO INADMISSIBILITY Recommendation 50 The definition of "excessive demand" should refer to age- and sex-related average Canadian per capita public health or social service costs. Response: This issue is complex and involves extensive discussions with provincial and territorial governments. At this time, the Government is proceeding with "excessive demand" as defined in the regulations. However, the Government acknowledges that further analysis and consultations with provincial and territorial governments are warranted. Recommendation 51 The time period for the calculation of excessive demand on health or social services should not exceed five years. Response: The concept of excessive demand is a complex issue that involves close consultation with provincial and territorial governments. The regulations as currently drafted were developed over several years in close consultation with other federal government departments and provincial and territorial governments. The Government will monitor the impact of these provisions. Recommendation 52 Clause 29 should be redrafted to clarify that when an officer is assessing whether an applicant's health condition is likely to be a danger to public health the degree of communicability of any disease the applicant has should be taken into account. Response: As currently structured, the Government believes the pre-published regulation (29)(b) sufficiently addresses the communicability of an infectious disease identified in an applicant. Medical officers are provided with guidelines that address the three infectious diseases for which routine testing is undertaken as part of the immigration medical examination (tuberculosis, syphilis and HIV). Historically, the major focus has been on tuberculosis because of its airborne mode of transmission. Health Canada is presently reviewing other infectious diseases and is expected to provide advice on additional routine testing in the future. Recommendation 53 The considerations set out in the Ribic case should be included in the regulations as the criteria to be used when determining whether a permanent resident sentenced to more than two years should be referred to an admissibility hearing. Response: The elimination of the right to appeal a removal order for persons convicted of serious crimes is designed to strengthen the Government's ability to remove serious criminals in a timely manner. The Government will institute administrative procedures to ensure that cases of permanent residents who came to Canada at a young age and are convicted of a serious crime are carefully assessed before a decision is taken to refer their case to an admissibility hearing. Recommendation 54 Applicants should be permitted to apply for a visa at any Canadian immigration mission abroad. Response: The Government supports the Auditor General's recommendation that Citizenship and Immigration Canada should take the necessary action to ensure that applications are processed in the offices that have the necessary skills to make informed and consistent decisions efficiently. In order to ensure that decisions are made where the best expertise lies, the regulations stipulate that, in future, applications for both permanent residence and temporary status will be required to be made at an office that serves the country wherein the applicant has been lawfully admitted. For permanent resident applicants, they must be residing and have lawful admission in that country for at least one year. Applicants for temporary residence, visitors, workers and students, will be required to apply at a mission serving a country where they are present and to which they have been lawfully admitted. This new requirement will not be implemented until early 2003 for new applications received at that time. Applicants for protection outside of Canada will be exempt from this requirement. Recommendation 55 Foreign nationals who are legally in Canada should be permitted to apply to a CIC office within Canada for a study permit. Response: The Government has been working closely with education stakeholders on a mechanism to review this and other education related immigration policies. These discussions will continue following implementation of the regulations. It should also be noted that the Government will permit skilled workers to apply for permanent residence from within Canada. Recommendation 56 People in Canada on a work permit should be permitted to apply for permanent residence at a CIC office within Canada. Response: The immigration system has been designed in a way that houses the expertise for immigration programming and decision-making in its Missions abroad. CIC offices within Canada are not equipped to assess applications for skilled workers. That being said, the Government is facilitating the process for skilled workers to become permanent residents in Canada. For example, in most cases, applicants will not be required to leave Canada when making an application for permanent residence and will not have to undergo an oral interview. In addition, verifications may be able to be completed by phone or at a local CIC office. The Government continues to review its processes and system administration to ensure it can deliver the most efficient and effective service to clients. Recommendation 57 As recommended in our December 2001 report on border security, there should be relaxed landing requirements for applications made on humanitarian and compassionate grounds for people illegally in Canada who can demonstrate that they pose no risk to the country and are self-sufficient. CIC should create a proposal for implementing this recommendation for review by the Committee. Response: The existing guidelines for assessing humanitarian and compassionate applications already include instructions on assessing establishment factors for persons with or without legal status for landing in Canada. These guidelines provide the decision-makers adequate flexibility to take into consideration a range of factors when assessing individual circumstances including the degree of establishment, self-sufficiency and the risk to Canada. Recommendation 58 The regulations should permit applications to restore status to be made within 90 days of the expiration of the individual's status. Response: The Government agrees with the recommendation; this change is being reflected in the regulations. Recommendation 59 The regulations should provide that permanent residents comply with the residence obligation of section 28 of the Act if they are outside of Canada for the purpose of studies at a post-secondary institution, to care for a close relative who is sick, or if they are prevented from returning to Canada due to circumstances beyond their control, such as armed conflict or forced military conscription. Response: The Government believes the current residency requirements are sufficiently flexible. For example, in the case of students, they can be outside of Canada for three out of five years and still meet the residency requirements. The Government also believes that the humanitarian and compassionate provision contained in the Act is broad and flexible enough to address other special circumstances such as those referred to in the Standing Committee's report. Recommendation 60 The information required to apply for a permanent resident card should be targeted only to issues of identity and residency. Response: The Government agrees with the recommendation. The regulations are being amended to ensure that information from applicants for a permanent resident card is consistent with the residency obligations under the Immigration and Refugee Protection Act (IRPA). The requirements for references, as well as questions relating to the type of employment or studies engaged in and a person's location outside of Canada, are being been deleted in accordance with the Standing Committee's recommendation. A provision is also being added to allow applicants who could not comply with the guarantor requirement to make a statutory declaration in lieu of a guarantor. Recommendation 61 To enhance the security of the new permanent resident card, the government should introduce a biometric identifier once it is satisfied that the appropriate safeguards are in place. Response: The Government agrees with the recommendation. The Government is committed to implementing biometric technology, where appropriate, to enhance the integrity of the Immigration Program. The current specifications of the Permanent Resident Card allow for the storage of digital images of fingerprints, an iris scan, a palm print or facial recognition, as required. Issues to be addressed in moving forward include developing a biometric standard, and addressing privacy concerns as well as stakeholder interests. Biometric technology is also being examined in the context of the Smart Border Accord with the U.S. It is important to recognize that in the interim, the Permanent Resident Card will contain state of the art security features, including a unique laser-engraved photograph, as well as the signature, date of birth, height and eye colour of the holder, to prevent identity theft. Recommendation 62 Citizenship and Immigration Canada should treat the licensing of immigration consultants as a matter of priority. To that end, it should proceed with the groups representing consultants on the development and implementation of the College of Immigration Practitioners and implement this Committee's 1995 Report. Response: The Government is in the process of developing a strategy that will be discussed with stakeholders and provincial and territorial governments. Recommendation 63 Immigration and Refugee Board rules should provide as much latitude as possible for intervenors before the Refugee Appeal Division so that their expertise can be fully utilized. Response: On April 29, 2002, the Government announced the decision to delay implementation of the Refugee Appeal Division (RAD). Over the next year, the impact of delaying the RAD will be monitored and assessed, after which any measures deemed necessary will be taken. The Government believes the delay is necessary in order to control the inventory and processing delays for refugee claimants. This recommendation will be considered following the RAD review. Recommendation 64 The Immigration and Refugee Board should consider whether it would be appropriate for the rules to provide for intervenor participation before all divisions of the Board. Response: Through the Immigration and Refugee Protection Act, the Refugee Appeal Board has the power to render decisions that are precedential and is mandated to consider broader legal and factual issues in its hearings. The other three divisions of the IRB (Refugee Protection Division, Immigration Appeal Division, and Immigration Division) do not share the power to render decisions that are precedential. For these reasons, the Government believes that changes to the rules regarding intervenor participation before all divisions are not required. Recommendation 65 Clauses 108, 110 and 112 dealing with humanitarian and compassionate considerations should be redrafted to clarify their intent. Response: The Government agrees with the Committee's recommendation. The wording in the relevant sections and description in the Regulatory Impact Analysis Statement are being re-examined in light of the Committee's recommendation to clarify their intent and meaning. Recommendation 66 A non-exhaustive list of important factors that could be relevant to a humanitarian and compassionate decision should be included in the regulations. Response: Discretion is a valuable tool in meeting the overall objectives of Canada's immigration program. In order to ensure effectiveness, the maximum flexibility must be afforded to the Minister. As such, the inclusion of non-binding factors into a regulatory instrument is inconsistent with this approach. Ministerial guidelines to officers are the appropriate instrument to articulate these factors and will continue under the Immigration and Refugee Protection Act. Recommendation 67 To avoid a chilling effect on children's access to education, the regulations should include provisions to clarify for school authorities the intent of the Act regarding the education of minor children. Response: The Government is of the view that the Immigration and Refugee Protection Act (clause 30, subsection 2) is very clear on this matter and that no new regulations are required. Recommendation 68 Citizenship and Immigration Canada should develop clear procedures for school authorities to follow so that all minor children who are eligible may be enrolled in school. These should be communicated to school authorities. Response: The Government of Canada does not govern school authorities; education is an area of provincial/territorial jurisdiction. The Government continues to work in partnership with provincial and territorial governments to address immigration issues. Recommendation 69 The entrepreneur and investor programs should remain unchanged and each application should be judged on its own merits without reference to a set standard. Response: The Government is sensitive to the economic benefits entrepreneurs and investors bring to Canada and the need to ensure that the country remains competitive in attracting qualified business immigrants. After careful examination of these programs, the Government believes there is an urgent need for reform. The Auditor General of Canada confirmed this by noting that the business definitions under the Immigrant Investor Program were "vague and therefore difficult to apply". The Auditor General suggested that selection criteria be amended to "make them more conducive to a rigorous selection of economic immigrants and the achievement of the program's objectives". The regulations for business immigration programs increase objectivity and transparency, better maximize the programs' economic benefits, and create administrative efficiencies. Recommendation 70 The self-employed category should be broadened to include others who are capable of creating their own employment in Canada Response: The Government recognizes that self-employed people are important to the Canadian economy. It has carefully examined the Self-employed Program and reached the conclusion that reform was necessary to strengthen the program's integrity. The Government believes these individuals and other business immigrants can qualify more easily under the new selection grid for skilled workers. Recommendation 71 Clause 256 of the regulations relating specifically to the detention of minor children should restate the principle that a minor child shall be detained only as a last resort. Response: The Government agrees with the Standing Committee's recommendation. The regulation restates that for the application of special considerations for minor children it is affirmed that detention shall be used only as a measure of last resort. Recommendation 72 The regulations should be reviewed to ensure that they more accurately reflect that principle. Response: The Government is reaffirming in regulations that detention shall be used as a last resort for minor children. The regulations are to be applied in light of this guiding principle which is now reflected in both the Act and regulations. Recommendation 73 A reference to section 40(1)(d) of the Act should be added to clause 234 of the proposed regulations so that an inadmissibility report resulting from the loss of citizenship that had been fraudulently obtained would not need to be referred to the Immigration Division for a hearing, and a deportation order could be issued immediately. Response: The believes that the operational advantages of streamlining the process for a small number of cases would be very limited especially given that some of these cases are highly litigious. It is not anticipated that there will be any delay in scheduling these cases for admissibility hearings. Recommendation 74 Before the regulations come into force, they should be reviewed for clarity of language and for concordance between the English and French texts. Response: The Government shares the concerns raised by the Committee regarding clarity and concordance. As part of its commitment to official languages, the Government seeks to ensure concordance between English and French texts prior to release of documentation. Ensuring clarity of language is also a priority for the Government of Canada. Recommendation 75 The regulations should be amended to clearly indicate that a vehicle's lawful owner who did not participate in the fraudulent use of the vehicle, and who had no reasonable grounds to believe that it would be so used, will have their vehicle returned without any fee or payment. Response: The Government agrees with this recommendation. The regulations are being changed to clarify that the lawful owner of anything seized (including the lawful owner of a vehicle) who had no reasonable grounds to believe that it would be fraudulently or improperly used, shall have it returned without any fee or payment. Recommendation 76 Further consultation should be undertaken by the Department with interested parties in respect of Tranche 2 of the regulations. Response: The Government is sensitive to the short timeframes accorded the Committee for consideration of both tranches of the regulations, in particular, Tranche 2. The Government, with the Committee's support, is committed to the implementation date of June 28, 2002. The Government notes that the Government received consultations on Tranche 2 of the regulations until April 8, 2002, even though the Committee tabled its report on March 21, 2002. The Government thanks the Committee for its extensive review of the regulations and its recommendations. Information and explanations about the regulatory changes are in the Regulatory Impact Analysis Statement. |