By Catherine McAteer, October 22 2010 issue, Lawyers Weekly

A seemingly innocuous administrative instruction issued earlier this year by Jason Kenney, Minister of Citizenship, Immigration and Multiculturalism, 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 applications. 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 language ability in writing (which could include evidence of education in English or French and writing samples). Typically, citizens of English or French speaking countries or applicants who had been educated in such a country would elect to avoid the language test and submit other evidence.

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 “ministerial instruction.”

The power of the minister to issue instructions regarding the way in which applications are processed by Citizenship and Immigration Canada is relatively recent. On June 18, 2008, parliament approved changes to IRPA, which removed the obligation 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 eligible for processing in order to “best support the attainment of the immigration goals established by the Government of Canada.”

Unlike regulatory changes, ministerial instructions under IRPA do not need to be published in proposed form, nor is there an accompanying Regulatory Impact Analysis Statement, 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 changes 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 Federal Skilled Worker program to restrict the number of permanent residence candidates who would qualify. Many prospective permanent residence applicants who had not yet submitted their applications discovered that they no longer qualified under the program. The second set of instructions, issued in June of this year, included the mandatory language testing requirement, and 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.

Immigration lawyers across the country are speaking out on this issue. On Aug. 30, in response to the minister’s actions, Chantal Arsenault, vice-chair of the national immigration section of the Canadian Bar Association wrote a letter to Minister Kenney on behalf of the section, calling on him to rescind the language testing requirement. She wrote that “regardless of one’s opinion on the desirability of mandatory third party language testing, the democratic process and the rule of law should be upheld when it comes to the issuance of ministerial instructions [under IRPA].”

Simply put, the power of the minister to issue instructions under IRPA does not extend to issuing instructions that are inconsistent with or overrule existing legislation. The immigration community continues to wait for a regulatory change or response that would legalize the ministerial instruction requiring mandatory language testing. In the meantime, however, an alarming precedent has been set by the government, which should raise concern among lawyers and all Canadian citizens who value their democratic process.

Catherine McAteer practises business immigration and employment law with the law firm of Spectrum HR Law in Calgary.