Important Updates on the Federal Skilled Worker Backlog Court Case

CIC News
Published: October 1, 2012

As many readers of CIC News are aware, recent changes to Canada’s immigration legislation have called for the closure of Federal Skilled Worker (FSW) files submitted before February 28, 2008. Campbell Cohen law firm has been at the forefront of challenging the legality of these changes. Currently, Campbell Cohen is representing 897 pre-February 2008 applicants and their dependents, and along with other lawyers has brought this issue before the Federal Court of Canada.

If you submitted an application to the FSW program before February 28th, 2008, it is not too late to join. Click here to add your name today.

A Quick Background

In an effort to better select Canadian Permanent Residents and reduce immigration backlogs, in February 2008 the Canadian government amended the Immigration and Refugee Protection Act. The amendments granted the Canadian Immigration Minister the authority to take action (issue instructions) such as establishing application intake quotas, new application requirements, and new immigration categories. The changes in this amendment apply only to applications submitted on or after February 28, 2008.

The Immigration Minister, under the amendments, made changes to the FSW that included restricting the number of eligible occupations and introducing an intake cap of 20,000 (later reduced to 10,000) applications a year.

These new instructions created a hierarchy within the files waiting to be processed. Newer files were processed faster than those submitted before February 28, 2008. As of March 2012, there was still a significant application backlog. The Immigration Minister therefore made the decision on March 20th, 2012 to eliminate those applications submitted to the FSW program before February 28, 2008. This amounts to the return of approximately 280,000 immigration applications.

A more detailed background can be found in CIC News’ earlier article on the subject.

The Court Case Today

The lawyers arguing the case before Federal Court have two primary objectives. Firstly, they are seeking their cases to be certified as a Class Action Lawsuit. To do this, the Court must be convinced that all applicants who are challenging the decision may be represented as a single unit, or class. If successful, these applicants will have their claims argued in a single Court hearing. The result of the hearing will apply to all applicants. The second objective goes to the merits of the case. The Court must first determine that there is a serious issue to rule on and if it does, then the Court must ultimately decide if the government’s action is legal or illegal. The Certification Hearing will be held in November 2012.

On September 18, 2012 a Stay Motion was presented to the Court wherein the lawyers requested an Order that would prevent the government from beginning the process of terminating applications and returning government processing fees. The Motion was dismissed, but all was not lost because:

  • An agreement was reached with the Department of Justice on behalf of Citizenship and Immigration Canada (CIC) to:
    • not initiate communication with applicants to process termination of their applications;
    • not issue refunds unless applicants directly wish a refund; and
    • not destroy files until the outcome of the next step in the proceeding in November
  • It is clear following this proceeding that based on fact and law individual applicants can challenge the termination of their applications in Federal Court, if necessary.

CIC News will continue to keep readers informed of all important updates regarding this historic Court case. If your application is among the 280,000 facing termination, you still have time to make your voice heard.

CLICK HERE TO CHALLENGE THE GOVERNMENT’S DECISION

By making your one-time payment of USD $500 and filling out your case information, you will be added to the quickly growing list of claimants. The immigration lawyers fighting for your case will take it from there, building an argument and presenting their case in Court. In this way, you can make sure that your voice is heard, and if a decision is made that benefits pre-2008 applicants, you will be the best position receive your just rewards.

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