Canadian Immigration Lawyers Association recommends IRPA legislation reform

Last month, members of the Legislative Reform Committee from the Canadian Immigration Lawyers Association (CILA) released a report outlining how CILA would like to see the Immigration and Refugee Protection Act (IRPA) reformed.

IRPA is legislation, first introduced in 2001, that the Government of Canada uses to define rules and regulations concerning Canadian immigration and “the granting of refugee protection to persons who are displaced, persecuted or in danger.”

What legislative changes does CILA recommend?

With a stated goal focused on “providing policymakers with [an understanding of] the legislative changes that Canadian immigration lawyers [see as] most urgent”, this CILA report argues that current Immigration, Refugees and Citizenship Canada (IRCC) IRPA legislation should be updated because “IRPA has not been comprehensively reviewed and amended since its proclamation” in 2001.

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CILA was founded in 2020 by immigration lawyers from across the country. This association was created “to be the voice of Canadian immigration lawyers, offering well-informed reactions and commentary on immigration-related news, initiatives, and changes.”

CILA also holds several stakeholder meetings throughout the year, including meetings with top IRCC officials like Minister Marc Miller and former Assistant Deputy Minister Christiane Fox.

While this article does not cover all areas of policy where CILA provides recommendations*, the following will outline what CIC News believes to be CILA’s most pertinent recommendations in the areas of inadmissibility and family-class immigration.

Note: Any mention of IRPA policy below summarizes the stated policy. Please refer to the full Act for a detailed explanation of the relevant policy/procedure.

Inadmissibility

CILA recommends several noteworthy changes to IRPA legislation surrounding inadmissibility.

These changes would greatly alter how the Canadian government treats inadmissibility cases.

Medical inadmissibility

For instance, CILA recommends that the government repeal two rules concerning medical inadmissibility.

Specifically, CILA wants to eliminate the IRPA legislation that deems foreign nationals inadmissible to Canada if it is determined that their health condition is likely to be a danger to public health and safety or may place excessive demand on health and social services. This means that, although criminal inadmissibility would remain the same, foreign nationals would no longer be medically inadmissible to Canada regardless of their medical condition.

Financial inadmissibility

Furthermore, the proposed amendments to inadmissibility legislation would result in reduced requirements and consequences from IRCC. Firstly, findings of financial inadmissibility would require the department to first consider outside* financial support available to an applicant. This means that immigration applicants would have more options to prove their financial sufficiency before they are found inadmissible to Canada.

*CILA’s proposed amendment suggests IRPA should expand financial support to consider an applicant’s “family or organizations”

Misrepresentation

Additionally, CILA’s proposed amendments to IRPA’s consequences for misrepresentation would result in less severe consequences (ex. one-year ban rather than five, a scale for misinterpretation penalties) for those found guilty and more ways for people to overcome guilty verdicts (ex. discretionary waiver of an existing ban). These changes, which would allow barred applicants to apply for re-entry to Canada before their ban expires, would also allow those found guilty of misrepresentation to try re-entering Canada sooner than current legislation allows.

Note: CILA clarifies that, in their recommended amendment, barred applicants who apply while their ban is in effect must still wait until their ban expires for their application to be finalized.

Family-class immigration

CILA family class-related recommendations suggest that IRPA adjust policy in a manner that would notably expand current legislation.

In particular, CILA’s recommended changes would impact who can come to Canada, who can sponsor a family member and how IRCC defines certain familial relationships.

Exclusion from the family class

For instance, CILA is calling for the repeal of an existing IRPA policy that permanently blocks a foreign national from membership in the family class of Canadian immigration if they (the foreign national) were previously a non-accompanying family member (therefore not examined) of their current Canadian permanent resident sponsor.

Presently, IRPA bans these foreign nationals from family-class membership because they are considered an undeclared family member of the sponsor. However, should this policy be repealed, many (currently excluded) foreign nationals would regain eligibility to immigrate to Canada through family-class programs.

Sponsorship by permanent residents

Additionally, CILA recommends that permanent residents also* be allowed, under IRPA, to sponsor a foreign national regardless of whether they are residing in Canada or not when they apply to be a sponsor. This would expand the group of Canadian residents eligible to sponsor a family member.

*Currently, only Canadian citizens can sponsor an eligible foreign national while they presently reside outside Canada

Expanding eligibility for family class immigration

Further to the above, CILA is proposing two policy changes – one amendment and one addition – that would together broaden who can come to Canada through IRCC’s family-class immigration programs.

Specifically, CILA is recommending that IRPA amend its definition of familial relationships by changing the policy’s language. Although IRPA currently indicates that a foreign national is not a spouse, common-law partner or conjugal partner of another person if the corresponding relationship is not genuine or if the relationship was entered into primarily to acquire any status or privilege under IRPA, CILA would like the language (between the two ‘if” conditions) to be changed to “and” instead of “or”.

By clarifying that a relationship is invalid if it meets both “if” criteria rather than either one, a greater number of foreign nationals will be eligible for family-class immigration to Canada.

The same effect is achieved by a proposed addition to IRPA legislation. This would see fiancé relationships restored as part of the family class, adding another category to a family class immigration system that already includes spouses as well as common-law and conjugal partner relationships.

Study permits for minor children

Finally, CILA is proposing a policy amendment that will simplify which minor children require a study permit in Canada. While current IRPA legislation surrounding this policy uses the term “minor child”, CILA would like IRPA amended to replace that language with either “dependent child” or “child under the age of nineteen”.

This alteration would make it so that some students, who currently require a study permit in the middle of an academic year*, would no longer be required to interrupt their education by having to apply for and receive a study permit before they can complete their education for that year.

*Examples of students who may fall under this category include those who turn 18 in the middle of their senior year of high school and students born in the first half of the year

What happens now?

Should IRCC consider CILA’s policy recommendations, any changes to IRPA legislation will take time to come into effect. This is because changes to government policy require legislation to move through a detailed, multi-step approval process, meaning that it may take several years for any of CILA’s recommendations to be implemented into IRPA.

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