Picture this: you are a commercial or real estate or tax lawyer or any other counsel advising a person on the effects of their actions and recommending a course of conduct or financial re-arrangement to ensure future security in land, money, or rights. You are an expert in your area, are well paid for the advice and provide a sound, unassailable opinion. The clients structure their financial and personal affairs to follow a future path of conduct aimed at ensuring growth, security, and prosperity.
Now picture this: it turns out the advice you gave was wrong. Not wrong when you gave it, wrong now, today, when it counts. It turns out the government had secretly changed the rules of the game months before and just not told anyone about it. Then, to ensure immunity from any legal course of action, passed legislation retroactively changing the law. So all that money invested, restructuring done, and plans made for the future was for nothing.
I am sure if this were to happen in any of the above areas of practice, a firestorm of legal and political rebuke would be hurled at the government with such fervour, and so much litigation, that the government would either fall or back down from such an outrageous law. After all, if a company or an individual can’t plan where they or their money is going to be in the future, they have no future.
Remarkably, this is precisely what the government of Canada has done to large numbers of immigrants seeking permanent residency in Canada. They have enacted policies and passed laws that retroactively changed the future for countless prospective immigrants, many of whom had fundamentally altered their life direction to invest in and prepare for their life in Canada.
Homes were sold, jobs given up, children taken out of school, all in preparation of moving to and living in Canada — only to be told the rules had changed, and they were no longer welcome.
Here’s what Canada did. The Canadian Experience Class was one of many popular programs started a number of years ago to allow foreign nationals working in Canada or who had been through school in Canada a chance to become permanent residents after they had gained “Canadian experience.”
Indeed, in clear guidelines to prospective immigrants, the government announced if they came to Canada, met a clear set of criteria that included language abilities, education, and work experience, permanent residency was assured. Immigration lawyers were consulted by hopeful applicants, and given sage advice; come to Canada! We need people like you.
Decisions to relocate to another country or continent are not lightly taken. Families around the world, seeking a better life for themselves and their children, would have been cautious. They would have held numerous family meetings, consulted community leaders and other relatives or countrymen and women who were already in Canada. Is it true, they would have asked? Yes, we can trust this information. It comes from the government of Canada!
Trust is a commodity in immigration, which is of the highest value. Unscrupulous sharks swim the immigrant pools and truth is often hard to find. However, the government of Canada on its very web site confirmed it. The information could be trusted.
Then, the government changed the rules. Starting January 2015, all prospective immigrants were to dump their resumes into a “pool” from which immigration officers would select the best candidates. Notwithstanding the fact a person may have qualified under the Canadian Experience Class and been assured a permanent place in Canada when he or she made plans and said their goodbyes and moved their life to Canada, now they had to jump in the pool, tread water with thousands of others, and wait to be pulled out — if they are pulled out. It is a big if.
Uncertainty in the process is only a part of the problem. The government gave some notice of when they were shutting down the other programs and starting the pool. Jan. 1, 2015 became the cut off. Can people apply under the Canadian Experience Class up to Dec. 31, 2014? Yes, came the reply, they can. Many did.
As it happens, that was not true. The quota set for Canadian Experience Class applicants had been reached in October 2014 and no new applications would be accepted after. No one — including the immigration bar — was told this information, which only became public after applicants began receiving rejection letters.
You would think that this retroactive change in the law would be ripe for litigation picking; so many families have been affected, so much money lost and plans undone. However, as unfair as it appears and as preposterous and unimaginable in other areas of law as it may be, any court-directed remedy seems unlikely.
In a recent decision of the Federal Court of Appeal in Austria v. Canada (Citizenship and Immigration) (also known as Tabingo), the court held that some 1,400 applicants for permanent residency in Canada who had applied before 2008 and, due to resource and staffing issues within Canada Immigration, had not had their applications considered before March 2012, had no legal basis for complaint when their applications were arbitrarily refused.
The legislation at issue was an amendment to the Immigration and Refugee Protection Act called the Jobs, Growth and Long-term Prosperity Act. This law decreed the above cut-off dates, and said it in very clear language. That was the problem for the litigants. Parliament can retroactively take away your non-constitutionalized rights, provided it does so in clear and unmistakeable terms.
Next, the applicants argued the legislation was so arbitrary as to offend the principle of the “rule of law.” The Court of Appeal noted that validly enacted legislation does not violate the rule of law principle and so rejected this argument as well.
So, it seems that the best laid plans of foreign nationals seeking a better life in Canada are not worth the Skilled Worker Program or Canadian Experience Class applications they are written on.
This poses the question: In immigration policy and practice, what’s law got to do with it?