The clock is ticking: Act now

Opinion & Analysis Aug 16, 2004 at 2:34 pm

Canadian Immigration Views
By Berto Volpentesta

TORONTO—Time may be running out for thousands of applicants who were refused or who had withdrawn their applications for permanent residence under Canada’s Economic Classes. This time, you don’t want to be the one left out of the Canadian cold.

Last December 3, 2003 the rules for applicants in the Economic Class (Skilled Workers and Business Immigration) who had applied for permanent residence were adjusted (The December Amendments). This was done to bring an end to the turmoil created by the effects of the retroactivity provisions included in the Immigration and Refugee Protection Act (IRPA) and the Regulations (IRPR) when they were implemented in June 2002.

These December Amendments came into force December 1, 2003. The amendments affect Economic Class applicants who applied to come to Canada under the selection criteria of the former Immigration Act. That is to say, those that applied prior to January 1, 2002. The amendments seek to rectify the severely unfair treatment that applicants who had applied before January 1, 2002 would receive by the changing of the rules part way through their processing. In many cases applicants who had applied prior to January 1, 2002 had already been waiting for several years (sometimes up to five years). These applicants had been waiting for and expecting a process that would lead to permanent residence in Canada, at least according to what the rules were when they applied.

But when the rules changed, and the government decided to implement the new rules backward to all cases all the hopes and dreams of those thousands upon thousands of applicants were shattered because they were no longer qualified under the new rules introduced June 2002. This of course led to great upheaval and unrest. Several lawyers filed actions against CIC and became a class action suit attempting to force the hand of the government. In part, that led to the December Amendments.
The December Amendments mean that all applicants who filed before January 1, 2002 will receive fair treatment. That is, they will get what they were expecting and further, they will be assessed under whatever selection criteria would favour their application best. This was the tradition with CIC before June 2002 and the introduction of IRPA.

The December Amendments apply to applications filled before January 1, 2002 as a Skilled Worker or Business Immigrant and where the file was still pending or in progress as of December 1, 2003; or the application was withdrawn on or after January 1, 2002 and before December 1, 2003; or the application was refused after March 31, 2003 and before June 20, 2003.

For those applications that are still in process, the visa posts were to contact you for further information such as English tests or updated information to allow them to make the best assessment. Given that the score under the new rules has been lowered to a very low 67 points, it is likely that with sufficient documentation and update of your file and especially by demonstrating high proficiency in English or that you have managed to obtain Permanent Arranged Employment in Canada (an offer confirmed by the Human Resource Department), your application will be successful. While many have been contacted, many remain to be contacted. It would be a good idea to send the documents now to help your case.

For those who already provided the information but have not been approved yet, there is cause for concern. The court had ordered that CIC could not refuse any cases until the order was lifted. The order is set to be lifted sometime this month. If you have provided the extra information and did not receive a positive answer, it could be that the visa post is simply waiting for the order to be lifted before refusing your application. (This is a little off topic but I thought it is important enough to mention now for those interested in acting quickly on their existing application)

In any of these cases prescribed by the dates above, there is renewed life in your application. However, it is important to act quickly in some cases. For example, if you withdrew your application or if your application was refused within the prescribed dates, you must make a new application before January 1, 2005 (in some cases you do not even have to pay the fee again). If you do not, you will not benefit from the amendments and will be subject to whatever rules exist when (if) you finally decided to try again.

The clock is indeed ticking. To have a complete application ready before January 1, 2005 you should be working on that right now.

Have a question? Send them to Berto Volpentesta or to the editor.
Berto Volpentesta of SV Canada Immigration Specialists (Sidhu