Canada’s Immigration Minister Needs Oversight

The Minister of Immigration, Refugees and Citizenship (IRCC) needs more oversight than Parliament alone can provide. I am joining the calls for an arms-length watchdog position to be created that monitors IRCC and reports to Parliament on an annual basis.

The purpose of such oversight is to further scrutinize how IRCC is functioning and meeting its stated program delivery and budget goals. Canadians and those who apply to immigrate to Canada, deserve more transparency than the Minister and IRCC are currently offering.

A case in point is the current Omnibus Budget Bill (Bill C-19) which numbers 440 pages and has a 22-page index. It includes changes to the Immigration and Refugee Protection Act (IRPA). The proposed amendments will permit the Minister to further specify and target applicants who have expressed an interest to immigrate to Canada under various economic classes. These applicants, mainly skilled and economic immigrants, currently apply via an online portal to enter an Express Entry selection pool. The Minister then instructs who gets selected via specifically issued Ministerial Instructions.

This “pool” approach replaced the “stand in line and wait” approach, since IRPA was enacted in June 2002. In effect, IRPA replaced the problem of having long inventories of economic applicants who had applied and then waited.

Pre-2002, the Minister had to process them, no matter how long it took. The Minister’s hands were tied, and immigration policy stagnated. The post-2002 pool approach lets the Minister control inventories by choosing from those who express interest. It is only after they are chosen, that they become applicants. The plan was for the pool to become a “just in time” processing method, replacing the “aging inventory” method pre-2002.

For the pool approach to work, the Minister was granted special powers known as Ministerial Instructions. These instructions permitted the Minister to avoid Parliamentary approval and set selection criteria. The oversight mechanism envisioned was that the Minister would report to Parliament, after the fact, on an annual basis. The Ministerial Instruction process was touted as being timely, nimble, targeted, and transparent.

If the 2022 proposed changed are passed, and there is a high likelihood that they will be, the Minister could further micro target immigrant selection by occupation, skill level, experience, source country, proposed Canadian city of settlement, and more. Think of the difference between a blunt butter knife and a fine edged scalpel.

Alarm bells began to ring loudly as the Senate Standing Committee on Social Affairs, Science and Technology began hearings on the proposed changes to the Minister’s powers in early May 2022. Did the Minister have too much power to issue selection instructions? What were the oversight mechanisms and were more required?

My view is that the Minister needs more oversight, but I am not alone in this view. In August 2012, the Canadian Bar Association (CBA) passed Resolution 12-06-A specifically noting that while Ministerial Instructions can increase the speed with which changes to Canada’s immigration system can be implemented, they “also decrease the system’s predictability and transparency”. The resolution stressed that the former approach of regulatory amendment via Parliament struck the “appropriate balance between flexibility and predictability.”

In February 2013, the CBA passed Resolution 13-04-M urging the Government of Canada to not use omnibus legislation to “enact substantive legislation”.

In November 2013, the CBA wrote to the Senate and once again noted that the Ministerial Instruction process thwarted the ”certainty of selection” on which “people plan their lives”. Before the Minister was to be granted any more powers, the CBA sought public, meaningful, and substantive consultations.

IRCC views reporting to Parliament, after Ministerial Instructions have already been implement, as a check and balance on Ministerial power. Clearly this is not the case. For example, Annex 4 of the 2021 Annual Report to Parliament on Immigration includes an Erratum that Ministerial Instructions from 2015-2019 were not reported in previous Annual Reports.

For me, this error, while not fatal, frames yet again why more Ministerial oversight is needed. After the fact reporting cannot replace going to Parliament and seeking permission before substantial new selection criteria are implemented.

Bringing more immigrants to Canada is now accepted as a fundamental part of Canada’s economic and social policy by most Canadians. Canada keeps projecting an “open door,” yet fair and stringent, selection message to the world. We need to make sure that the processes by which selection takes place are not left to Ministerial fiat but rather, are subject to sufficient oversight not only by Parliament but by an independent scrutineer who reports to Parliament annually.

NOTE: A previous version of this article was published in Business In Vancouver

NOTE: The Parliamentary Committe report and recommendatsions can be read here