Canada’s Immigration and Refugee Protection System Needs a Comprehensive Overhaul (July 2014)

Notes for remarks to the Rotary Club of West Ottawa

When I settled on today’s topic – my experience on Canada’s Immigration and Refugee Board, spanning some seven-plus years from 1998 to 2005, I had a number of options. I could of course describe some of the many disturbing stories of severe persecution faced by a variety of claimants from all corners of the world – something that constantly reminds you of how lucky we are to live in a free and democratic country like Canada.

I could also describe many stories of how individual claimants made it to Canada’s shores – like the young man who left Central Asia and eventually crossed the Atlantic in a lifeboat on a container ship from Barcelona, and then dove into Halifax Harbour. Or the more tragic ones involving unconscionable payments to unscrupulous smugglers and other criminal elements engaged in human trafficking.

What my experience on the Immigration and Refugee Board has really given me is a valuable on-the-ground view of the overall immigration and refugee protection system, and an understanding of how critical this system is to Canada’s future and our social and economic fabric.

Immigrants have always been crucial to building Canada and enriching both our economy and society. Immigration now accounts for all net labour force growth. By 2030, 100% of our population growth will come through immigration (already about 60% does).

It is an exciting time to be Canadian – we have enormous potential. Canadians from all corners of the world are building one of history’s most fascinating, diverse and cosmopolitan nations.

Regrettably, however, our immigration and refugee protection system is not prepared for the 21st century realities or challenges. A system with more than 50 entry streams that by 2010 had produced a backlog of one million applications, with many in the queue for five or six years, is a dysfunctional nightmare. It is an embarrassment to a country like Canada that increasingly depends on interconnectedness with the rest of the world.

For the lucky ones who make it through the byzantine process and arrive here, the recognition of their educational credentials and work experience still takes many more years — or may never happen.

The evidence is all too clear that the latest wave of immigrants, although many are better educated than their predecessors, have more trouble getting jobs, reuniting their families, and finding proper housing and health services.

The huge mismatch between the skills of new Canadians and their actual employment here is astonishing. Over one-third of all immigrants with university degrees are now in chronic low-income categories, compared with only 13% in 1993, before the immigration laws were changed to encourage more educated immigrants to come to Canada. For many, there is a real sense of exclusion within a society that fails to give them equal opportunity in practice.

We need a comprehensive overhaul of our immigration and refugee protection system to bring it, however belatedly, into the 21st century. And any serious overhaul must start with the fundamental principle: immigration is about citizenship. We are first and foremost welcoming future citizens. The goal of our immigration system must be to maximize the chances of successful integration for all new Canadians.

The good news is that our federal government has recognized the need for urgent action to improve the process by which some quarter-million people enter Canada as immigrants or refugees each year. The bad news is that too often the government avoids parliamentary debate and rushes through haphazard reforms that would normally merit widespread public input and discussion and require formal legislative change. As a result, some reforms offend our basic democratic values and the rule of law, while others are ill-thought-out and badly-executed. These include the following:
• Expanding without sufficient justification the arbitrary powers of the Minister of Immigration;
• Abruptly wiping hundreds of thousands of people off the waiting list that they had so patiently endured because of Canadian administrative failure;
• Encouraging huge numbers of temporary workers with no attachment to Canada;
• Imposing a moratorium on family reunification, despite the undisputed importance of family support to an individual’s success in working and contributing to their community and country;
• Effectively terminating health benefits for many refugee claimants, something that just last week was struck down as unconstitutional by the Federal Court.
The upshot of all this is an immigration system that is currently marked by incoherence and a lack of evenhandedness that should worry all Canadians.

We need intelligent and open public debate to build a coherent immigration system that is efficient and fair; a system that will help immigrants and refugees succeed as citizens.

The time is overdue for Canadians to undertake a serious and comprehensive overhaul of the immigration and refugee protection system and take the time necessary to get it right. And this means substantial parliamentary debate to ensure that reforms gain the confidence of Canadians and serve the long-term national interest, not just a fickle business cycle.

In the time remaining to me, I will briefly address four specific areas: (1) the refugee protection system, (2) temporary foreign workers, (3) the recognition of foreign credentials and work experience, and (4) adequate funding of both front-line operations overseas and integration efforts within Canada.

1. The refugee protection system.

The refugee protection system involves extremely small numbers relative to our overall immigration — current levels of refugee claimants have now dropped well below 20,000 annually. Nevertheless refugee protection is a critical element of Canada’s interface with our global village.
Some of the federal government’s refugee protection changes head in the right direction, such as tightening up some administrative time frames and substituting appropriately-trained public servants to do the initial determination of whether an applicant is a refugee, subject to a quasi-judicial appeal.
But the government has proceeded with these and other measures based on a misguided and unsubstantiated view that there is an enormous problem with bogus refugees creeping across our borders or arriving by the boatload, attempting to circumvent the clogged regular immigration system and making unfounded refugee claims.

Certainly, with the regular immigration stream backlogged to an extraordinary degree in recent years, a small number of refugee claimants could be considered so-called queue-jumpers. But from my experience as a member of the Immigration and Refugee Board, truly bogus or manifestly unfounded claims are made by only a tiny fraction of the refugees who arrive.

Surely we can do a better job of identifying these few claimants and ensuring that they do not stay in Canada, undocumented and under the radar. Then we can focus on the other important changes needed to fix our byzantine and cumbersome overall immigration system.

Instead the government chose to arbitrarily and controversially establish so-called “safe countries” from which refugee claims cannot be made, as well as unduly limit legitimate appeals of rejected claims. In addition, new rules severely restrict consideration of humanitarian and compassionate reasons justifying Canada’s protection of persons who cannot quite satisfy the very strict international definition of a refugee.

My years on the Immigration and Refugee Board convinced me that there are important and valid reasons to retain the supplementary humane and compassionate hearing. I was convinced that the most efficient and fair approach would be to combine the two hearings into one, with the same decision-maker determining a claimant’s eligibility as a refugee and, if the claim was unsuccessful, also determining whether humane and compassionate reasons nevertheless justified the claimant staying in Canada. The government, however, has chosen to go in the opposite direction without sufficient public debate.

It is helpful to illustrate this humane and compassionate component by reference to Philippe Falardeau’s brilliant 2011 film called Monsieur Lazhar. Monsieur Lazhar was an Algerian refugee, whose wife and two children had been brutally murdered by his political opponents. There was no doubt as to the validity of his claim. But suppose a few years later, his widowed mother arrives in Canada and makes a refugee claim. Suppose her claim is heard by a decision-maker who happens to take what is considered to be an excessively narrow view of the risk of persecution noting, albeit harshly, that she has not yet been targeted by the persons who murdered her daughter-in-law and grandchildren and therefore can safely return to Algeria. Monsieur Lazhar’s mother would then commence an H & C application. And some five-plus years later at a cost to taxpayers of over $10,000, in addition to her personal costs, she would very likely be permitted to stay. In my view, combining the two hearings not only makes common sense, but also contributes to greater overall efficiency and fairness.

At the same time as assuring greater efficiency and fairness in the refugee determination process within Canada, we must also vastly expand and improve our front-line overseas ability to process refugees. Our anemic processing of refugees from Syria is truly shocking. With the number of Syrian refugees now exceeding four million and climbing, Canada has accepted a mere 177 government-sponsored, and 108 privately-sponsored, refugees. A further 1102 Syrians have apparently made successful inland claims, having arrived in Canada on their own either before or after the conflict began.

But this is pathetic compared to the kind of effort Canada made in the past such as when we accepted over 60,000 Vietnamese boat people. Or compared to Sweden’s acceptance of 14,000 Syrian refugees to date. Not to mention the hundreds of thousands displaced across Lebanon, Jordan and Turkey.

2. Temporary foreign workers.

When immigration is viewed through the lens of citizenship focusing on the successful integration of new Canadians, then the controversy over temporary foreign workers should surprise no one.

The Temporary Foreign Worker Program entrenches the bizarre concept that Canada is prepared to expedite the entry of persons whose sole purpose is to work here, often without protections, and develop absolutely no attachment to our country. (The Caregiver Program is a notable exception). Only a few provinces haphazardly provide for a path to citizenship for certain temporary workers through disconnected Provincial Nominee Programs.

Yet successful immigrants come with a wide range of skills that are equally valuable to both our society and economy. And all immigrants regardless of province or territory deserve equal protection and an equal chance at successful integration into Canada as citizens.

Certainly we need to streamline and accommodate the various provincial needs and employer demands. But it must be done within a coherent long-term national framework. This is something that requires sustained federal and provincial collaboration, and a much-simplified and efficient immigration entry system that is integrated with employment- and training-related structures.

It is not served by a Temporary Foreign Worker Program that has grown out-of-control, or by the complex, back-of-the-envelope changes that were hastily announced as policy-masquerading-as-law, a few weeks ago.

Moreover, the evidence shows that the more the government imposes harsh and arbitrary deadlines for temporary workers to return home, the more people will choose to live undocumented in Canada after overstaying their visas.

Alternatively they will simply seek other ways into Canada. In this connection, in a curious twist, while the government appears to be clamping down on the Temporary Foreign Worker Program that is under the aegis of Employment and Social Development Canada, it is quietly encouraging an even greater number of short-term low-skilled workers to enter through another stream – the International Experience class – under the aegis of Citizenship and Immigration Canada. No less than 58,000 persons were accepted in this way in 2012 to fill low-skill service sector jobs.

There could be no better example of the need for a comprehensive overhaul than this: one government department opening the door, as another department shuts it.

In the longer-term, the better way to address the current shortage of Canadian employees with certain skills is to allow market forces to push wages up and encourage more people in Canada to train for the occupations in high demand. It is now widely accepted that the government’s clumsy intervention of a couple of years ago to artificially suppress wages under the Temporary Foreign Worker Program ultimately produced the explosive growth in low-skilled temporary foreign workers that in turn necessitated the recent ill-thought-out changes.

At the same time, the federal government should urgently take the lead and bring together provincial governments, educational institutions and private sector players in order to coordinate the provision of extensive apprenticeship and training opportunities, as in Germany. This will benefit all Canadians including new Canadians.

3. Recognition of foreign credentials and work experience

We must establish, once and for all, expeditious certification mechanisms to recognize foreign credentials and work experience. It is unbelievable that we still have no workable procedures for their efficient recognition. Apparently most prospective immigrants are still being told just to contact the relevant provincial authorities to initiate the necessary action to assess their credentials or experience. But absurdly the provincial authorities then tell them that they must be physically in Canada to pursue the assessment – something that is of course impossible at this preliminary phase of the application process.

Establishing a more effective process for foreign credentials recognition, however, requires more than long-overdue adjustments to immigration procedures. It also requires reciprocal recognition of credentials and work experience within Canada. The federal government must lead a collective effort to finally complete our Canadian economic union and to remove the myriad of barriers to the mobility of people and businesses across provincial borders. This will not only facilitate the pre-clearing of foreign credentials and work experience, but most importantly, it will immeasurably benefit all Canadians and strengthen our economy.

4. Adequate funding of both front-line operations overseas and integration efforts within Canada

The across-the-board budget cuts in immigration make no sense from an economic management perspective.

At a time when we know we need more immigrants, Canada needs an effective and efficient frontline immigration organization outside Canada. We need more, not fewer, immigration-processing centres, and more, not fewer, competent Canadian front-line staff. And this staff must have all the resources they need to complete security and identity checks, and to sort out issues of foreign credentials and work experience in an efficient manner.

Appropriate efficiencies in any system can always be found. Within Canada, for instance, we could set up a single Canadian national office to coordinate the too-often ineffective provincial government efforts to recruit international students to come to Canadian universities.

Federal-provincial agreements on settlement funding also need to be reviewed and recalibrated to ensure efficiency and to maximize the successful integration of new Canadians. Settlement funding has to be determined according to the particular needs of the immigrants – and this will vary considerably across provinces from time-to-time. A cookie-cutter, one-size-fits-all formula is not useful, as Ontario knows all too well.

This review and recalibration will have to address the Canada-Quebec Accord of 1991 that guarantees Quebec a minimum proportion of national funds regardless of how many immigrants actually come to Quebec. Although there are reasons to justify some inter-provincial variations in settlement funding, it is simply not possible to justify the current disparity between the federal support for an immigrant arriving in Montreal, versus one arriving in Toronto or Vancouver. The funding formula in the Canada-Quebec Accord is so rigid that even if no immigrants arrive in Quebec some year, the level of settlement funding will still increase. We really have to address this anomaly in order to establish equitable and effective settlement funding across the country.


Canada has become a magnet to people from around the world. People choose Canada because we have the best of universal values: justice, equality, diversity, the rule of law, fundamental freedoms, equal rights, non-discrimination. People choose Canada because of our ability to successfully live together peaceably, compassionately, and respectfully, exercising the mutual responsibilities that go along with the rights of citizenship.
We have transformed in a relatively short period of time into the most cosmopolitan and diverse society in human history. And because of our accident of geography ─ vast spaces from sea to sea to sea ─ we have a huge potential to transform even further. It is time to ensure our immigration and refugee protection system is up to the challenge.