Vol. 142, No. 16 — April 19, 2008

Regulations Amending the Immigration and Refugee Protection Regulations (Permanent Residents)

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

(This statement is not part of the Regulations.)

Description

Citizenship and Immigration Canada (CIC) is proposing amendments to streamline existing processes related to language assessment of skilled workers, and to make it easier for foreign nationals who have valid temporary resident status in Canada to become permanent residents without having to be admitted at a port of entry.

Language assessments

The Immigration and Refugee Protection Regulations (IRPR) [section 79] state that federal skilled worker applicants may demonstrate their language proficiency by either submitting the results of a designated third-party language test, or a written submission. Regardless of which option is chosen, both are assessed against one standard in the awarding of language points—the Canadian Language Benchmarks, for English, or the Niveaux de compétence linguistique canadiens 2006, for French. The Department is planning to repeal the option of providing a written submission and require all federal skilled worker applicants to submit the results of third-party language tests as proof of language proficiency. This will also apply to business class immigrants, as they are required to comply with section 79, as stated in paragraph 102(1)(c). The impact on business class immigrants will be minimal, given that they have a substantially lower pass mark. Consequently, very few business class applicants require language points in order to be selected.

This proposed amendment will make the language assessment process more objective and transparent by making clear an applicant’s language proficiency in writing, listening, reading and speaking, through test results from a third party with the requisite expertise to assess a person’s language proficiency. Furthermore, streamlining this process will improve operational efficiency and, ultimately, client service by improving individual and, therefore, aggregate case processing times.

Two additional technical amendments are also being proposed to these Regulations: (a) to correct an error in the marginal note indicating the points awarded; and (b) to update the French version of the language assessment tool.

Facilitation of admission measures

The second proposed amendment is intended to facilitate the granting of permanent residence to members of the family class and of the economic class (those selected on their ability to establish themselves economically). The economic class consists of the federal skilled worker class, the transitional federal skilled worker class, the Quebec skilled worker class, the provincial nominee class, the investor class, the entrepreneur class, the self-employed persons class, the transitional federal investor class, the transitional federal entrepreneur class and the transitional federal self-employed persons class. To be eligible under this measure, members of these classes will have to be residing temporarily in Canada as workers, students or visitors and have been issued a permanent resident visa from a visa office outside Canada.

What has changed

Language assessments

Section 79 is amended as follows:

• the marginal note is amended by replacing “20 points” with “24 points” to reflect the actual number of total points that can be awarded;
• paragraph 79(1)(b) is deleted to remove the option for applicants to submit evidence other than a third-party test; and
• subsection 79(2) is amended by replacing the French version of the language assessment tool, “Standards linguistiques canadiens 2002,” with “Niveaux de compétence linguistique canadiens 2006.”

Facilitation of admission measures

Foreign nationals residing in Canada who apply for a permanent resident visa outside of Canada in one of the classes described in paragraphs 70(2)(a) or (b) and who are, at the time of the issuance of the permanent resident visa, working, studying or visiting Canada are no longer required to report to a port of entry in order to be granted permanent residence.

The refugee classes described in paragraph 70(2)(c) will be excluded from this proposed amendment, as there is no instance in which these persons would be temporary residents due to the fact that they are granted permanent residence upon entry. Consequently, this proposed amendment, which seeks to facilitate the transition from temporary to permanent status, would not apply to these particular refugee classes.

Sections 74 and 85.4 and subsections 86(3) and (4), 87(7) and (8) of the IRPR are repealed.

• The individual sections on “obtaining status” are deleted and have been replaced by a new general provision (see below).
• The current requirements to have arranged employment, hold a work permit and have been working in for at least one year preceding the date of the application for permanent residence are eliminated.

A new section, 71.1, is created.

• It provides that any member of the classes in subsection 70(2) who is outside of becomes a permanent resident at a port of entry.
• It provides that a member of any of the classes in paragraphs 70(2)(a) or (b) who has legal temporary resident status in may seek to become a permanent resident at either a port of entry or an office of the Department in .

Subsection 50(1) and section 51 are amended to delete the reference to “port of entry” so that an applicant who holds a visa and is seeking to become a permanent resident, at either a port of entry or an office of the Department in Canada, is required to produce the same documentation and evidence at examination.

Alternatives

Language assessments

There is no alternative to a regulatory framework for this amendment. The present option of providing a written submission is currently written into the Regulations pursuant to paragraph 79(1)(b). This option was originally designed to accommodate native English or French speakers. However, experience has proven that a significant proportion of non-native speakers are choosing this option, thus raising issues of fairness and transparency in addition to contributing to processing delays. Consequently, to address these issues, an amendment to the Regulations is necessary.

A policy alternative to the proposed universal language testing is to provide a narrow exemption allowing for written submissions. However, research and analysis concluded that there is no clear and fully defensible definition of a native English or French speaker. Therefore, in the interest of fairness, the decision was made to treat all applicants the same by asking them to prove their language proficiency through a third-party test.

Facilitation of admission measures

Presently, the Regulations dictate that to be granted permanent residency, individuals must present themselves at a port of entry. Therefore, there is no alternative to a regulatory framework that would allow immigration officers at offices of the Department in Canada to examine applicants in these classes and grant them permanent residence.

Benefits and costs

Language assessments

This amendment will have the benefit of making the language assessment process more objective and transparent. When an applicant chooses to provide a written submission as proof of language proficiency, it is the responsibility of the visa officer to assess that submission and determine whether it provides evidence of the level of proficiency claimed by the applicant. Requiring third-party language tests means greater fairness, as all applicants will have their language proficiency expertly and uniformly determined. Furthermore, applicants will have a clear idea as to whether they would earn enough language points to meet the pass mark prior to submitting their application. This will also benefit the Department in terms of inventory management, as application refusal rates would likely decrease.

Additionally, streamlining the language assessment process will lead to more timely selection decisions and result in the more efficient use of resources in missions abroad, thereby reducing individual and, thus, aggregate processing times. This will ultimately improve client service. A survey of key overseas missions reveals that a significant number of federal skilled worker applicants do not provide sufficient proof of language ability and are consequently asked to provide third-party language tests. This means that it usually takes several months to determine final language points as visa officers wait for test results. Requiring the results of language tests up front would streamline the process and reduce paper costs for government. Language points could be determined within minutes, thereby eliminating the labour intensive initial assessment of the written submission and the subsequent back-and-forth communication between the applicant and the visa officer.

It is, however, important to note that this policy change will not be applied to the current inventory of applicants—to do so would require legislative change to implement a transitional provision. Service standards are currently under development. The estimated time frame for those standards to be completed and published is under development. When available, these service standards will be available to the public on our Web site at www.cic.gc.ca.

In terms of costs, individual applicants will bear the direct cost of third-party language testing. This will mean increased overall application costs for a small minority of applicants, specifically native English or French speakers, who previously would not have been required to submit a language test. The average cost of a language test is around $200.

Facilitation of admission measures

This measure will improve client service and minimize the burden placed on some applicants who do not reside near the U.S. border and would need to travel significant distances to a port of entry to be granted permanent resident status. It will also respond to concerns/requests by stakeholders as well as by provinces/territories who want to facilitate the granting of permanent residence to needed skilled workers in their jurisdictions.

As this initiative aims to improve existing procedures and not increase the number of foreign nationals being granted permanent residence to Canada, the number of admissions will remain the same but the workload will be distributed differently between ports of entry and offices of the Department in Canada. Costs associated with this process will be offset by application fees and funds will be redistributed internally, as necessary.

Consultation

Language assessments

Talks are underway with approved language testing organizations to ensure that they are prepared to respond to the increased demand for their services. Given that these testing organizations are private, for-profit organizations, it is anticipated that they will be responsive, given the adequate lead time.

CIC had undertaken a survey of missions abroad regarding potential considerations and impacts with the vast majority stating this policy would have a very positive impact on their operations. Ultimately, while some foreign nationals may object, this policy will improve overall client service and fairness by making the process more objective and transparent for all applicants demonstrating their official language proficiency.

Facilitation of admission measures

Provinces/territories and stakeholders, such as immigration lawyers and consultants, employers and immigrant associations, have been consulted on this issue and there is strong support from all parties. This measure is also in keeping with the Government’s commitments in Advantage Canada and Budget 2007 to facilitate the granting of permanent residence to foreign nationals with Canadian work experience.

Compliance and enforcement

Language assessments

All federal skilled worker applicants will have to provide the results of an approved third-party language test in order to be awarded language points. If an applicant chooses not to submit the results of a language test, they will not receive any language points. As CIC has provided the option of submitting the results of third-party languages tests for some time, compliance and enforcement measures are well established. Equivalencies have been fixed between test results and the benchmarks, and security safeguards are in place so that test results cannot be forged.

Facilitation of admission measures

CIC has developed a comprehensive operational plan to ease implementation of this measure. Operational systems changes are anticipated to be ready in time for the effective date. In order to manage expectations, the communications strategy will clearly articulate the population eligible for this facilitated process.

Gender-based analysis

Language assessments

As this measure is about providing evidence of language proficiency rather than the actual level of proficiency, the impact of this change is expected to be gender neutral.

Facilitation of admission measures

The elimination of the requirement to report to a port of entry to be granted permanent residence for applicants in these classes will have positive impacts overall.

Heidi Smith
Director
Permanent Resident Policy and Program Development Division
Immigration Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Telephone: 613-954-4214
Fax: 613-954-0850
Email: heidi.smith@cic.gc.ca