Law-Making Innovation in the Canadian and International Immigration Context: International Comparisons and Cautions for Canadians

Mario D. Bellissimo* Introduction

Just a few years ago Canada’s immigration system was seemingly broken and stifled by lengthy processing queues, inflexible core programs and overly bureaucratic measures that led to backlogs of nearly a million people. The aging population, expected to double to 9.3 million by 2030, poses real challenges to Canada’s long-term stability as the Old Age Security system will increase from $36.5 billion in 2010 to more than double at $108 billion by 2030.

Citizenship and Immigration Canada (“CIC”) is to be commended for beginning the modernization process and developing better measures to enhance integrity and compliance. But over the last few years the changes to our immigration system have been dizzying. The solutions are not simple, but fast and furious reform seems to be outpacing an overall cohesive vision moving forward. To facilitate this vision, and borrowing heavily from our international counterparts (particularly ), in the past five years the has introduced seven sets of Ministerial Instructions to reshape, redefine and reposition much of Canada’s immigration policy.

Although the priorities are laudable in a system in need of change and by a Minister and a Department who have not shied away from difficult challenges, the pace, consistency and most importantly the mode of many of the changes raises serious legal and practical questions as to the prioritization of administrative efficiency and the impact on the democratic and nation building process. To begin, I will look at the seven sets of Ministerial instructions.

Ministerial Instructions and the Response to the FSW Backlog

By 2008, the Canadian Federal Skilled Worker (“FSW”) program was facing a tremendous backlog. The number of applicants consistently exceeded program capacity by large measure, and in 2008, over 600,000 applicants were awaiting processing while this number continued to swell. This backlog led to an extreme delay between the time of applying and time of processing. Applicants put their lives on hold for years while awaiting a decision, and it became increasingly difficult to match applicants’ skills with current Canadian labour market needs. Despite enormous delays, the backlog continued to expand.

In response, the Immigration and Refugee Protection Act (“IPRA”) was amended and section 87.3 was created. This provision granted the Minister of Citizenship and Immigration (currently Minister Jason Kenney) broad authority to set processing quotas and priorities for different classes of applications in a given year by way of “Ministerial Instructions,” and summarily dispose of those that did not meet these criteria.1 It also deemed that any action performed pursuant to these Ministerial Instructions did “not constitute a decision not to issue the visa or other document, or grant the status or exemption,”2 thereby attempting to insulate these decisions from judicial review in the Federal Court of Canada.

1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, section 87.3(3) [in force from 18 June 2008 until 28 June 2012], section 3. 2 Immigration and Refugee Protection Act, S.C. 2001, c.27, section 87.3(5).

1

Ministerial Instructions to Date

Since the implementation of section 87.3 of the IRPA, there have been a total of seven numbered Ministerial Instructions issued, as well as two additional instructions providing guidance on specific topics.

In November 2008, the first Ministerial Instruction (“MI-1”) was issued. Pursuant to this instruction, applications in the FSW program would only be processed if the applicant had an arranged offer of employment in Canada (“AEO”), had experience in one of 38 listed occupations, or was legally residing in Canada as a temporary foreign worker or international student.3 MI-1 was effective as of 27 February 2008, meaning that applications received after this date which did not meet these revised assessment criteria would not be processed. Foreign nationals who had submitted applications prior to 27 February 2008 found themselves at the end of the processing queue if they did not have an AEO or employment credentials which fell under one of the listed categories. Furthermore, those who had submitted their applications after this date and did not meet the stated criteria were summarily dismissed.

In June 2010, Minister Kenney issued the second Ministerial Instructions (“MI-2”), which provided that an FSW application would only be processed if the applicant had an AEO or experience in one of 29 (as opposed to 38) listed occupations.4 A global cap on FSW applications was also introduced, as “a maximum of 20,000 Federal Skilled Worker applications, without an offer of arranged employment, will be considered each year.”5 As such, only applicants with an AEO were guaranteed processing.

In July 2011, the government decreased the global cap to 10,000, with a maximum of 500 per occupation, through a third set of Ministerial instructions (“MI-3”).6 The Federal Entrepreneur Class (“FEC”) was also paused by virtue of a temporary moratorium, and as such, no new applications were accepted after 1 July 2012.

Continuing to expand into the immigration regime, in November 2011, a fourth set of Ministerial Instructions (“MI-4”) temporarily paused new sponsorship applications for Parents and Grandparents for up to 24 months, and further created a new stream of eligible applications for international PhD students under the FSW program (capped at 1,000 applications per year).7

In December 2011, the “Super-Visa MI” was issued, which introduced the Parent and Grandparent Super Visa, a temporary resident multiple entry visa for up to 10 years allowing applicants to remain in Canada for up to 24 months time.8 The fifth Ministerial Instruction (“MI-5”) was introduced in June 2012. This instruction dispensed with the cap system altogether and announced that the FSW program and Federal Immigrant Investor Program (“IIP”) would be temporarily paused, excepting FSW applicants who had an existing AEO.9

3 Canada Gazette, Ministerial Instructions - Federal Skilled Workers, Vol. 142 No. 48, 29 November 2008. 4 Canada Gazette, Ministerial Instructions – Federal Skilled Workers, Canadian Experience Class, Immigrant Investor Program, Vol. 144, No. 26, 26 June 2010. 5 Ibid. 6 Canada Gazette, Ministerial Instructions – Federal Skilled Workers, Immigrant Investor Program, Entrepreneurs Vol. 145, No. 26, 25 June 2011 . 7 Canada Gazette, Ministerial Instructions – Parents and Grandparents, Federal Skilled Workers, Vol. 145, No. 45, 5 November 2011. 8 Canada Gazette, Ministerial Instructions Regarding the regarding the Parent and Grandparent Super Visa, Vol. – 14 July 2012. 9 Canada Gazette, Ministerial Instructions – Federal Skilled Workers, Immigrant Investor Program, Vol. 146, No. 26, 30 June 2012.

2

Also in June 2012, Ministerial powers were further solidified by virtue of the Protecting Canada’s Immigration System Act,10 which specifically clarified that Ministerial Instructions may apply in respect of “pending applications,” and further that the number of applications to be processed in a given year may “be set at zero.”11

What is more, on 29 June 2012, the Jobs, Growth, and Long-term Prosperity Act came into force. Initially introduced in Parliament under the 2012 omnibus Budget Bill (Bill C-38), the provisions of this Act spread into multiple Canadian legal domains. In the immigration context, this Act created section 87.4 of the IPRA, a provision which had the effect of unilaterally terminating all FSW applications submitted before 27 February 2008 which had not received a decision based on selection criteria before 29 March 2012.12 This amounted to a total of approximately 280,000 applicants. In this sense, section 87.4 of the IRPA removed the need for further Ministerial Instructions in managing the massive FSW backlog, as the backlog was unilaterally terminated by operation of law. Ongoing litigation regarding the validity of this legislative provision is currently before the Federal Court of Canada.

In July 2012, the “Protecting Vulnerable Workers MI” was issued, which aimed to protect workers from the risk of abuse and exploitation in sex trade related businesses. Officers were directed not to process work permit applications where there are reasonable grounds to suspect a risk of sexual exploitation (namely in strip clubs, escort services, and massage parlours). Further, foreign nationals would not be able to work in these industries by virtue of an open work permit.13

The sixth set of Ministerial Instructions (“MI-6”) was issued in January 2013. These instructions provided further guidance on the new Federal Skilled Trades Program (“FSTP”), including minimum language requirements, a program cap of 3,000 annually, and a total of 43 eligible occupations (with a sub-cap of 100 applications for certain occupations).14 MI-6 also provided that the prior pauses to FSW, FII, and FED programs remained in place.

On 30 March 2013, the final set Ministerial Instructions to date (“MI-7”) were issued. MI-7 introduced the Start-Up Visa Program, a pilot program in the Economic Class aimed at attracting innovators and entrepreneurs to the Canadian market.15

As can be gleaned from the above outline, Ministerial Instructions have led to major changes in the Canadian immigration regime. Various immigration categories have been paused, reformulated, capped, and fundamentally transformed. What is particularly concerning about this form of innovative law-making is the extreme power granted to the Minister to unilaterally decide how, when, and to what degree, applications are to be processed – if at all. This amounts to an extreme accrual of power within the Ministry, which is of course not subjected to the same degree of democratic scrutiny. Primarily, there is no opportunity for Parliament to review and amend these instructions since, pursuant to section 93 of the IRPA, such instructions “are not statutory instruments for the purposes of the Statutory Instrument Act.”16 Judicial review of actions taken under these guidelines is also precluded by virtue of the deeming provision in section 87.3(5) of the IRPA.

10 Protecting Canada’s Immigration System Act, S.C. 2012, c.17 (assented to 18 June 2012). 11 Immigration and Refugee Protection Act, S.C. 2001, c.27, sections 87.3(3.1) & 87.3(2). 12 Immigration and Refugee Protection Act, S.C. 2001, c.27, section 87.4. 13 Canada Gazette, Ministerial Instructions protecting vulnerable foreign workers from the risk of abuse and exploitation in sex trade related business, Vol. 146 No. 28, 14 July 2012. 14 Canada Gazette, Ministerial Instructions – Federal Skilled Trades Program, Vol. 146, No. 52, 29 December 2012. 15 Canada Gazette, Ministerial Instructions – Start-Up Visa Program, Vol. 147, No. 13, March 2013. 16 Immigration and Refugee Protection Act, S.C. 2001, c.27, section 93.

3

Not surprisingly, Canada is not the only common law jurisdiction which has seen a broadening of ministerial and enforcement powers in the immigration context by way innovative law- making in recent years. A review of specific developments in Australia, the United Kingdom, and the United States reveals various immigration measures which parallel the current Canadian experience in a number of ways. The interesting question becomes what we can learn from our international common law counterparts about these law-making mechanisms. In the end, the Canadian experience is not out of line with those in the international community, as a general theme of increasingly restrictive immigration policies emerges. What is of particular concern is that the means used to implement these policies reiterates the need to preserve the delicate balance of our democratic functions. How this tenuous balance will be maintained in Canada presents one of the greatest challenges for immigration practitioners to date.

Australia

The IRPA and the Australian Migration Act: Similar Approaches

Much in line with the Canadian experience, the Australian skilled worker general migration program has experienced a significant backlog in recent years. To address this application surplus, the Australian Migration Act, 1958 (“Migration Act”) grants the Minister for Immigration and Citizenship sweeping discretionary powers in setting processing priorities for these visa applications.17 Specifically, under section 51, the Minister is permitted to consider and dispose of visa applications “in such an order as he or she considers appropriate.” As then- Minister Chris Evans explained in a radio interview in November 2009:

What people do is they apply for permanent migration to Australia, and they’re assessed, and we determine based on the needs of Australia, and our priorities, who gains permanent migration. We operate a scheme in support of the national interest, so people may well be facing longer waits in some occupations, and of course others are getting quicker treatment if they’re in occupations which are necessary for the growth of our economy.18

The Australian Minister also has the authority to issue a “legislative instrument”19 dictating that certain occupations or types of applications receive priority processing regardless of the date they have been received. Section 39 of the Migration Act further allows the Minister to unilaterally restrict the maximum number of visas that will be granted in a particular immigration class for a financial year. Any outstanding applications are essentially erased, by virtue of what is called the “cap and cease provision.”20 The Department for Immigration and Citizenship explains:

17 Migration Act 1958, section 51 reads: Order of Consideration (1) The Minister may consider and dispose of applications for visas in such an order as he or she considers appropriate. (2) The fact that an application has not yet been considered or disposed of although an application that was made later has been considered or disposed of does not mean that the consideration or disposal of the earlier application is unreasonably delayed. 18 Chris Evans (Minister for Citizenship and Immigration), Immigration Minister Responds to Backlog Concerns, Radio National; National Interest Program, 13 November 2009. 19 Australian Government, ComLaw: What is It defines a legislative instrument as “laws on matters of detail made by a person or body authorized to do so by an Act of Parliament.” 20 Migration Act 1958, section 39.

4

[...] when a cap has been reached for a particular visa class, work on all applications which have not been processed to decision stops and the files are closed. These applications are treated as if they have not been submitted.21

It was under this clause that 20,000 applications made under the offshore general skilled migrant visa class were terminated by ministerial fiat in February 2010.22

There are several important considerations stemming from the Australian regime. First, because section 39(b) of the Migration Act deems the application to never have existed, the imposition of a cap is immune from judicial challenge. Clearly an applicant who has not received a formal decision by the Minister or his delegates has no recourse to challenge this.23 What is more, pursuant to section 44 of the Legislative Instruments Act, 200324 the legislative instrument which imposes the cap is not subject to “disallowance,” meaning it does not have to be presented to Parliament, debated on its merits and possibly subjected to a veto prior to it taking effect.25 Consequently, neither the judiciary nor the legislature is truly able to fulfill its stated role of holding the executive accountable for its exercise of power in this regard. This is not unlike Canada’s current system, under which Ministerial Instructions, and decisions to terminate or return an application made pursuant to these Instructions, are not subject to legislative debate and judicial review.

The Visa Capping Bill

In May 2010, the Australian government introduced the Migration Amendment (Visa Capping) Bill 2010 (“Visa Capping Bill”). According to the accompanying explanatory notes, this proposed legislation would allow the Minister to use a non-disallowable legislative instrument26 to:

[...] cap the number of visas of a particular visa class, a visa subclass, or a stream within a visa subclass, that may be granted in a financial year. The Minister may, by legislative instrument, determine that the cap applies only to applicants with certain characteristics, or whose application has certain characteristics. These characteristics may include, but are not limited to, the occupation nominated by the applicant who seeks to satisfy the primary criteria for the grant of the visa, or the date of the application (which may include the date in the past). The characteristics will be objective and will relate to information that is provided to the Department when an application for a visa is made.27

21 Australian Government (Department of Immigration and Citizenship), Fact Sheet 21 – Managing the Migration Program. 22 Brendan O’Connor (Minister for Citizenship and Immigration), Changes to Australia’s Skilled Migration Program, media release, Canberra, 8 February 2010. 23 Migration Act 1958, section 478 stipulates that only person who are subject to a ‘decision’ under this Act are permitted to make an application for judicial review. 24 Legislative Instruments Act 2003, section 44(2) states that section 42 does not apply in relation to a legislative instrument, or a provision of a legislative instrument, that is included in the table below unless the instrument of provision is subject to disallowance under its enabling legislation or by some means of some other Act (Item 26 of the table contained in section 44 expressly excludes legislative instruments under Part 2 of the Migration Act 1958). 25 Legislative Instrument Act 2003, section 42 proscribes the process for introducing a legislative instrument to Parliament (tabling) and also stipulates that the House then has 15 sitting days to ‘disallow’ or veto the motion, failing which the instrument will have legal effect at the end of this period. 26 Migration Amendment (Visa Capping) Bill 2010, Schedule 1 – Amendments, at p. 1 states that the amendment relating to Visa Capping would have been inserted “after subdivision AH of Division 3 of Part 2” thereby bringing it under section 44 of the Legislative Instrument Act, 2003. 27 Parliament of the Commonwealth of Australia (House of Representatives), Migration Amendment (Visa Capping) Bill 2010- Explanatory Memorandum, 2008-2009-2010 at p. 7.

5

Only protection visas (granted to successful refugee claimants and dependents of applicants who were already permanent residents) would be shielded from the Minister’s unilateral ability to withdraw applications.28 Secretary for Multicultural Affairs and Settlement Services, Laurie Ferguson, stated that this legislative change would “end the ongoing uncertainty faced by general skilled migration applicants whose applications are unlikely to be finalized because their skills are not in demand.”29

The Visa Capping Bill would grant the Minister unfettered discretionary power to refuse classes of applicants on whatever grounds deemed appropriate. The particularly broad language of this proposed legislation is concerning, as the definition of what would constitute “objective criteria” according to which a pool of applications could be terminated leads to endless possibilities. Further, since use of this authority would be a non-decision accomplished through a non- disallowable instrument, there would again be no opportunity for Parliament or the judiciary to challenge any arbitrary deployment of this power.

Favourably for applicants, Parliament dissolved before the Visa Capping Bill could be passed by the Australian Senate, rendering it lapsed.30 The current minority Labour government has since declined to re-introduce the Bill and instead appears to be satisfied with the existing powers. Nonetheless, the extremely wide parameters of powers which would have been accorded under the Visa Capping Bill are of concern and warrant consideration.

United Kingdom

Curtailing Deportation and Article 8 of the ECHR

In 1998, the U.K. Parliament passed the Human Rights Act, 1998, which incorporated the provisions of the European Convention on Human Rights (“ECHR”) into the country’s domestic legal system.31 This required the British judiciary to reconcile the individual rights established by the ECHR with laws enacted by the British Parliament. In the immigration context, this entails balancing the rights contained in Article 8 of the ECHR32 (specifically: the right to family life), with immigration legislation which permits the removal of foreign nationals.33

The British judiciary have adopted the Canadian approach to this issue (as established in R. v. Oakes), in that any abrogation of an individual’s human rights must be proportionate and rationally connected to the public interest served by this infringement.34 The Home Office has

28 Parliament of the Commonwealth of Australia (House of Representatives), Migration Amendment (Visa Capping) Bill 2010- Explanatory Memorandum, 2008-2009-2010 at p. 9 (para. 28, 46). 29 Laurie Ferguson ( for Multicultural Affairs and Settlement Services), Speech to the House of Representatives on Migration Amendment (Visa Capping) Bill 2010, 26 May 2010. 30 Parliament of Australia, Migration Amendment (Visa Capping) Bill 2010 Homepage. 31 Human Rights Act 1998, c. 42, Introduction. 32 Article 8 of the European Convention on Human Rights reads: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 33 For example, the Borders Act 2007, section 32 mandates the deportation of foreign nationals if they are sentenced to 12 months or more imprisonment; the Immigration Act 1971, section 2A allows the to deprive someone of his or her “right of abode.” 34 Huang v. Secretary of State for the Home Department; Kashmiri v. Secretary of State for the Home Department, 2007 UKHL 11, at para. 19.

6 definitively stated: “the key test that both the decision-maker and the Courts apply in assessing the A8 [Article 8] compatibility of an immigration decision is whether the decision is proportionate.35

While it has traditionally been the role of the Courts to complete this balancing, there has been increasing outrage in the U.K. regarding alleged “dozens of cases in which foreign criminals, including killers and rapists, have abused the right to family life to stay in Britain.”36 The British Home Office Secretary, Theresa May,37 expressed strong criticism in a very recent article, wherein she attacked the judiciary for upholding Article 8 and refusing to order the deportation of foreign nationals:

[...] some of our judges appear to have got it into their heads that Article Eight of the European Convention on Human Rights, the ‘right to family life’ is an absolute, unqualified right. This means that if a foreign criminal can show that he has a family in this country, they take the view he has a right to remain here, regardless of the gravity of offences.38

The Home Office has criticized the lack of concrete rules to guide the Courts in conducting this balancing.39 Home Secretary May stated that Parliament was obliged to “make its views clear on this issue, so that they [the judiciary] can take that into account when examining cases.”40 To this end, Home Secretary May introduced a motion in the House of Commons on 19 June 2012 amending the Immigration Rules to establish criteria related to criminal history and familial relationships which must be met before a foreign national subject to deportation would be eligible to claim relief under Article 8.41 Her intention was to explicitly define:

[...] how the balance should be struck between the public interest and individual rights, taking into account relevant case law, and thereby provide for a consistent and fair decision-making process.42

The Immigration Rules

This was an atypical method for introducing such changes into the British immigration system, as the Immigration Rules occupy a subordinate position within the British legal system.43 Essentially, they are not ‘law’ in the strict sense as they neither originate from Parliament nor need Parliament’s assent before taking effect.44 In the decisions of Huang and Kashmiri, the House of Lords concluded that “it is a premise of the statutory scheme enacted by parliament that an applicant may fail to qualify under the Rules and yet may have a valid claim by virtue of article 8.”45 Consequently, while the judiciary can choose to take notice of these amendments to

35 Statement by the Home Office, Immigration Rules on Family and Private Life (HC 194), 13 June 2012. 36 The Telegraph, “Anger as Theresa May resist human rights clampdown,” 17 March 2013. Also see the Sunday Telegraph’s “End the Human Rights Farce” campaign for further examples of opposition to ECHR implementation. 37 The Home Office is the department responsible for immigration, drug policy, crime and counter terrorism. 38 Theresa May, Mail Online, 17 February 2013. 39 Statement by the Home Office, Immigration Rules on Family and Private Life (HC 194), p. 3, at para. 11. 40 House of Commons Hansard, 19 June 2012, column 761. 41 Immigration Rules, section 398 – 399. 42 Statement by the Home Office, Immigration Rules on Family and Private Life (HC 194), p. 4 at para. 20. 43 R. (on application of BAPIO Action Ltd and another) v. Secretary of State for the Home Department and another, [2007] EWCA Civ 1139, at para. 29. 44 Immigration Act 1971, section 3(2); see also R v. Secretary of State for the Home Department, ex parte Hosenball [1977] 3 All ER 452. 45 Huang v. Secretary of State for the Home Department; Kashmiri v. Secretary of State for the Home Department, 2007 UKHL 11 at para. 17.

7 the Immigration Rules, these Rules do not overcome prior jurisprudence on this issue or the rights guaranteed under Article 8.

Despite this subordinate position of the Immigration Rules, Home Secretary May went a step further and requested that the House adopt the motion that: “conditions for migrants to enter or remain in the UK on the basis of their family or private life should be those contained in the Immigration Rules.”46 After the House resolved in favour of this motion, Home Secretary May concluded: “today’s motion provides the courts with the statement and endorsement from Parliament that they have said is needed.”47 It appears from this statement that Home Secretary May was attempting to fulfill the “active debate” requirement,48 in order to transform what were essentially unilateral ministerial directives into a general consensus on policy.

Regardless of Home Secretary May’s attempts, recent decisions confirm that the motion of support in Parliament cannot override legislation or direction from the Courts.49 The House of Lords also criticized such form of “debate” stating that the motion, “sought explicit endorsement of what the current government has suggested, not a wide-ranging debate seeking the consensus of the House on what the Rules should be and such a debate provides no means for the House to amend even a minor aspect of these proposals.”50

As such, it appears that democratic processes were largely maintained in the end. Had the Immigration Rules become binding law, however, questions would surely have arisen as to the parameters of judicial independence, as these Rules are clearly not to be used as a mechanism to usurp the intention of the Courts and the House of Lords. What remains concerning is that a figure as central as the Home Secretary attempted to broaden the ministerial power in this manner, and continues to frame the affirmation of the motion in the House as a sign of unilateral support. She recently wrote: “after a vigorous debate, the Common adopted the changes unanimously. There was no division because there was no one in Commons who opposed them.”51 She also remains highly critical of judicial discretion in this context:

[...] the law in this country is made by the elected representatives of the people in Parliament. And our democracy is subverted when judges decide to take on that role for themselves.52

The vote in the House coupled with Home Secretary May’s comments has enhanced the perceived legitimacy of her proposals, particularly among those not knowledgeable in legal procedure and democratic processes. Of concern, this may prove useful in pressuring May’s coalition colleagues into ultimately adopting primary legislation that mirrors its contents in the future.

46 House of Commons Hansard, 19 June 2012 column 760. 47 House of Commons Hansard, 19 June 2012 column 763. 48 Huang v. Secretary of State for the Home Department; Kashmiri v. Secretary of State for the Home Department, 2007 UKHL provides that Parliament may direct the Court as to the proper interpretation of Article 8 provided that such direction represents the general consensus of Parliament following active debate on the matter (at para. 17). 49 The Secretary of State for the Home Department and Uchenna Eucharia Izuazu, [2013] UKUT 00045 (IAC) at para. 30. Also see MF and The Secretary of State for the Home Department, UKUT 00393 (IAC) at para. 48, and The Secretary of State for the Home Department and Uchenna Eucharia Izuazu, [2013] UKUT 00045 (IAC) at para. 30. 50 House of Lords, Statement of Changes in Immigration Rules (HC 194). 51 Theresa May, Mail Online, 17 February 2013. 52 Theresa May, Mail Online, 17 February 2013.

8

United States

The Failure of the DREAM Act & Prosecutorial Discretion

Immigration reform in the United States is a fraught and divisive topic. Despite political tensions, there has been consistent bipartisan support for measures which would grant legal status to certain foreign nationals who initially entered the United States as minors. Legislation to this effect (The Development, Relief and Education for Alien Minors Act, or “DREAM Act”53), was first introduced into the Senate in August 2001, but this and many subsequent attempts were unsuccessful.54

In 2011, the United States Department of Homeland Security took the initiative on this matter and John Morton, the Director of U.S. Immigration and Customs Enforcement, sent a memorandum to all employees under his authority. It instructed these officers to exercise “prosecutorial discretion,” which was defined as: “the authority of an agency charged with enforcing a law to decide to what degree to enforce the law against a particular individual”55 when carrying out their enforcement duties.56 Director Morton described that this initiative was required in order to prioritize its efforts in the face of overwhelming administrative violations.57

The United States Supreme Court has consistently affirmed that this power of prosecutorial discretion is within the exclusive ambit of an executive agency,58 and these operational decisions are immune from judicial review:

[an] agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.59

Morton’s memorandum proceeded to list factors which would attract favourable prosecutorial discretion. These included the criteria listed in the various iterations of the DREAM Act, such as initial entry to the U.S. before the age of 15, continuous physical presence in the U.S. in the last five years, no serious criminal record, and either admittance into a program of higher education in the U.S. or possession of a general education development certificate from the U.S. This list further expanded the benefit of prosecutorial discretion to other vulnerable foreign nationals, such as pregnant women, the elderly, the mentally ill, and victims of domestic violence or other serious crimes.60

53 The most recent version is: Development, Relief and Education for Alien Minors Act of 2011, s.925IS. 54 Development, Relief, and Education for Alien Minors Act s.1291, 107tth Cong. (2001); Development, Relief, and Education for Alien Minors Act of 2003 s.1545, 108th Cong. (2003), Development, Relief, and Education for Alien Minors Act of 2005 s. 2075, 109th Cong. (2005); Development, Relief, and Education for Alien Minors Act of 2007 s. 2205, 110th Cong. (2007); Development, Relief, and Education for Alien Minors Act of 2010 s. 3992, 111th Cong. (2010); Development, Relief and Education for Alien Minors Act of 2011 s.952IS, 112th Cong. (2011). 55 John Morton (Director, U.S. Immigration and Customs Enforcement), Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, 17 June 2011 at p. 2. 56 Ibid, at p. 1. 57 Ibid, at p. 2. 58 5 U.S.C. 101 lists the Department of Homeland Security as an executive department. 59 Heckler, Secretary of Health and Human Services v. Chaney et al., 470 U.S 821, (1985) at para. 28, 31. Also see Massachusetts, et. al., Petitioners v. Environmental Protection Agency et al. 549 U.S. 497 (2007) at para. 12. 60 Supra, note 54, at p.5.

9

While this memorandum did not explicitly direct immigration officials to refrain from initiating removal proceedings against these foreign nationals, it advised that this class of individuals warranted particular care and consideration.61

Mandatory Direction by Memorandum

In June 2012, Janet Napolitano, the Secretary of Homeland Security, issued a second memorandum which expressly directed immigration officials to exercise prosecutorial discretion regarding foreign nationals described in the 2011 DREAM Act, and “defer action” by not commencing or discontinuing removal proceedings against them.62 This second memorandum included clear mandatory language, leaving no real room for “discretion” on the part of officers one way or another.

Importantly, because these memoranda do not rise to the level of primary legislation nor regulations, they are not subject to Congressional approval, as outlined in section 801 of 5 U.S.C.63 The proviso included with Janet Napolitano’s memorandum is careful to make clear that her memo “sets forth policy for the exercise of discretion within the framework of the existing law” but does not confer substantive rights, which can only be done by Congress acting through its legislative authority. 64 However, because the term “prosecutorial discretion” is used, the Department of Homeland Security has essentially managed to create an administrative practice which requires Immigration Officers to disregard applicable law. As stated, the DREAM Act was categorically rejected by Congress, and yet its effects have been adopted into Napolitano’s mandatory memorandum.

What is more, the enormous scale and automatic application of this direction is a far cry from common uses of prosecutorial discretion. This would no longer amount to a matter of an individual immigration officer making an exception in a deserving case, but instead a generalized immigration policy automatically applying to an estimated 800,000 to 1.4 million foreign nationals.65

The question of executive trespass onto Congressional jurisdiction also cannot be ignored. As the legislative history of the DREAM Act demonstrates, there has been ample opportunity to enact a Bill that would have the same effect as Janet Napolitano’s guidance memo. Yet, for various reasons, Congress has repeatedly declined to avail themselves of this opportunity. As such, the guidance memo is essentially overriding the decision of Congress. This is compounded by the fact that the instruction contained in the memorandum is not subject to either Congressional oversight or judicial review, thereby removing any ability to challenge or amend what is essentially an order from the executive.

Innovative Law Making Does Not Always Equal Nation Building

The Canadian government’s choice to implement major changes to immigration policy by way of Ministerial Instructions is in keeping with innovative law-making measures seen in other jurisdictions. A common theme throughout these common law countries includes, for the most

61 Ibid. 62 Janet Napolitano (Secretary of Homeland Security), Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, 15 June 2012 at p. 2-3. 63 5 U.S.C. 801. 64 Janet Napolitano (Secretary of Homeland Security), Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children, 15 June 2012 at p. 3. 65 New York Times, Obama to Permit Young Migrants to Remain in U.S., 15 June 2012; The Pew Research Hispanic Center, Up to 1.4 Million Unauthorized Immigrants Could Benefit from New Deportation Policy, 15 June 2012.

10 part, increasingly restrictive immigration policies carried out by novel, expansive, and – at times – somewhat questionable procedures. While these procedural tactics do not always come to fruition, what remains concerning is that certain efforts to transform immigration policies seeks to evade the scrutiny of our democratic functions. The import of this approach cannot be understated and the consequences are significant.

For one, this can destabilize the rule of law and fundamental values and principles. For example, Ministerial powers in the Australian context are currently broader than in the Canadian context. Although the Australian Visa Capping Bill did not pass, such sweeping language will likely reappear before the Australian Parliament in due time. To date, Ministerial Instructions in Canada have been limited to turning on factors such as specified occupations, possession of an AEO, and date of application. However, this is not to say that an increasing expansion of powers is not forthcoming, as section 87.3(2) of the IPRA only limits that the Minister must consider what “will best support the attainment of the immigration goals established by the Government of Canada.”

In the discussion of Article 8 of the ECHR for the United Kingdom, more restrictive immigration policy is also favoured at the expense of proper procedure. The Home Secretary’s Office went as far as to imply that changes to the Immigration Rules were binding on the judiciary – despite jurisprudence to the contrary, and despite the fact that the content of these Rules had not been subjected to legislative process. In the case of the American DREAM Act and prosecutorial discretion, it was less restrictive immigration policy which was favoured, aiming to benefit deserving foreign nationals. Again, however, the Homeland Security Memoranda outlined were issued in contradiction to law on point.

Certainly immigration law is not the only legal realm in which the executive attempts to push the boundaries of their power in creative ways. More particular to immigration, however, is the impact that these procedural loopholes can have on thousands of foreign nationals seeking to build a life in Canada. While the checks and balances of democracy are imperative in every legal field, the need for proper legislative review and debate and careful judicial scrutiny is increasingly essential, given the enormous personal and societal implications at play in the immigration context.

One of Canada’s main goals, like all countries, is to increase our global competitiveness surrounding immigration, and a steady increase in immigrants who will contribute to our overall social as well as economic wellbeing is crucial to that objective. Absent the perceived legislative shackles, the exclusive focus of Ministerial Instructions has been economic; an economic focus at the cost of a more balanced immigration program.

For all classes of immigrants, integration into Canadian communities is vital. This requires settlement agencies, family reunification, and also addressing persistent discrimination within the work force. It is not enough to bring immigrants to Canada, we need to retain them. This goes beyond ensuring that they have employment opportunities. For many immigrants, the ability to sponsor one’s family to Canada is equally as important to their paycheque when gauging their establishment and satisfaction. This is particularly true outside of our largest cities. Yet in 2010, approximately only 17% of immigration applications received were family class migrants, as opposed to 71% in economic categories. This compares to 23% and 66.7% respectively in 2007, and continues a down-trending of family class numbers over the past several years. At the front end these applicants may be assessed primarily as economic units, but on the back end they are people who need love, support, and a fair chance to thrive in a country with a national immigration and integration plan that considers not only their work place but the country in which they will live.

11

Thus our lens must change. We must first closely and carefully study social as well as economic fusion and functionality across all categories. Second, the family class needs to be thought of as more than a “non-economic” category, and we must recognize the impact that economic migration does have on our nation building. Third, increasing the overall immigration numbers, the impact of resettlement, inclusion of siblings in the family class category with economic conditions, caps and queues, and reweighting of the immigration categories should all be explored. Ultimately, the time is right to proactively build economically and culturally, rather than to react to current circumstances by relying heavily upon tired myopic compartmentalizations of immigrant applicants, categories, and the sharp and shinny new tool of “Ministerial Instructions” that can bypass this very critical input, consensus building, measured scrutiny and worse yet, the rule of law.

*Mario D. Bellissimo is a graduate of Osgoode Hall Law School and the founder of Bellissimo Law Group in Toronto, Ontario. Mr. Bellissimo is a Certified Specialist in Citizenship and Immigration Law and Refugee Protection. His practice is focused primarily on litigation with an emphasis on immigration inadmissibility. Mr. Bellissimo has appeared before all levels of immigration tribunals and courts including the Supreme Court of Canada. Mr. Bellissimo acts on a pro bono basis as National Immigration Law and Policy Advisor for COSTI Immigration Resettlement Services and serves on multiple stakeholder committees as Vice-Chair of the Canadian Bar Association’s National Immigration Section. Mr. Bellissimo is the co-author of Immigration Criminality and Inadmissibility and is the Co-Editor-in-Chief of ImmQuest and the Immigration Law Reporter. The author would like to thank Joanna Mennie, Barrister & Solicitor, Bellissimo Law Group, for her invaluable contribution to this article.

12