ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations

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Vol. 144, No. 50 — December 11, 2010

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue: Under the Immigration and Refugee Protection Regulations (Regulations), federal skilled worker (FSW), Canadian experience class (CEC), and investor, self-employed and entrepreneur class applicants must support their claimed official language proficiency by either submitting the results of a designated third-party language test (considered conclusive evidence), or by providing “other evidence in writing.” The option to provide other written evidence was originally intended for use by a minority of applicants with evident high proficiency, but in practice has been widely used by those whose proficiency can only reliably be assessed through objective language testing. At some visa offices abroad, 50%–100% of written submissions are ultimately deemed insufficient evidence for the assessment of language proficiency, resulting in substantial delays, processing inefficiencies, and higher rates of refusal than would be the case if conclusive evidence had been submitted with the application. The evaluation of written submissions by visa officers, who are not language experts, has overall introduced subjectivity, unreliability and inefficiency into the assessment of immigrant applications.

Description: An amendment is proposed to remove reference to the option to provide other written evidence from subsection 79(1) and paragraph 87.1(2)(b) of the Regulations. The amendment would have the effect of requiring all FSW and CEC principal applicants to submit a valid test result from a designated third-party language testing agency with their application. The amendment would also require the same from business immigrants (the investor, self-employed and entrepreneur classes), as they are currently required to comply with section 79 of the Regulations as stipulated under paragraph 102(1)(c).

Cost-benefit statement: The proposed regulatory amendment would benefit applicants through increased transparency and enhanced reliability in the assessment of their immigrant applications. The measure would also improve and streamline the processing of applications, leading to shortened wait times. The Department of Citizenship and Immigration (CIC) would further benefit from processing efficiencies from the mandatory test through streamlined determination of eligibility for processing, and through substantial efficiencies in assessing applications during the visa office processing stage.

Business and consumer impacts: Due to widespread inadequacies in the majority of written submissions, most applicants who initially submitted written evidence were eventually required to submit a valid language test result in order to be assessed for language proficiency under the requirements of the programs. As a result, the proposed regulatory amendment would principally impact future applicants whose proficiency in one of Canada’s official languages could have been satisfactorily demonstrated using other evidence in writing. Those applicants would instead be required to undertake the test (estimated to be at most 17% of FSW and CEC applicants).

Issue

The Immigration and Refugee Protection Regulations (Regulations) state that federal skilled worker (FSW), Canadian experience class (CEC), and investor, self-employed and entrepreneur class principal applicants must demonstrate their language proficiency either by submitting the results of a designated third-party language test or by providing other evidence in writing.

The option to provide other evidence in writing was originally intended only for those whose proficiency in an official language of Canada is patently evident. In practice, the option has been widely used by applicants whose proficiency is not patently evident. In some visa offices abroad, between 50% and 100% of applications are supported by written submissions provided by non-native English or French speakers, whose true proficiency cannot be estimated based on the written evidence provided. In all such cases, the proficiency of the applicant could more reliably be assessed by an independent language testing organization. Even for those with high proficiency in English or French as native speakers, or as a result of their language of education, written submissions have proven unreliable in quality and in outcome, given that they must be assessed by visa officers who are not language specialists.

Overall, the option to provide written submissions has introduced significant challenges in administering the FSW and CEC programs, including subjective and unreliable self- and visa officer assessment, litigation which could otherwise be avoided through the use of objective tests, substantial processing delays and inefficiencies, and difficulties in the identification of fraud and in verifying the authorship of the submission. It is not uncommon for visa offices to receive several written submissions that are substantially the same in content and wording, with only the personal details altered by each applicant. Unlike designated language testing, written submissions do not allow for the reliable assessment of speaking, listening and reading proficiencies.

Objectives

The objective of the regulatory proposal is to enhance the reliability, transparency and efficiency with which language requirements are assessed during the processing of FSW, CEC and Business Immigrant applications. Mandatory language testing would support the goals of the immigration program through the selection of economic class applicants who have been more reliably assessed for their proficiency in one or both of Canada’s official languages. It would also support timely decision-making on the eligibility of applications, and result in faster processing of applications through expedited assessment at the visa office processing stage.

Description

The Regulations would be amended as follows:

  • Paragraph 79(1)(b) would be repealed to remove the option to provide other evidence in writing; and
  • All references to the option to provide other evidence in writing in paragraph 87.1(2)(b) would be removed through the deletion of “or have provided other evidence in writing of their proficiency in either language,” from the paragraph.

Two technical amendments to the Regulations are proposed as follows:

  • The marginal note to subsection 79(1) would be amended to delete an incorrect reference to the points to be awarded (20), and revised to more accurately reflect the content of the provision (official language proficiency); and
  • The correct total number of points to be awarded (24) would be moved to the marginal note of subsection 79(2), where the awarding of points is outlined in the provision.

Regulatory and non-regulatory options considered

In light of the challenges outlined above, in 2008, the Department proceeded with pre-publication of a regulatory amendment (Canada Gazette, Part I, Vol. 142, No. 16, April 19, 2008) to eliminate paragraph 79(1)(b) of the Regulations, effectively making mandatory the requirement to provide the results of a test from a designated language testing agency.

The 2008 regulatory proposal was substantively the same as the present proposal, and elicited two submissions from public stakeholders; one broadly supportive of the mandatory requirement, the other opposing. The concern of the opposing stakeholder emphasized the lack of a provision for exempting native English and French speaking applicants (especially nationals of countries such as the United States, United Kingdom or France).

In response, the Department suspended the regulatory proposal while it further examined the issue of whether exemptions would have merit, and if so, on what basis an exemption could be granted. The result of that analysis was that although the provision of an exemption may have merit, the wide range of criteria examined for eligibility for an exemption (including, but not limited to, country of citizenship, self-reported mother tongue, language of education, literacy rates, country of birth, country of residence) were all considered unreliable proxies for proficiency in an official language of Canada. Furthermore, in all such cases, proficiency would be assumed rather than evidenced, the latter currently being required by the Regulations. The various exemption options considered, including those in use by other immigrant-receiving nations, were deemed impracticable in the Canadian context, including in relation to equality rights as provided for in the Canadian Charter of Rights and Freedoms, and could also undermine the transparency and consistency goals of our immigration program.

Due to these concerns, non-regulatory options were instituted while the Department prepared to proceed with a second regulatory proposal. In April 2010, CIC utilized existing authority under the Regulations to instruct applicants to submit either written evidence or the results of an approved test at the time of application, encouraging them to choose the latter option (as the only evidence deemed conclusive in the Regulations). Under this policy, applicants who opted to submit written evidence would not be permitted to submit subsequent test evidence as proof of language proficiency once the application has entered processing. This was intended to alleviate the significant effort that went into assessing written submissions, which had high rates of rejection and resulted in further processing delays while the applicant was given the opportunity to submit conclusive evidence in the form of a test result. It was also intended to encourage a greater number of applicants to submit test results in the first instance, as the preferred and conclusive means for assessing the language requirement.

However, in order to obtain the efficiencies needed to deliver timely decisions on application eligibility, and to ensure reliable and transparent final selection decisions for all, the Department recognized the need to make the designated language testing option mandatory. On June 26, 2010, the Minister of Citizenship, Immigration and Multiculturalism used his authority under the Immigration and Refugee Protection Act (IRPA) to issue Ministerial Instructions, which included a processing directive requiring FSW and CEC applicants to submit a valid language test result at the time of their application for permanent residence in Canada in order for their application to be eligible for processing. That instruction applies to all applications received from June 26, 2010, onward. The Department is now proposing a regulatory amendment consistent with that processing directive, to reflect the permanent direction the Department has taken toward mandatory language testing in support of language proficiency assessments.

Benefits and costs

Benefits

Applicants benefit from language testing by knowing in advance of applying how their language proficiency will be assessed; FSW applicants can determine in advance how many points they are likely to be awarded for language, while CEC applicants can determine whether or not they are likely to pass or fail based on the established language thresholds of that program. Benefits to the wider community of clients include; increased transparency and fairness in selection decisions, improved and streamlined processing of applications, and improved eligibility and visa office processing stages. Timelier decision-making is a key commitment of the Action Plan for Faster Immigration and of ongoing concern to immigration applicants and their representatives.

The benefits to the Department include more reliable and defensible assessments of language proficiency, simplified fraud detection and improved program integrity, substantial processing efficiencies for visa offices and reduced application processing times, decreased administrative costs (due to reduced clerical and file retention costs), and improved confidence that economic class immigration supports program goals.

Costs

The cost to clients of the proposed regulatory action is limited to the time and cost of taking the language test. For most applicants, this would require one day and approximately $200–$300, as well as preparatory time, which would vary according to the applicant’s official language proficiency and their goals for taking the test. Most clients would bear these costs equally but some clients may need to travel long distances to take the test, incurring transportation and/or hospitality costs. Others may need to take unpaid time from work or arrange care for their dependents in order to take the test.

The cost to the Government of Canada of the proposed action is limited to costs associated with updating references to the relevant Regulations in operational memoranda, training manuals and application forms.

Rationale

Evidence of language proficiency is used by visa officers to assess the number of points an applicant should receive for language proficiency (for FSW), or to assess whether an applicant passes or fails based on an established language threshold (for CEC). The evidence provided by applicants is central in supporting immigration decisions. From the applicant’s perspective, it is essential that there be as much consistency and reliability as possible in making decisions that affect whether or not their application for permanent residence is accepted or refused. From an administrative perspective it is important that such decisions be clearly evidenced and defensible, and that operational efficiencies be pursued wherever possible and reasonable.

When the Regulations were drafted and subsequently published in 2002, it was envisioned by the Department of Citizenship and Immigration that the vast majority of applicants should demonstrate their official language proficiency with an assessment from a designated language-testing organization or institution. In the years following implementation of the IRPA regime, it became clear that voluntary uptake of the standardized test was significantly lower than anticipated. The outcome was a vastly greater caseload of applications requiring assessment of written submissions than was intended when the IRPA regime was implemented and resourced. For visa officers, the assessment of written evidence requires time-consuming analysis of supporting documents whose content is difficult to reliably assess and verify. Overall, the quality of the majority of written submissions is insufficient to satisfy visa officers that the claimed language proficiency was evidenced. Substantial and ongoing processing inefficiencies, subjectivities, and inconsistencies in approach were the outcome.

Objective language testing represents the option with the least risk for applicants and for administrators in ensuring that applications are processed fairly, promptly, and consistently. Mandatory language testing under the current regulatory proposal is consistent with the goals of the legislative framework, emphasizing transparency and economic success. It also supports the goals of the Action Plan for Faster Immigration by providing a reliable means for eligibility pre-screening, and in reducing wait times for applications to be processed. More broadly, mandatory language testing supports the goals of the immigration program through the selection of immigrants who are more reliably assessed for the skills needed to successfully establish themselves in Canada.

Consultation

The previous proposal to amend the Regulations elicited two submissions, one broadly supportive of the mandatory requirement, the other opposing. Those submissions were thoroughly considered, and in particular, concerns over the need for exemptions from the mandatory requirement were fully explored. Departmental officials have communicated the policy direction of mandatory language testing to stakeholders informally, and formally communicated to organizations representing immigration lawyers and representatives the Department’s decision to only assess the evidence provided at time of application, when that directive took effect in April 2010.

CIC has ensured that FSW and CEC applicants are aware of the mandatory language testing processing requirement under Ministerial Instructions published in June 2010, and the processing requirement is outlined in relevant program manuals, application forms and applicant guides.

Implementation, enforcement and service standards

The underlying procedural change (mandatory language testing, with results submitted at time of application) was recently implemented under updated Ministerial Instructions published in the Canada Gazette on June 26, 2010 (Canada Gazette, Part I, Vol. 144, No. 26).

These instructions require that all FSW and CEC principal applicants submit a valid official language test at the time of their application. As such, for these categories of applicants, the proposed Regulations have already been implemented by other authoritative means. The regulatory proposal would extend this requirement to all categories of immigrants who now refer to subsection 79(1) of the Regulations for procedures relating to demonstrating language proficiency. As such, the regulatory proposal would also implement this requirement for Business Immigrants who formerly had maintained the option to provide other evidence in writing under the Regulations.

The requirement to submit a valid test result at the time of application is enforced during eligibility determination, before applications proceed into processing. In other words, applications under the affected categories that are not accompanied by a valid test result at the time of application are determined to be ineli-gible for processing, and are returned with the fee to the applicant.

The Regulations, at section 79 and paragraph 87.1(2)(b), stipulate that language proficiency must be assessed by designated organizations or institutions. An external panel of experts is consulted to review applications for designation and to provide a recommendation to the Department on whether or not the test and the agency meet the requirements for designation. In order to be designated, a testing organization is evaluated on criteria including test availability (geographically, and in terms of frequency of administration), reliability and consistency, security and integrity, appropriateness (the test measures the four skill areas of reading, writing, listening and speaking), and ability to be correlated to the Canadian Language Benchmarks. Once designated, CIC works with testing agencies to address concerns relating to demand and availability, and to ensure that the costs associated with the requirement are reasonable in the context of other requirements of the programs.

Contact

Heidi Smith
Director
Permanent Resident Policy and Programs
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

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 5(1) and section 14 of the Immigration and Refugee Protection Act (see footnote a), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Heidi Smith, Director, Permanent Resident Policy and Programs, Department of Citizenship and Immigration, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-954-4214; fax: 613-954-0850; email: heidi.smith@cic.gc.ca).

Ottawa, December 2, 2010

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. (1) Subsection 79(1) of the Immigration and Refugee Protection Regulations (see footnote 1) is replaced by the following:

Official Languages

79. (1) A skilled worker must specify in their application for a permanent resident visa which language — English or French — is to be considered their first official language in Canada and which is to be considered their second official language in Canada and must have their proficiency in those languages assessed by an organization or institution designated under subsection (3).

(2) The marginal note to subsection 79(2) of the Regulations is replaced by “Proficiency in English and French (24 points)”.

2. The portion of paragraph 87.1(2)(b) of the Regulations before subparagraph (i) is replaced by the following:

(b) they have had their proficiency in the English or French language assessed by an organization or institution designated under subsection (4) and have obtained proficiencies for their abilities to speak, listen, read and write that correspond to benchmarks, as referred to in Canadian Language Benchmarks 2000 for the English language and Niveaux de compétence linguistique canadiens 2006 for the French language, of

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

[50-1-o]

Footnote a
S.C. 2001, c. 27

Footnote 1
SOR/2002-227