Vol. 145, No. 6 — March 16, 2011

Registration

SOR/2011-54 March 3, 2011

IMMIGRATION AND REFUGEE PROTECTION ACT

ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations

P.C. 2011-261 March 3, 2011

His Excellency the Governor General in Council, on the recommendation of the Minister of Citizenship and Immigration, pursuant to subsection 5(1) and section 14 of the Immigration and Refugee Protection Act (see footnote a), hereby makes the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

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.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

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 by either submitting the results of a designated third-party language test, or 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, and they serve only as a proxy for the applicant’s ability to read, speak or listen to an official language of Canada.

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 this regulatory amendment 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 supports 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 also supports timely decision making on the eligibility of applications, and results in faster processing of applications through expedited assessment at the visa office processing stage.

Description

The Regulations are amended as follows:

• Paragraph 79(1)(b) is 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) are 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 as follows:

• The marginal note to subsection 79(1) is 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) is 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 substantially the same as the present amendment 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, the 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 has now amended the Regulations to be consistent with that processing directive.

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. Under the former system, if an applicant submitted written evidence that was ultimately inconclusive or failed to obtain sufficient points, the applicant would lose their application fees on refusal.

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 procedures. 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 will usually be limited to the time and cost of taking the language test. For most applicants, this requires 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 dependants in order to take the test. Depending on their location or circumstances, a few individual applicants may be required to travel to other jurisdictions in order to undergo the testing.

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 are 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 that the vast majority of applicants would 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 required time-consuming analysis of supporting documents whose content was difficult to reliably assess and verify, particularly with respect to the reading, speaking and listening competencies. Overall, the quality of the majority of written submissions was 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 regulatory amendment 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 regulatory proposal was pre-published in the Canada Gazette, Part I, Vol. 144, No. 50, on December 11, 2010. Interested persons had the opportunity to comment within 30 days, with the comment period ending on January 10, 2011. As a result of the comment period, only one submission was received. The Canadian Bar Association (CBA), in their submission, outlined procedural and substantive concerns relating to the proposal.

In terms of procedural issues, the CBA expressed support for CIC’s decision to proceed by way of regulatory amendment to accomplish the change to mandatory language testing, at the same time expressing concern over future use of Ministerial Instructions to test new regulatory initiatives.

In terms of substantive issues, the CBA expressed concern over universally applying the testing requirement, in particular for applicants from predominantly English- or French-speaking environments. They provided suggestions for alternative models for demonstrating language proficiency, including those outlined in previous submissions from the association. In summary, their suggestion was that applicants who can easily demonstrate their proficiency by written evidence should be permitted to continue to do so. They expressed concern regarding the accessibility of testing facilities in Canada and abroad as a potential cause for delays in filing an application (which may in particular disadvantage temporary foreign workers and international graduates whose status may be affected or require renewal as a result). The submission also included suggestions relating to possible language proficiency requirements, not summarized here as they do not relate to the regulatory amendment.

CIC has carefully reviewed the comments contained in the CBA’s submission. Overall, the association appears to prefer the status quo (with the option to provide written evidence), or alternatively, a regulatory proposal that would provide for applicants to demonstrate their proficiency by other means, including circumstantial ones such as their language of education or country of origin. Suggested alternatives include those previously considered by the Department, either as a result of the association’s previous submissions or as a result of its own analysis of program options for the demonstration of language proficiency.

The Department maintains that the added burden associated with the requirement is justifiable in the context of other requirements of immigrating to Canada, but acknowledges that a minority of applicants (for whom the option to provide other written evidence was originally intended), now have to incur time and cost that they would not if a suitable exemption were possible. However, the options suggested and explored either do not meet the evidentiary requirements of the current Regulations, or have already been assessed to be unreliable proxies for general proficiency in one of Canada’s official languages (for instance, academic credentials and transcripts, or country of origin). Therefore, the Government proceeded with the regulatory amendment as pre-published, taking note of the concerns raised by the association in respect of accessibility of language-testing facilities globally, and the potential impact on categories of applicants, particularly in Canada in terms of status in Canada.

CIC continues to work with designated testing agencies to ensure that they take all reasonable measures to respond to increased demand (in terms of frequency and geographic location) as a result of the new requirement. Wait times for testing globally suggest that most applicants required to undergo language assessment by a designated organization are able to do so within reasonable time frames. In terms of in-Canada testing, the Department is satisfied that language-testing agencies have reasonably expanded their availability of testing following the implementation of the Canadian Experience Class program, in 2008, and will continue to monitor the in-Canada situation to work with testing agencies to further enhance the availability of testing. The Department is also hoping to expand the number of designated tests and/or language-testing agencies expressing interest in order to increase the choice and availability of acceptable language assessment in Canada and overseas.

Implementation, enforcement and service standards

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

These instructions required that all FSW and CEC principal applicants submit a valid official language test result at the time of their application. As a result, for these categories of applicants, the amendment has in effect been implemented by other authoritative means. The regulatory change now extends this requirement to all categories of immigrants who presently refer to subsection 79(1) of the Regulations for procedures relating to demonstrating language proficiency. Thus, the amendment also implements 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 ineligible 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 West
Ottawa, Ontario
K1A 1L1
Telephone: 613-954-4214
Fax: 613-954-0850
Email: Heidi.Smith@cic.gc.ca

Footnote a
S.C. 2001, c. 27

Footnote 1
SOR/2002-227