COURT FORCES
IMMIGRATION DEPARTMENT TO LOWER THE PASSMARK
We are pleased to inform you about some fundamental
changes in Canadian immigration legislation that will
positively affect all applicants. The Immigration Department
succumbed to the need of applying fairness in its decision
making process while assessing applicants.
Hence, the new pass mark to be eligible to immigrate has
been reduced to 67 (from 75). This applies retroactively
to all applications, old and new.
This decision was mainly the result of a class action by
Canadian immigration lawyers in the Federal Court of Canada,
the main issue being fairness to applicants. The new pass
mark should reduce the present pressure on all applicants
to score maximum points for language.
Consequently, anyone who did not qualify previously, may
now apply. The law makes provision for the minister to review
and adjust the pass mark as and when necessary based on the
flow of the quality and number immigrants. The following
is an excerpt from the News Release today:
On September 18, 2003 , The Minister of Citizenship and
Immigration of Canada, announced an important decision and
recommendation pertaining to the Immigration and Refugee
Protection Act (IRPA). The Minister announced an adjustment
to the pass mark for federal skilled worker applicants. This
decision would be effective retroactively to applicants who
applied under the former Immigration Act but were
affected by transitional measures following implementation
of IRPA on June 28, 2002 .
The Minister's move to adjust the pass mark is a response
to Canada 's need for skilled workers. Effective immediately,
all new skilled worker applicants and those currently in
the system who have not yet received a selection decision,
will be assessed with a pass mark of 67. (Since the implementation
of IRPA and until 18 September 2003 , the pass mark was 75.)
"An important objective of IRPA was to create a system
that is flexible," said the Minister. "Today's
changes to IRPA reflect this flexibility and our ongoing
commitment to listen to the views of all stakeholders. We
are responding to current circumstances in a way that continues
to encourage skilled immigration within the confines of existing
resources and a balanced plan."
Additionally, the Minister is proposing to amend the IRP
transition regulations to allow for all skilled worker and
business immigration applicants who applied before January 01,
2002 to be assessed under the selection criteria of the former Immigration
Act. Applicants who do not qualify under the former
Act would then be assessed under the current IRPA.
"The government's clear intention has always been to
treat applicants fairly," explained the Minister. "That
is why we introduced and then extended transition measures. The
court has suggested that more is required of the government.
I have listened to that message. That is why I am proposing
these changes today ."
The new pass mark takes effect immediately.
Backgrounder
Selecting Skilled Worker and Business
Immigrants
The government has consulted widely and regularly since 1996 to build an immigration
system that meets the needs of all involved -- from the applicants themselves
to employers and communities that need skilled workers and the taxpayers
who fund the immigration program in Canada . The Immigration and Refugee
Protection Act (IRPA) was the result of this analysis and consultation.
It was implemented on June 28, 2002 .
The inventory of skilled worker cases in process could not
be cleared before the coming into force of IRPA. Therefore,
in fairness, Citizenship and Immigration Canada (CIC) took
several steps which included:
- extending the time in which these applications could
be processed under the former selection grid from June 28,
2002 to March 31, 2003 .
- processing these applications under a lower passmark
(70 instead of 75)
- offering a refund of processing fees to those who had
not received a selection decision.
Some skilled worker and business applicants felt that the
transition rules were not fair and took the department to
Court. In February 2003, the Federal Court ordered that the
applications of those involved in the lawsuit who had applied
before January 1, 2002 be assessed under the former
Act before March 31, 2003 . CIC complied with that order.
For those who submitted their applications after January 1,
2002 , the judge felt that they had been aware at the time
they filed their applications that they would be processed
under IRPA and that there was therefore no unfairness.
Following the Courts decision, many other people felt that
their applications should also be reviewed. In June
2003, a Federal Court judge imposed an injunction on CIC,
preventing the department from finally refusing any application
which was filed prior to January 1,
2002 . This injunction also requires the
department to notify all applicants that could potentially
be involved in a class action. CIC is in the process
of complying with this injunction.
The courts have determined that, while they are legal, the
transition provisions between the Immigration Act and
IRPA are not as fair to applicants who applied before January 1,
2002 as the government had believed. The government has listened
to that message. For that reason, Minister Denis Coderre
is proposing to amend the transition regulations to allow
economic class applicants (skilled workers and business immigrants)
who filed their applications for permanent residence before
January 1, 2002 to be assessed under the former Immigration
Act (and then under IRPA if refused under the former
Act).
These proposed amendments would meet the applicants' request
to be processed under the selection criteria in place at
the time they filed their applications and also give them
the benefit of an assessment under IRPA.
CIC also proposes to offer the same processing to:
- those people who had applied prior to January 01,
2002 and who were refused between the coming into force
of the new selection grid on March 31, 2003 and June 20,
2003 ; and
- those who withdrew their applications between January 01,
2002 and the coming into force of these proposed regulatory
amendments.
Applicants in these last two groups will be required
to advise CIC of their desire to be processed before January 01,
2005.
Backgrounder
Pass Mark for Skilled Workers
In the new selection system the pass mark is the primary tool to balance the
qualifications and quantity of Federal Skilled Worker immigrants. The Minister
may amend the pass mark from time to time, to reflect the changes in Canadian
labour market and in the broader economy and in society, as well as changing
demands on the part of prospective immigrants to Canada .
The Minister set the Federal Skilled Worker pass mark at
75 points when the new selection system came into effect
on June 28, 2002 . On September 18, 2003 , the
Minister amended the pass mark for new skilled worker applicants
to 67. The pass mark for skilled worker applicants currently
in the system who have not yet received a selection decision
will be also be 67.
A pass mark at that level will allow the Canadian economy
to benefit from skilled immigrants and meet immigration goals.
Regulation 76 (2) of the Immigration and Refugee Protection
Regulations states that:
The Minister shall fix and make available to the public
the minimum number of points required of a skilled worker,
on the basis of
(a) the number of applications by skilled workers as members
of the federal skilled worker class currently being processed;
(b) the number of skilled workers projected to become permanent residents according
to the report to Parliament referred to in section 94 of the Act; and
(c) the potential, taking into account economic and other relevant factors,
for the establishment of skilled workers in Canada. |
