After the new legislation came into force in the summer of last year, the Ministry of Immigration slowed down the processing of emigration cases for skilled workers, and then applied the new rules to them retroactively.
Canadian immigration officials understood that the slowdown in case processing, allegedly connected with the introduction of the new law and the time needed by Canadian consulate staff to master it, would inevitably lead to the 100,000 cases that were still being processed under the old legislation being considered under the new criteria. Many of these hundred thousand potential immigrants now claim that under the old legislation they would definitely have received visas, but now they will be refused. They insist that it would be fair if their cases were considered under the rules in effect when they filed applications and paid for their processing.
Upon learning of the decision of the Federal Court of Canada, Susan Scarlett, press secretary for the Ministry of Immigration, said that her department would comply with the judge's ruling. "We will suspend refusals for old applicants and will act this way until a new court decision," she said. "We will inform those who applied for immigration during the period of the old law about the current court verdict."
What does all this mean for those concerned? Well, they will receive a corresponding notice from the consulate: we will not send you a refusal yet. And will their cases drag on for years? And will they receive that refusal when they have long forgotten that they were planning to move to Canada?
A lawsuit to suspend the issuance of refusals was filed in Canadian court by three immigration lawyers from Toronto - Ron Forster, Dan Miller, and Lorne Waldman. In January 2002, as soon as the retroactive effect of the new immigration law became known, Dan Miller predicted a big scandal in the pages of the newspaper "Inostranets". He said that the retroactivity of the law contradicts the norms of a democratic society and that the procedure introduced by the ministry would certainly be challenged in court.
The lawyer, as expected, did not back down from his position. We contacted Toronto by phone and asked Dan Miller to explain to us the essence of the latest Federal Court decision.
- I saw your name in one of the Canadian newspapers, it was mentioned in connection with the class action lawsuit of immigration applicants.
- Everything is a bit more complicated than it seems at first glance. Let me try to explain. This spring, more than 60 lawsuits were filed in Canadian courts, and there are now 64 of them. Many of these lawsuits are class actions, that is, they are filed on behalf of one or more clients, but the decision will apply to everyone who is in a similar situation and, naturally, wants the same decision to be applied to them. I was one of the 12 lawyers who filed precisely class actions.
We want to force the government to consider under the old rules the cases of those who applied for immigration to Canada under the categories of skilled workers and businessmen before January 1, 2002, that is, when the old rules were still in effect.
Class actions usually take a very long time in court - months and even years. Thus, even if our case were decided positively, during the time of its consideration the government would have managed to refuse immigration visas to many hundreds of our clients. Therefore, we three lawyers applied to the court with a request to temporarily prohibit the Ministry of Immigration from issuing refusals to the economic category of applicants until a decision is made on the class action. And on Friday, June 20, our request was granted.
- Let's explain everything in order. Who is included in the economic category of applicants?
- These are, first, skilled workers. Second, businesspeople. The latter are divided into three groups: those who create jobs for themselves and employ themselves - artists, athletes, coaches, musicians, and so on; actual entrepreneurs who either buy a Canadian enterprise or create a new enterprise in Canada themselves; and, finally, investors who invest a certain amount of money in a special state fund.
- What time limits for filing applications are we talking about?
- The class action and, accordingly, the temporary order we obtained to suspend refusals applies to those who applied for immigration to Canada before January 1, 2002. In fact, the new immigration law came into force on June 28, 2002. But on January 1, 2002, the government published the draft of the new immigration rules, so anyone who applied after that date already knew what to expect. And the current court decision to freeze refusals does not apply to them.
It is also important to note the following: class action applicants can nevertheless continue their immigration process if they agree to have their cases considered under the new criteria. However, those who understand that they will be refused an immigration visa under the new rules must be patient and wait.
- What about those who have already received a refusal?
- The current court decision does not apply to them. Even those who, for example, receive a refusal notice dated June 19 in the mail on June 30 do not fall under it. The court decision was made on June 20, and it is from that day that refusals cannot be issued.
- What should those who are so unlucky do?
- It remains to hire a lawyer and file a personal lawsuit.
- In newspaper publications, I came across conflicting data about the number of people falling under the category of class action filers. What is your estimate of the number of people whose interests are represented in this process?
- By estimates of Canada's Ministry of Immigration, as of January 1, 2002, 104,000 applications had been submitted - and not yet reviewed - from around the world. If we assume that behind each application there is a family of an average of two and a half people, then we are talking about 260,000 potential immigrants.
There is also a group of people who applied for immigration after January 1, 2002, but before June 28, 2002 - that is, before the new rules came into force. The current court decision does not apply to them; their cases will continue to be considered. However, they should know that lawsuits have been filed in Canadian courts that also affect their interests, and the decisions on them may be favorable.
Another important detail. Some of the class-action lawsuits request that the old immigration rules be applied to the plaintiffs; others request only monetary compensation. The total amount of these compensations ranges from 400 million to 1.4 billion Canadian dollars.
- I thought that the plaintiffs were primarily concerned with repealing the retroactivity of the law and only in case of refusal ask to compensate their financial and moral losses.
- Yes, but now all these lawsuits are combined into a general court procedure.
- And what is your forecast?
- Quite optimistic. And not without reason. During this major litigation, we have to file interim motions from time to time: the motion that led to the suspension of refusals is just one of them. So, all these interim cases of ours ended successfully. The court treats the applicants' situation with sympathy and understanding. Everything happening is a big headache for the Ministry of Immigration. And, in my opinion, there is a very high probability that it will not want to take the case to court, where it has little chance of winning.
- Do you hope that after all this noise, aggravation, and lawsuits, the Ministry of Immigration will simply give in and start processing applications submitted before January 1, 2002, under the old rules?
- That is exactly what we are counting on: that the ministry will prefer to conclude an agreement rather than go to court. Especially since it has not been very lucky in courts so far, the judges were too favorable to our arguments.
- In your estimation, how many of the applicants are from the former Soviet Union countries, who are covered by the latest court decision?
- Of the 104,000 applications, approximately 8,000 are from the countries of the former Soviet Union.