- Mr. Moore, what are these letters? What is their purpose?
- The letters are sent to applicants who submitted their immigration applications to Canada before January 2002 and have not yet received a decision or have received a negative decision. The letters inform these applicants about the agreement between the immigration authorities and a group of Canadian lawyers as a result of the latter's ongoing lawsuit against the immigration authorities.
The purpose of the lawsuit is to get the Canadian authorities to fairly process the applications of a huge number of applicants under the so-called economic class (skilled workers and business immigrants) filed before January 2002. The right of these applicants to a fair review was violated by the inclusion in the new Immigration Act (June 2002) of the principle of retroactivity.
The principle of retroactivity means that an applicant who meets the immigration requirements at the time of filing must satisfy any new requirements if they come into force during the processing of the application before a selection decision is made on the case. If the applicant does not meet these requirements, their immigration application will be refused.
The lawsuit reflects the sentiments of a significant part of Canadian society. The lawyers forced the Canadian government to respect its obligations to people who paid money for the processing of applications under the law whose requirements they met at the time of filing. The injustice also lies in the fact that these applicants were not aware of the principle of retroactivity at the time of filing.
The Canadian court has already ordered that the cases of this group of applicants be reviewed under the one of the two immigration acts (new or old) whose requirements each particular applicant most fully satisfies.
- What agreement did the lawyers achieve at this stage?
- In addition to the review procedure described above, as a result of 149 court hearings, the lawyers forced the immigration authorities to set clear time limits for processing applications from this group of applicants. The draft agreement has been submitted for approval to the Federal Court of Ontario, where the lawsuit against the immigration authorities was filed. The settlement obliges the immigration authorities to complete the processing of all cases of applicants in this group no later than 40 months after the court officially approves it.
This is a very large number of cases, and this period is the maximum. In reality, many applicants will get a decision much earlier. For example, according to the draft settlement, 50% of applicants who filed their applications in 1999 will receive a decision within 12 months from the date of court approval.
- Who exactly falls into the group of applicants affected by the proposed settlement?
- This is a large group of applicants who filed their applications before January 1, 2002 under the federal skilled worker and business immigrant programs. In January 2002, it was officially announced for the first time that the new Immigration Act would come into force in the summer of the same year.
Basically, this group consists of applicants who: did not receive a decision before April 1, 2003; received a refusal between March 31, 2003 and December 1, 2003; re-submitted their applications up to and including December 31, 2004; withdrew from further processing of their applications in the period from January 1, 2002 to December 1, 2003 inclusive; re-submitted their applications up to and including December 31, 2004; received a refusal under the old law and whose applications were subsequently sent for review by the court and a decision was expected on December 1, 2003, as well as some other applicants.
- How did it happen that the decision on the lawsuit affects immigration cases of people not directly involved in the lawsuit itself?
- The draft settlement is based on the lawsuit "Rasolzadeh v. Citizenship and Immigration Canada", which belongs to so-called class actions. A class action is a lawsuit by a group of people who have united to pursue a common case against an organization or company. Court decisions in class actions can extend to large groups of people whose interests are affected in the case, even though their names are not directly mentioned in the lawsuit.
In this situation, it means that all these applicants' cases will be considered on the basis of the provisions of this settlement, although the vast majority of them are not mentioned in the case "Rasolzadeh v. Citizenship and Immigration Canada". The settlement does not apply only to those applicants who voluntarily opt out of it.
The agreement also provides that the applicants and the lawyers leading the case waive further legal action against the immigration authorities on this issue. However, this does not deprive a particular applicant of the right to challenge in court an individual negative decision of the immigration service on their application.
- When does the settlement come into force?
- So far, this is a draft. For the document to become binding, it must be approved by the Federal Court of Ontario. A court hearing to review and approve the draft will be held on March 14, 2005.
- Can the Canadian court fail to approve the agreement reached?
- Theoretically, anything is possible, but given the decisions already made by the court and the fact that the settlement is a joint product of the immigration authorities and a group of lawyers, it is hard to imagine.
- Can this settlement be considered fair?
- The reached agreements contain a clear mechanism for resolving the problem: the procedure and deadlines for consideration. This restores justice for the mentioned group of applicants. Moreover, consideration under the most favorable requirements for each individual applicant provides certain advantages – if the applicant does not meet the requirements of one of the immigration acts, their petition must be considered for compliance with the requirements of another. This gives real chances for a positive decision to applicants who submitted documents under the old law, whose work experience does not match the specialty according to their diploma, and there are a great many of them in Ukraine.
The current agreement is a step forward for the speedy consideration of immigration petitions. After the document is approved by the court, the immigration service will be obliged to strictly comply with the deadlines and procedures provided for by it for considering the cases of this group of applicants.
Interviewed by Vladimir RUDESHKO,
Association “Golfstream”.