Governing Legislation and Resources for Immigration Law (18:II)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 2, 2024.

A. Main Sources of Immigration Law

Immigration is a very dynamic area of law that changes frequently. It is imperative to refer to the following sources for the most up-to-date information:

• Immigration and Refugee Protection Act, RSC 2001, c 27 ["IRPA"]
• Immigration and Refugee Protections Regulations, SOR/2002-227 ["IRP Regulations"]
• Operational Bulletins and Manuals

There are five general sources of immigration law and policy: the IRPA, the IRP Regulations, the Operational Bulletins and Manuals, Ministerial Instructions and case law. The Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act, 1982) applies to immigration matters; the IRPA and IRP Regulations must be consistent with the Charter provisions.

1. The Immigration and Refugee Protection Act and Regulations

The Immigration and Refugee Protection Act, RSC 2001, c 27 (“IRPA”) is the primary source of immigration law and should be referenced first. However, the IRPA is “framework” legislation, i.e. the provisions are general and principled. The Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRP Regulations”) are more detailed than the IRPA and give specific guidance to applicants. Case law in immigration law operates in the same manner as it does in other areas of law. Case law interprets the IRPA and the IRP Regulations. The IRPA is a federal statute, and immigration related cases generally proceed before the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada. The Immigration and Refugee Board (consisting of four separate divisions) has jurisdiction to hear certain immigration matters.

The IRPA came into force on June 28, 2002, replacing the former Immigration Act of Canada, 1976. It is important to note which legislation governs a matter. Refer to Part 5 of the IRPA and Part 20 of the IRP Regulations for the transitional provisions if you may be subject to the former Immigration Act.

NOTE: Key legislation in this area of law changes frequently. Make sure to check the most recent version of the IRPA and IRP Regulations, and to check the IRCC website for policy changes.

2. Operational Manuals and Bulletins

Much of the operation of law in the Canadian immigration context takes place through the decision-making apparatus of IRCC. IRCC is a large spatially distributed administrative bureaucracy. IRCC “officers” make decisions on written applications without significant applicant input and often without any opportunity to clarify evidence. It is vital that applications contain all the evidence required for the status being sought. Interpretations of the law through the policy of IRCC is publicly available through IRCC's IRCC’s Operational Manuals and Operation Bulletins (a link to these bulletins can be found on the Operational Manuals page).

Operational Manuals are drafted by IRCC and provide details on the interpretation of the IRPA and IRP Regulations. Immigration Officers and Visa Officers usually consider themselves bound to the Manuals when determining a case. Operational Bulletins are recent developments by IRCC that have not yet been incorporated into the Manuals.

NOTE: The Manuals and Operational Bulletins do not have the force of law and must be consistent with the IRPA and the IRP Regulations. Cases that do not fit the factors listed in the Manuals and Operational Bulletins may therefore still be arguable at law. However, you may never have an opportunity to argue the legal case due to the limited and narrow appeals and review options available. It is essential that applicants try to confirm to the policy requirements as much as possible.

3. Ministerial Instructions

Section 87.3 of the IRPA provides the Minister with authority to issue instructions to immigration officers to support Canada’s immigration goals. Ministerial Instructions (MIs) can touch on diverse issues and are used to make fast and sweeping changes to the immigration system. As MIs drive current immigration policy, it is important to pay attention to MIs and to ensure that you are relying on current information.

B. Resources for Immigration Law

Immigration, Refugees and Citizenship Canada (“IRCC”)

• Canadian immigration law changes constantly and sometimes unpredictably. To ensure that you are using the most up-to-date forms, policies and procedures, it is important to check the IRCC website. On the website, you will find information, downloadable forms, and links to the IRPA, IRP Regulations, and Policy Manuals. Operational Bulletins and Manuals published by IRCC are available online under the Publications heading (https://www.canada.ca/en/immigration-refugees-citizenship/corporate/publications-manuals/operational-bulletins-manuals.html). Operational Bulletins and Manuals explain the policies and procedures used by immigration officials to interpret the IRPA.

• For the latest updates on Immigration, Refugees and Citizenship Canada, a newsroom is available here.

• Updates on the Operation Manuals and Bulletins are available here.

Immigration and Refugee Board (“IRB”)

H.M. Goslett & B.J. Caruso eds., The 2018 Annotated Immigration and Refugee Protection Act of Canada, (Toronto: Carswell, Legal Publications). Available on reserve in the UBC Law Library.

Sharryn J. Aiken, et al. Immigration and Refugee Law: Cases, Materials, and Commentary, 3rd Edition. (Toronto: Emond Publishing) Available at https://emond.ca/Store/Books/Immigration-and-Refugee-Law-Cases-Materials-and

L. Waldman, Canadian Immigration Law and Practice 2018 (LexisNexis).

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