Difference between revisions of "Governing Legislation and Resources for Immigration Law (18:II)"

There are six general sources of immigration law and policy: the IRPA, the ''IRP Regulations'', the Manuals, the Operational Bulletins, the Ministerial Instructions, and case law.  [http://laws-lois.justice.gc.ca/eng/const/page-15.html The Canadian Charter of Rights and Freedoms] is also applicable to immigration matters as the IRPA and ''IRP Regulations'' must be consistent with the ''Charter'' provisions.

The Immigration and Refugee Protection Act is the primary source and should be referenced first.  However, the IRPA is “framework” legislation, i.e. the provisions are general and principled.  The 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 cases generally go to the Federal Court, the Federal Court of Appeal and the Supreme Court of Canada.  The Immigration and Refugee Board has jurisdiction to hear certain immigration matters (consisting of four separate divisions).

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

However, much of the operation of law in the Canadian immigration context takes place through the decision-making apparatus of IRCC, which 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, and so it is vital that applications contain all the evidence required for the status being sought.  Much of the law itself is interpreted through the policy of IRCC, which is publicly available through IRCC’s Operational Manuals (http://www.cic.gc.ca/english/resources/manuals/index.asp) and between manuals, Operation Bulletins (a link to these bulletins can be found on the Operational Manuals page).  

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, and so it is essential that applicants try to confirm to the policy requirements as much as possible in the circumstances.

The Ministerial Instructions are provided for in s 87.3 of IRPA, and are created through Order in Council.  The Ministerial Instructions drive current immigration policy.  The Minister uses Ministerial Instructions to make fast, sweeping changes to the immigration system, and so it is very important to ensure that you are working with the most current information on requirements.

Immigration, Refugees and Citizenship Canada (“IRCC”)

Website: www.cic.gc.ca