Introduction to Immigration Law (18:I)
Immigration law is a very dynamic area, and it has undergone significant change in the recent past. For this reason, it is imperative to refer to the following sources, for the most up to date information about immigration law:
- Immigration and Refugee Protection Act, RSC 2001, c 27 [IRPA] - http://canlii.ca/t/7vwq
- Immigration and Refugee Protection Regulations, SOR/2002-227 [IRP Regulations] - http://canlii.ca/t/7xsp
- Operational Bulletins and Manuals - http://www.cic.gc.ca/english/resources/manuals/index.asp
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. The Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982 c 11 [Charter]) is also applicable to immigration matters; the IRPA and IRP Regulations must be consistent with Charter provisions.
The IRPA 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. Cases are also handled by a tribunal called the Immigration and Refugee Board (consisting of four separate divisions).
However, much of the operation of law in the Canadian immigration context takes place through the decision-making apparatus of CIC, which is a large spatially-distributed administrative bureaucracy. CIC “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 CIC, which is publically available through CIC’s Operational Manuals and between manuals, Operation Bulletins (a link to these bulletins can be found on the Operational Manuals page).
Operational Manuals are drafted by CIC and provide details on 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 Citizenship and Immigration Canada 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, 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.