Main Sources for Immigration Law (18:II)
A. Main Sources of Immigration Law
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"]
- Immigration and Refugee Protections Regulations, SOR/2002-227 ["IRP Regulations"]
- Operational Bulletins and Manuals
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 is also applicable to immigration matters as 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 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).
The Immigration and Refugee Protection Act, RSC 2001, c 27 (“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 Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRP Regulations”) for the transitional provisions if you may be subject to the old Act.
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.
2. Operational Manuals and Bulletins
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).
Operational Manuals are drafted by IRCC 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 Immigration, Refugees and Citizenship 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.
3. Ministerial Instructions =
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
● Canadian immigration law is changing constantly and sometimes unpredictably. To ensure that you are using the most up to date forms, and the most current policies and procedures, it is important to always check the web site of Immigration, Refugees and Citizenship Canada: Here you can find information, downloadable forms, and links to the IRPA, Regulations, and Policy Manuals. Operational Manuals and Bulletins 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). They explain the policies and procedures used by immigration officials to interpret the IRPA.
Immigration and Refugee Board (“IRB”) Website: http://www.irb-cisr.gc.ca
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.
L. Waldman, Canadian Immigration Law and Practice 2018 (LexisNexis).