Leveling the Playing Field: The Elimination of Discretion in the Immigration Process
Posted on - Apr 16, 2013
By Catherine Sas Q.C.
Discretion has always played a significant part in Canada’s immigration system. Historically immigration officers have been able to use their discretion to assess people’s skills, qualifications, and language abilities in considering various criteria for immigration or citizenship applications. However in recent years there has been a consistent trend to eliminate an officer’s ability to subjectively assess applicants and instead reply on objective third party assessments.
The issue of officer discretion was recently highlighted in a few citizenship cases where native speaking english applicants had their citizenship applications refused for failing to provide appropriate proof of english language proficiency. Stories in the media featured individuals who had been born in the UK and had largely spent their entire lives being educated and working in Canada but were unable to provide proof of their education. Given that they were able to clearly communicate with immigration officers about their applications, people queried why it was necessary for them to provide objective proof of their english language ability when the officers could plainly see that they were fluent in english. However, as of November 1, 2012, applicants for citizenship must provide objective evidence of their english language proficiency. There is no longer an opportunity for an officer to use their own discretion in assessing a citizenship or immigration application.
Exactly what is Discretion in the immigration context?
The Merriam Webster Dictionary defines discretion as, “an individual choice or judgment.”
In the immigration context this means that an officer can make a choice or a judgment about elements of an immigration or citizenship application. In the situation referred to above, it means that an immigration officer can use their individual choice or judgment to determine whether a person meets the necessary standards for language proficiency in a citizenship application.
Visa officers have always used their discretion in several aspects of the immigration process. Language is the most obvious example where a visa officer would make a determination as to a person’s ability. However, a visa officer also has a wide discretion to assess such things as work experience, business operations, financial ability, medical fitness, and educational qualifications.
So why the move away from maintaining visa officer Discretion?
Simply for the sake of transparency and speed. An individual choice or judgment is just that-it belongs to the individual. One visa officer may think that language proficiency is acceptable while another visa officer may find the same individual’s language proficiency is lacking. It is open to the officer to decide and an applicant may or may not agree with the finding. An objective language test or educational evaluation is clear impartial proof that the standard has been met.
Furthermore, the greatest challenge facing the immigration department in processing applications in a speedy manner is the lack of resources. Any process that requires an assessment or evaluation by an officer takes time. An objective test provides immediate proof that a standard has been satisfied. Quite frankly third party testing speeds up the determination process and benefits all applicants.
At first glance the inability of a visa officer to make an individual determination about an applicant’s qualification may seem bizarre. But taken in the context of overall assessment standards and processing timelines, objective third party testing or evaluation services actually level the playing field for all applicants providing consistent evaluation standards and speedier processing times.
Catherine Sas, Q.C. is a Vancouver immigration lawyer at Sas & Ing Immigration Law Centre in Vancouver, BC Canada. Catherine has been practicing law for over 25 years, and has been voted Vancouver’s Best Immigration Lawyer by the Georgia Straight newspaper for 6 consecutive years.
To learn more about immigrating to Canada, becoming a permanent Canadian resident or bringing your family to Canada, email Catherine Sas or call her at 1-604-689-5444.
Related Topics: Canadian Immigration Criteria, Canadian Immigration Programs, family, Immigration, worker