An outdated patchwork

The Immigration and Refugee Protection Act is showing its age and needs an overhaul.

That’s the overarching message in a new report drafted by the Canadian Bar Association’s immigration law section.

The report has been presented to Immigration Minister Lena Metlege Diab, Minister of Public Safety Gary Anandasangaree, and Minister of Government Transformation, Public Works, and Procurement Joël Lightbound.

Law, Technology, and Accountability: Reimagining Canadian Immigration for the 21st Century makes 100 recommendations to modernize Canada’s immigration framework, which came into force in 2001.

Deanna L. Okun-Nachoff of McCrea Immigration Law in Vancouver is part of the working group that drafted the report. She says given the number of global conflicts and the people displaced by them, coupled with the economic challenges post-COVID, the report is a recognition that we’re in a very different and challenging time with respect to immigration.

“We’re seeing a change in public attitude towards immigration in Canada,” she says. “It’s the first time many of us have seen that happen and we feel it’s a result of how discombobulated the immigration system has become.”

Okun-Nachoff says that instead of a regulatory, legislative basis for immigration policymaking, the framework has become “a patchwork of ad hoc policies that are created under ministerial instruction.”

In 2008, the immigration minister gave himself the power to issue ministerial instructions. The federal government wanted this to allow it to be nimble and change rules quickly to pivot when the need arose.

At the time, the Canadian Bar Association raised the alarm that this was contrary to the rule of law and democratic principles.

“There's a reason why there are regulatory processes: when new laws come into place, there is debate, there's consideration, and there's time to look through them,” Okun-Nachoff says.

In bypassing that, there was concern about a lack of security and predictability in the process. As predicted, both have eroded over time, "wholly transforming the way that immigration law is made.”

Lack of predictability a problem

She says there’s a lack of transparency, consistency, discussion and debate in working through policies before they're enacted and start impacting people’s lives.

“There's a joke around the Immigration Section that if you go out for a cup of coffee, when you come back, there are new rules in place,” Okun-Nachoff says.

In an administrative law realm, where lawyers are very committed to human rights and procedural fairness, it’s been difficult for practitioners and their clients to no longer have predictability in the system.

She says people decide to move their families from one country to another based on their best-laid plans and opinions that made sense, only to find out years later that rules have changed. It's really not viable, through no fault of their own, so they have to reverse engineer everything.

“People are feeling very disillusioned and just very confused,” Okun-Nachoff says.

This lack of fairness and cohesion has eroded Canada's brand in the global sphere and inhibited our ability to attract exactly those we wish to attract.

“There are people that I speak with and I can't imagine why Canada would not want to attract and retain them, but I cannot find them a pathway to permanent residence,” she says, referring to a client who came here, obtained a PhD, and was working in the climate change space, but didn’t get the points they needed to qualify for permanent residency.

She says it’s very bizarre for her as a practitioner to have to tell someone in that position that if they could learn French, maybe she could do something for them.

“I have absolutely no problem with the mandate of trying to build French-speaking communities, but it feels like a very strange way we're trying to accomplish that. It’s so mechanical,” Okun-Nachoff says.

“I just feel like in this effort to make everything automated, to make it easy to have these things processed in a machine-based learning environment, that we're losing a lot in the quantitative assessment of who we actually wish to have.”

This is something lawyers are running into weekly.

Transparency around technology

While that has brought opaqueness to the system, so has technology, particularly the way artificial intelligence has been introduced and administered.

In 2021, Immigration, Refugees and Citizenship Canada admitted to using Chinook for temporary resident application processing, something Okun-Nachoff says was never publicly announced. Lawyers learned about it by seeing notes in applicants’ paperwork that decisions had been made with the assistance of Chinook. That covert implementation led to a real loss of confidence. She says it’s not uncommon now to hear lawyers remark that they don’t know if the substantive submissions they’re putting forward on behalf of their clients will even be read.

“People have a lot of doubts.”

That sense now permeates the process. When someone’s application is triaged for refusal, while there is a human in the loop in addition to the technology, how much time that human spends actually reviewing the application's content isn’t necessarily known. When an applicant gets a decision, they don’t get any information about why they were triaged for refusal in the first place.

“We just get the language of the refusal, which might be one or two sentences long, and that’s what we are left to challenge, which has changed the quality of what the judicial review is going to be about,” Okun-Nachoff says.

“In my view, the tribunal record we receive is incomplete.”

Even if someone is successful, she doesn’t know if that just becomes part of the algorithm or if it is based on factors that aren’t part of the public record? While she has no issue with using automation for efficiency, not having a general framework for how the AI mechanism needs to be built or a publicly available oversight mechanism makes her uneasy.

Whether it’s understanding the parameters or knowing that the work is being done in a non-discriminatory way, there are no assurances right now.

International law obligations

The report also raises questions about whether Canada is living up to its commitments under international law in its refugee protection scheme and in its response to humanitarian crises, including those in Ukraine, Gaza and Sudan. Are the programs meeting our domestic obligations regarding Charter values?

The report discusses the need for decision-making in the refugee context to be done in a principled, humane and trauma-informed way that ensures equality among claimants fleeing violence and persecution.

There is another area calling out for more consistency. The last few years have seen a plethora of programs for people looking for safety in Canada, but each one has been unique and a creation onto itself, Okun-Nachoff says.

“Not to sound too cynical, but while it makes for great press for the government, for people on the ground trying to work with applicants, the challenges and obstacles trying to navigate these programs have been real.”

There is a lot packed into the report, with proposed reforms guided by six foundational principles: human rights, innovation, transparency, natural justice, collaboration, and user experience.

The goal is to restore balance, consistency, and cohesiveness and ensure the system that profoundly affects individuals’ lives and rights is user-friendly, fair, and accessible.

“We want this to be the opening of a conversation with the department,” Okun-Nachoff says.

“The CBA wants to be a proper stakeholder (to help) develop sustainable and principled immigration policy. We hope it will be taken in that spirit, and that collaboration can develop something less patchwork and more of an actual living working scheme.”