Raj Sharma is the managing partner of Stewart Sharma Harsanyi, one of Canada's largest dedicated immigration law firms. He graduated with his JD from the University of Alberta and his LLM from Osgoode Hall Law School.
Ram Sankaran practices immigration law with Stewart Sharma Harsanyi in Calgary, Alberta. He is a graduate of Dalhousie School of Law.
The legacy of the Harper decade with respect to immigration law and policy will be characterized by the denigration of Canada's humanitarian tradition, confrontation with the Courts, dog whistle politics, and the ascendency of bottom-line driven immigration policy. For most of the decade, changes to immigration have been led by Jason Kenney, the now former Minister of Citizenship and Immigration and without a doubt the most transformative minister that portfolio has seen in living memory. For Kenney, no crisis – real or created – was wasted as an opportunity to place the stamp of the Conservative brand on immigration. Indeed, there is no aspect of immigration policy that has gone untouched. From refugee policy to citizenship, the Harper decade will have far reaching effects that can only be grasped at present.
The most comprehensive changes were made to Canada's refugee determination system. There were, undoubtedly, some worthwhile aspects to these changes. For example, under the previous system, claimants often waited years for their claims to be heard. This problem was further compounded when the Harper government took office and failed to appoint or re-appoint decision makers, increasing the backlog of claims.
However, through the Balanced Refugee Reform Act, the Harper government streamlined this “broken system,” ensuring that claims would be heard much quicker than was the case previously. A refugee claimant's country of origin now directly impacts how quickly their claim is heard, what appeal mechanisms are available and how quickly they are deported in the event that their claim is unsuccessful. For instance, if a claimant is from a country that has been designated "safe" (the Minister commonly referred to these claimants as “bogus” refugees), their claim is expedited, with no further recourse if the claim is dismissed. This approach has drastically cut down the time it takes for refugee claims to be heard.
However, the problem with this approach is that some of the countries designated “safe” by the Minister, such as Mexico, are not actually safe, as objective evidence clearly establishes that these countries experience rampant insecurity, corruption and ineffective state protection. Countries were designated “safe” by the Minister on the basis of Canada receiving a large number of claimants from those countries and not on any objective evidence regarding the safety of specific claimants. The theme of ideologically driven decision-making, without reference to statistical or factual analysis, is a constant of the Harper decade.
In conjunction with the Balanced Refugee Reform Act, the Minister sought to implement other disincentives to individuals coming to Canada and making refugee claims. These disincentives ranged from the farcical (putting up billboards in foreign countries) to the tragic (denying refugee claimants health coverage). The latter best betrays the Harper government worldview. The widespread changes (at present reversed by the Federal Court as infringing basic freedoms) denied healthcare coverage to children, pregnant woman, and cancer patients among others on various specious grounds, including the false assertion that refugee claimants were receiving better healthcare than Canadians. In reality, this was a disincentive strategy, plain and simple, implemented to drive down the numbers of refugee claimants received by this country (the only metric that seems to matter to the Harper government and the one that was touted as the basis to conclude that the refugee reforms were "successful").
Unfortunately, while the Harper government has played politics, immigrants, refugees and ordinary Canadian Muslims have paid the price. The atrociously entitled Faster Removal of Foreign Criminals Act dramatically lowers the threshold for removing even long term permanent residents of this country, often for penny ante criminal offences. However, part of the core messaging of this government is that it is tough on crime and criminals. Hard cases make bad law, and the Harper government is about to prove that the converse is true – Kenney’s hard law will make for bad cases.
In another example of how politics supersedes policy, Harper recently vowed to appeal the Federal Court ruling of Justice Keith Boswell (a 30 year card-carrying Conservative appointed by this very government), which found that the Department of Citizenship and Immigration wasn’t following its own regulations in preventing a veiled Muslim woman, Zunera Ishaq, from taking the oath of citizenship. Following Harper's announcement that he would be appealing Boswell's ruling, the Conservatives sent out fundraising requests citing their opposition to the niqab, a veil that perhaps some few dozen women in Canada wear.
Ishaq had no issue with the actual policy, which required her to unveil for the purposes of establishing her identity prior to the oath. However, she challenged the policy or fiat that Kenney, then Minister of Citizenship and Immigration, had promulgated (without legislative basis) preventing veiling during the oath-taking ceremony. Boswell overruled Kenney's attempt to rule by fiat and found that it contradicted regulations that specifically allowed for the “greatest possible freedom” during the oath-taking ceremony. Boswell made short shrift of the government’s arguments, stating: “How can a citizenship judge afford the greatest possible freedom ... in taking the oath if the policy requires candidates to violate or renounce a basic tenet of their religion?”
The mercantile mentality of this government has extended even to the quintessential right, that of Canadian citizenship. In essence, citizenship is a commodity for this cabal of merchants, and the way to increase the value of a commodity is to decrease supply. Citizenship under the Harper government is harder to get and easier to lose. Ostensibly based on putative problems such as "birth tourism" and so-called “Canadians of convenience,” the government has imposed more stringent requirements for citizenship and has also created more avenues for revoking status. Bill C-24 dramatically increases the grounds for revocation and has created different classes of citizenship. Once again, this government's legislation is headed to the courts.
Keeping in line with this government's pro-business outlook (businesses of course want a stable, compliant work force), the temporary foreign worker program was dramatically expanded. At the same time, no thought or consideration was spared for the tens of thousands of "low skill" foreign workers for whom there is no pathway for permanent residence (in fairness, no pathway was afforded by the previous government either). Low skill temporary foreign workers remain the coolie, bonded labour, with no hope to remain permanently and with explicit limits on their stay here of a maximum 4 years.
Numbers were crunched even when it came to filial obligations and affections. Kenney suspended the family class (parents and grandparents) for two years, noting that older immigrants cost the system hundreds of thousands of dollars in health care costs. The program is now limited to the first 5,000 applicants with increased income requirements for the sponsor in Canada. Family reunification is now reserved for the affluent and well-established.
Collectively, these examples suggest that the Harper government’s immigration policy is, for the most part, built on ideology, politics and anecdotal "evidence" rather than strategic foresight or the country's best interests. The Harper government has tried to instill fear in ordinary Canadians that outsiders, such as refugees, foreign workers or more recent immigrants, are abusing the system. This fear and the resulting indignation are then used to pass measures that are incoherent, mean-spirited, and short-sighted. Any short-term political gain achieved through scapegoating immigrants, refugees and minorities comes at a high cost. It has undermined the rule of law and our multicultural and humanitarian tradition. And it will take at least another decade to undo the damage.