Q&A WITH AUDREY MACKLIN: EMERGENT TRENDS IN CANADIAN IMMIGRATION POLICY

INTERVIEW BY LORETTA HO AND HARBI NATT
December 12, 2012

Note: Professor Macklin also has published an overview on recent Canadian immigration policy in The Guardian:
“European politicians envy Canada’s points system for migrants. But how well has it worked? Canada’s Conservative government is, ironically, now adopting European and Australian policies that make citizenship harder to get and easier to lose” (24 March 2015)

THROUGH A HISTORICAL PERSPECTIVE, WHAT DO YOU THINK ARE THE MOST IMPORTANT FEATURES OF CANADA’S IMMIGRATION POLICY?

Macklin

Historically, the Canadian immigration system has been admired around the world. The nucleus of the system has been a reliance on permanent immigration whereby Canada sought people who would come, settle permanently, and contribute economically, culturally, demographically, and socially. Underpinning this nation-building mission was the idea that people would bring their families; this would foster settlement and integration because people flourish when they live with their families. Additionally, services that family members could provide, such as childcare, would help the economically active to be even more productive. In short, Canada has promoted robust human capital economic immigration along with a family class program. In addition, we have a refugee stream that recognizes Canada’s international obligation to provide a safe haven for those facing persecution.

One problem of this centralized system is that it has always been backlogged. Furthermore, with respect to the economic class, it is difficult to ensure that people who arrive in Canada with skills and credentials are, in practice, able to work in Canada in accordance with their skills and qualifications; this “brain waste” phenomenon is manifested by the “taxi-driving doctor.”

GIVEN THIS BACKDROP, IN YOUR OPINION, WHAT ARE THE EMERGING TRENDS WITH THE NEW MODEL?

That’s the backdrop to immigration in Canada, but this historical picture is rapidly giving way to a different model. Three emergent trends that I would highlight are privatization, temporalization, and devolution.

LET’S BEGIN THEN WITH PRIVATIZATION; WHAT EXACTLY DO YOU MEAN BY THE PRIVATIZATION OF IMMIGRATION?

Historically, the federal government took responsibility for the selection and admission of newcomers, delegating the implementation of many settlement and integration functions to civil society for reasons of efficiency and effectiveness. But now, with privatization, we see more and more authority for the initial selection of the economic class being given to private employers, and to some extent, universities. If a foreign national is able to find employment for two years, that person is then eligible to become a permanent resident (PR), and this bypasses the points system and its criteria. The same is true for nationals who have been admitted to Canada as university students and obtain a graduate degree. If they are able to find employment for two years after graduation, they are eligible for this fast track to the PR class. In principle, privatization can supplement the points system, helping to incorporate people into the labour market. There are downsides, however, as long range decisions about immigration are delegated to private actors who may or may not act in the public’s interest.

TELL US ABOUT THE TREND OF TEMPORALIZATION, WHICH SEEMS RELATED TO PRIVATIZATION.

The notorious European guest worker programs of the 1950s, 60s, and 70s proceeded from the view that immigrants are a temporary and dispensable evil needed to fill designated gaps. Canada is increasingly moving toward a guest worker model for low-skilled and unskilled migrants.

For workers considered highly skilled or professional, we have a program that permits them to enter Canada as “guest workers” but transition from temporary status to permanent status via the Canadian Experience Class. This represents a shift in selection from what I would call the CV model to the audition model. Under the points system, you submit your CV and are measured against a points system which looks at your qualifications. In the audition model, you work for a year or two, and if you work out okay, you are moved to permanent residency.

There are advantages and disadvantages to each model but the important point is that even if you prefer the audition approach, eventual enrolment as a PR will only be available to a small minority of those currently admitted as temporary foreign workers. Thousands of others in this position will never have access to the possibility of transitioning, even though their work is in chronic demand. Essentially, we have a system that says, “You can come in as a temporary foreign worker. If you qualify for the Canadian Experience Class, then maybe you can transition to PR. But if you don’t, we will cap your presence here at four years and you must leave Canada thereafter because we don’t want you to grow roots.”

The idea is to have a revolving door of migrants with temporary status, not because the work is temporary, but because we want people to remain temporarily. Inevitably, some segment of those workers not authorized to apply for permanent residency will remain anyway because their employers want to continue employing them, they have formed meaningful connections to Canada, and they have family members at home who are dependent on the remittances sent to them. These workers will lose their legal status and enter the shadowy domain of people without legal status, thereby becoming what is polemically referred to as an illegal immigrant.

The end of the first four year period will be May 1, 2015, at which time, Canadian law will suddenly manufacture thousands of so-called illegal immigrants. They will have gone to bed the night before as productive, contributing migrants and wake up as “illegals.” The implication is devastating socially and economically for Canada and for the people involved. We will have a vulnerable population with no voice and no social rights, and who, in the language of many people who talk about illegal immigrants and non-status workers, work hard and work scared.

Guest worker programs inevitably fail, but despite historical evidence, Canada appears to be shifting towards this system. For the first time in 2008, Canada admitted more people as temporary foreign workers than economic immigrants, signalling an important shift towards what I call the temporalization of immigration and a normative shift away from Canada as a country of immigration.

WHAT IMPACT DO YOU THINK PRIVATIZATION AND TEMPORALIZATION WILL HAVE ON THE ECONOMY, GIVEN THE INCREASING NEED FOR LESS SKILLED LABOUR IN CANADA?

A perennial concern of any temporary worker program is that employers will bring in foreign workers whom they can pay less and who will work harder than similarly situated PRs, thereby engaging in the suppression of wages and working conditions. Work for foreign workers is precarious, and because they know their immigration status depends on pleasing their employer, they are often more compliant. Government programs for temporary workers are meant to offset the risk by requiring that employers demonstrate that they have tried and failed to find qualified Canadians and PRs to do the work and that they are offering wages and working conditions that conform to prevailing standards.

Two issues arise. First, the government has loosened the requirements for employers to demonstrate that they meet these criteria. Second, in the latest budget, the government has authorized employers to pay foreign workers 15 percent less than the prevailing wage; in other words, the government is explicitly authorizing employers to use foreign labour to undercut Canadian labour and to encourage wage suppression. There is a wrinkle, however: the wages that the employer offers may not be less than those of any Canadian or PR currently employed by that employer in that occupation. But this means the employer can still pay 15 percent less than the prevailing wage if he/she finds a Canadian or PR to do the work at that wage. If such a person is employed there, the employer can bring in foreign workers. Additionally, the practice will drive down wages across the board; Canadians will be forced to take this work or have their EI cut off. Finally, niches in which only foreign workers will work will be created because Canadians won’t work for those wages or in those working conditions. Essentially, the government is providing qualified employers with a subsidy in the form of up to 15 percent savings in labour costs. This policy, which I consider a bad one, pleases employers but is economically and socially unwise and encourages a backlash against immigrants.

NOW GOING BACK TO THE THIRD TREND YOU HAD MENTIONED, CAN YOU TELL US A LITTLE ABOUT THE DEVOLUTION OF IMMIGRATION?

Over the years, provincial nominee programs have appeared whereby instead of having applications made to the Canadian government, the provinces are allowed to nominate candidates for permanent residence. This has led to provinces selecting immigrants according to their own criteria; these respond to the particular needs of a province and are not harmonized across provinces. Again, the idea has some merit. For example, Manitoba historically has not benefited from immigration to the extent that it wants to; it has developed assertive and innovative programs to attract and retain immigrants and is doing much better than it had in a system whereby CICs chose immigrants and disposed of them where they saw fit. Other provinces have different needs and priorities, and a provincial nominee program can be responsive to that.

IF INDIVIDUAL PROVINCES HAVE SOUGHT GREATER CONTROL OVER IMMIGRATION, IT SEEMS AS THOUGH THEY THINK IT IS A GOOD THING. ARE THERE DOWNSIDES TO THIS DEVOLUTION?

While there are advantages to devolution, there are also some disadvantages. One of the obvious limitations of the provincial program is that while provinces may be able to attract people and run their own programs to admit people, once a person is a permanent resident of Canada, he or she is free to move wherever he or she wants anyway. So, in fact, these programs can’t legally regulate where people settle. The federal government might have tried to play a coordinating role by introducing minimum criteria for PNP programs. Instead, it has retracted the authority given to the provinces, leaving them in some confusion about their ability to run their programs successfully. This flux breeds uncertainty for the provinces, employers, and prospective immigrants. Recently, the government even canceled the existing list of 280,000 workers waiting for acceptance, saying, “We know you have been waiting for several years, but the line is too long and so we are not going to process your application. We’re starting new lines somewhere else, new queues with different criteria, most of which require you to have an employer and job offer in hand. You’re free to get into those other lines if you want.” It’s very difficult for the government to do things like that while sending out a serious message to prospective immigrants that Canada wants them to come.

UNDERLYING THESE RECENT TRENDS SEEMS TO BE A DIMINISHED SENSITIVITY TOWARDS THE HUMAN RIGHTS OF IMMIGRANTS. CAN YOU GIVE US SOME EXAMPLES OF THIS?

One example of a human rights violation is found in the admission of spouses or partners. Under the old system, if you were a citizen or PR of Canada and wanted to sponsor me as your spouse or partner, you would apply to sponsor me and agree to reimburse the government if I go on social assistance or if we divorce. If my application is accepted, I will enter as a PR of Canada. A divorce will not terminate my PR status, or the sponsor’s obligation to reimburse the government for social assistance. Recently, that system has changed. The government identified a problem that it called “marriage fraud,” whereby innocent Canadians and PRs were duped by foreigners who only wanted to marry them to get Canadian citizenship or PR status and then leave. Note that this is only one variation of marriage fraud: another is collusion between the partners. The first type of marriage fraud probably happens from time to time, but it is unclear how serious the problem is in comparison, for example, to the years and years of delay in family reunification due to bureaucratic inefficiency. Nevertheless, the government addressed this problem with a policy used by other countries, namely, granting the entering spouse conditional status for two years. If, during that time, the person leaves the relationship or the relationship ends, then the sponsor withdraws the sponsorship. The spouse loses his or her conditional PR status and has to leave. These persons are on probation for two years, after which time they are eligible to convert their status to regular PRs. In theory, this solves the alleged marriage fraud because it deters crafty fraudsters from coming to Canada if they have to reside with their sponsoring spouse for at least two years. I would like to make two points about the policy. First, other countries such as the US and UK have that practice but continue to complain about problems of marriage fraud. The policy does not solve the problem; it merely delays it. Second, this policy creates another problem: it makes spouses admitted on conditional status vulnerable to the power imbalance between them and their Canadian/PR spouses. The sponsor can use the threat of retracting the sponsorship and the consequent loss of status and deportation to abuse the spouse.

ARE THERE OTHER EXAMPLES OF HUMAN RIGHTS VIOLATION?

Another example of a human rights violation relates to refugees. Under the new immigration act amendment, Canada proposes to deter people who seek protection as refugees from coming to Canada by following the model used in Australia to prevent boat people coming from Afghanistan, Iran, and Sri Lanka. The government has granted the Minister of Public Safety virtually unfettered discretion to order automatic detention of asylum seekers for up to six months with no review. But Australia has taught us two lessons. First, the policy didn’t deter people from arriving. Second, it came with enormous human rights, social, emotional, psychological, and financial costs because of the incarceration of the asylum seekers, many of whom were already traumatized by their previous experiences. Ultimately, the vast majority of those who were detained, over 80 to 90 percent, were recognized as genuine refugees anyway.

One initiative of the Canadian government goes further than any other country; with no public consultation, no deliberation, and certainly no parliamentary debate, a recent decree has been adopted that denies refugee claimants access to healthcare, including emergency and lifesaving healthcare. The explicit goal of the government is to deter asylum seekers by denying them access to healthcare, based on the idea that they are here to exploit Canada’s healthcare system. But this comes with huge costs. When sick people can’t get timely medical treatment, they end up in emergency wards, and everyone knows that emergency care is more expensive than preventative care. So the federal government is simply shifting costs to hospitals and emergency room doctors who have an ethical obligation to treat patients.

WHAT IMPACT DO THE CHANGES TO THE REFUGEE BILL HAVE ON CANADA’S IMAGE IN THE WORLD AS A COUNTRY THAT WELCOMES IMMIGRANTS?

I think Canada still enjoys a positive reputation worldwide, but that reputation is being eroded as current practices and data contradict historic patterns. For instance, we hear repeatedly that Canada has one of the most generous refugee systems in the world and our acceptance rate is higher than any other country. Two correctives should be made. First, many European countries operate what might be called forms of complimentary protection which are similar to refugee status. When you examine complimentary protection, you find that European countries do not accept dramatically fewer refugees than Canada. Second, and perhaps more importantly, Canada’s acceptance rate in the last few years has dipped to around 38 percent. In contrast, the total refugee acceptance rate in the US is about 67 percent. Therefore, it is a myth that Canada’s acceptance rate is relatively high.

YOU HAVE BEEN HEAVILY INVOLVED IN THE OMAR KHADR CASE, WHICH ITSELF IS AN IMPORTANT ILLUSTRATION OF HUMAN RIGHTS VIOLATION. WHAT DO YOU THINK WE CAN LEARN FROM THIS CASE?

One thing we can learn is that the rule of law is more fragile than we thought. This is something that should concern all Canadians and not just people who have an opinion about Omar Khadr. The government has a legal, moral, and diplomatic obligation to repatriate Omar; not doing so flouts that legal obligation. I expect that the government has chosen a politically advantageous route, insofar as it has committed itself to a constituency that opposes Omar’s return. But rights are not a popularity contest. The idea that Omar’s transfer would be a risk to Canada is disingenuous on several levels. First, it is not consistent with the evidence about Omar that comes from qualified and reliable sources, including the US government. Second and more generally, the idea that Canada would be at risk from a person who would be incarcerated in a Canadian penal institution is ludicrous, or it tells us that the government doesn’t think that Canadian prisons are capable of protecting the public. If the penal system cannot protect us, then the government ought to say so and explain why. Finally, it’s absurd to think that Canada is better protected by refusing Omar Khadr’s transfer now and letting him stay at Guantanamo Bay for several years, at which point the US will deport him to Canada unconditionally. It seems obvious that it is in Canada’s interest that Omar have the benefit of education, rehabilitation, and reintegration programs supervised by the Canadian government than to have him dumped on the tarmac five or six years from now. (For more information on the Khadr case, see http://www.law.utoronto.ca/documents/Mackin/Khadr_summary-timeline.pdf).

HOW HAS THE GOVERNMENT ACHIEVED THESE POLICY CHANGES THAT SEEM TO VIOLATE HUMAN RIGHTS AND YIELD NEGLIGIBLE BENEFIT, GIVEN THAT THE PUBLIC DISCOURSE AROUND IMMIGRATION AND REFUGEES HAS TRADITIONALLY BEEN SO POSITIVE?

As a settler society, Canada has historically been more receptive to immigration and refugees than many other countries and this remains true. While certain elements in the populace with a hostile and suspicious view of immigrants have always existed, they have recently become more prominent. The changes in Canadian immigration policy that I’ve been describing are seizing, validating, and exploiting these undercurrents. For example, we seldom hear the government talk about refugees without the word “bogus.” Or as in the case of boat people from Sri Lanka, refugees are portrayed as a potential security threat. The more the government uses anti-refugee invective, the more entrenched this invective becomes in public consciousness. With respect to family immigration, the rhetoric of the marriage fraudster or the image of parents and grandparents as nothing more than a drain on health care resources encourages a view of family class migrants as illegitimate, as abusing the system, and as worthless. These negative images of newcomers are propounded repeatedly and forcefully and with enough success that when measures like arbitrary detention, suspension of the admission of parents and grandparents, even the denial of healthcare are introduced, the public is already primed to regard the targets of these policies as malevolent, undeserving, and risky people whose human rights or health should be of no concern to Canadians. I think it is extremely important to acknowledge the role played by the cultivation of this public discourse about non-citizens and how it prepares the ground for problematic policies.

WHAT DO YOU SEE AS THE WAY FORWARD FOR CANADA’S IMMIGRATION POLICY?

I fear that I have painted a negative picture of the government. But I do not want to be polemical. There is much to be said in favour of the Immigration Minister’s enthusiasm for attracting more people to Canada to make a positive contribution to our economy and our society. Nor is there any reason to oppose multiple or a range of policy instruments, each of which has its own advantages and/or disadvantages. However, I think it is important to take the laudable aspirations and measure them against evidence of what the policies actually do. If scholars and others can point to an obvious misalignment between a policy’s stated objective and its actual or likely impact, we need to bring their expertise to bear on public debate.Photo credit should go here

Professor Audrey Macklin

Audrey Macklin is one of Canada’s leading experts on immigration law, including refugee policy. She is Professor of Law at the University of Toronto and former member of the Immigration and Refugee Board of Canada. Her recent publications include a book entitled Cases and Materials in Canadian Immigration and Refugee Law; articles in journals such as International Migration Review, Refugee and Canadian Women’s Studies; and chapters in collections including Storied Communities, The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill and Engendering Forced Migration. Professor Macklin is a leading contributor to the founding of the Global Migration Institute at the Munk School of Global Affairs. In this interview, she provides a perspective on recent Canadian immigration policy.