What makes Canada’s immigration system so complex?

Back in 2021, I was among those interviewed by The Walrus for their feature entitled How Immigration Really Works.

The feature highlights just how complicated Canada’s immigration system has become. I will take the liberty of going a step further by claiming that Canada has the world’s most complex immigration system.

In this article, I will break down the factors that cause the complexity. But first, some context is required.

Today, Canada offers well over 200 permanent and temporary resident pathways. Keeping a tally is a fool’s errand as the pathways change almost weekly, and often with little notice, or none at all. I’ve tried, before sadly realizing near the end of the exercise the list was already out of date.

But the system wasn’t always this complicated. Consider that up until the late-1990s, Canada offered just 8 economic class immigration pathways. They were the Federal Skilled Worker Program, Immigrant Investor Program, Entrepreneur Program, Self-Employed Program, and four additional Quebec programs which mirrored these federal ones.

Then, in 1998, Canada introduced the Provincial Nominee Program (PNP) as a permanent option following a successful pilot. The PNP has since led to over 100 additional immigration options entering the fold.

The federal government and provinces now offer over 120 economic class immigration pathways. This includes the aforementioned pathways and additional federal ones that have been introduced over the past decade such as the Federal Skilled Trades Program, Start-up Visa, Atlantic Immigration Program, and various pathways for skilled refugees, caregivers, the agri-food sector, rural and northern communities, Hong Kong and Ukrainian nationals, among others.

And we haven’t even begun to count family, refugee, and humanitarian class immigration pathways, plus the various work permit, study permit, and temporary resident visa (TRV) pathways.

Now, lets take a look at the drivers of the complexity. In broad strokes, they are:

• The Constitution
• Canada’s diverse policy objectives
• Canada’s diverse constituencies
• Administrative issues

Reason #1: Section 95 of Canada’s Constitution Act, 1867

Section 95 of Canada’s Constitution Act, 1867 defines immigration as an area of shared federal-provincial jurisdiction, with federal law paramount. Immigration was so important to the two levels of government upon Canada’s founding that the Constitution outlined it as one of just three areas of shared jurisdiction, along with agriculture, and pensions (however subsequent legislative reform and court rulings have extended shared jurisdiction to other policy areas).

Only the federal government has control over the entry of foreign nationals into Canada.

Meanwhile, it is understood the Constitution permits the two levels of government to engage in immigrant attraction (i.e., recruiting newcomers), selection, and settlement. And here is precisely where things get messy. We’ve discussed already how the involvement of the two levels of government has led to the ballooning in visa pathways. The same can be said on the settlement front. Each year, Immigration, Refugees and Citizenship Canada (IRCC) spends some $2 billion across the country including in Quebec on settlement programs. These programs offer English and French training, labour market support, and a host of other supports to help newcomers succeed. In addition, the provinces fund similar programs of their own. The catch is there is no system in place for the two levels of government to track who is doing what, and so we have the same issue of duplication with respect to federal-provincial settlement programming as we do with federal-provincial visa programming.

Reason #2: Canada’s diverse policy objectives

Following the Second World War, the federal government announced Canada would look to welcome immigrants to strengthen the economy, reunite families, and to provide humanitarian assistance. These comprise the three pillars of Canada’s immigration system to this day.

From these three pillars we have seen a significant growth in permanent and temporary resident pathways to reflect the broadening of Canada’s immigration policy objectives.

For example, with respect to francophone immigration, Canada initially offered the aforementioned federal and Quebec economic class pathways to strengthen the country’s francophone fabric. We have since seen provinces and territories, such as New Brunswick, Ontario, and the Northwest Territories launch francophone streams of their own. But that’s not all. We now also have temporary resident options for francophones, such as the Francophone Mobility Work Permit and the Student Direct Stream (SDS), of which residents of Senegal and Morocco are eligible.

The growth of Canada’s work permit pathways over the past 25 years is a different beast of its own. Here the growth has reflected not just diversifying economic objectives, but also family and humanitarian ones too. Canada now has 16 free trade agreements which cover 61 per cent of the global economy and these agreements contain worker mobility provisions which have increased the number of pathways for foreign nationals to work in this country. Canada has also expanded work permit pathways to advance social objectives. We now issue work permits to eligible family members accompanying those seeking to study and work in Canada. We also issue work permits based on humanitarian need, such as to asylum seekers, and as another example, to Ukrainians since the onset of the war with Russia in 2022.

This segues nicely into the next major cause of complexity.

Reason #3: Canada’s diverse constituencies

So many actors in Canada have an interest in immigration, which adds to the complexity of the system.

Let’s start by looking at diaspora groups. Canada welcomes newcomers from all corners of the globe, resulting in nearly every single nation on earth having a diaspora here. This in turn, leads to developments around the world usually implicating Canada in one way or another. Whether it is a natural disaster such as an earthquake, hurricane, or tsunami, or political strife or war, Canada is drawn in due to a mix of its humanitarian disposition and pressure from diaspora groups, often leading to the introduction of special immigration measures.

Examples abound, including recently with respect to the likes of Afghanistan, Colombia, Haiti and Venezuela, Hong Kong, Iran, Lebanon, Morocco, Palestine and Israel, Sudan, Turkey and Syria, Ukraine, and more. Canada’s response often results in the introduction of new temporary pathways for nationals from affected countries and different rules altogether, rules which are typically simpler to make it easier for those in need to go through the Canadian visa process more quickly.

But there are also other prominent constituencies with influence. They include colleges and universities, employers, sectors, communities, and more.

The higher education sector is often pressuring federal and provincial governments to make the student visa process more efficient in support of an industry which contributes over $20 billion to Canada’s economy each year. As an example of the complexity here, Canada offers two broad pathways for those seeking a study permit: a normal one, and an expedited one, the SDS, which is only available to residents of 14 eligible countries. During the pandemic, higher education lobbied IRCC to allow distance learning to count towards the coveted Post-Graduation Work Permit eligibility, which in turn contributed to a significant increase in international student arrivals over the past few years.

Employers and sectors are also constantly advocating for more efficient permanent residence and work permit pathways to help address their workforce needs. Canada now offers a special work permit pathway for the tech sector called the Global Talent Stream, plus various dedicated immigration and work permit streams for the agri-food sector, a sector which projects to have over 100,000 job vacancies by 2030. Health care, construction, the skilled trades, are examples of other sectors and occupation categories with special pathways.

Regions and communities also want more immigration, resulting in the launch of more pathways on top of existing ones. We now have the Atlantic Immigration Program (AIP), which is run by the federal government, and which operates next to the PNP streams operated by the four Atlantic provinces. We also have the Rural and Northern Immigration Pilot (RNIP), which is also run by Ottawa, next to the various PNP streams operated by provinces with communities who participate in the RNIP.

The political benefits for elected officials to cater to various constituencies on immigration have become so profound that it largely incentivizes them to make the system even more complex. Both at the federal and provincial levels, catering to diaspora communities and key groups such as employers is key to winning votes and power. It is much easier for federal and provincial governments to introduce more pathways, temporary measures, and exemptions to appease constituencies rather than to deny requests or consolidate the immigration system. Going back to the AIP and RNIP as examples, it would have been more efficient for the federal government to give the provinces more selection spots under the PNP to increase immigration to Atlantic Canada and rural and northern communities. However, it was more politically expedient to introduce new programs, managed by the federal government, so elected politicians can take credit for supporting economic development in said communities.

The additive nature of the immigration system makes things more expensive for government and more confusing for applicants, but it is also the reality of living in a democracy where immigration is so important to the fortunes of politicians.

Reason #4: Administrative issues 

Between the launch of the Federal Skilled Worker Program in 1967 until 2008, Canada had a very predictable way of managing economic class immigration applications in particular, and other application categories as well. Essentially we operated a first-come, first-served model to processing visas, which is fairly self-explanatory. Applications would come in, and so long as you met all the criteria, your visa would be processed.

But the federal government, and then the provinces, found this model to be untenable in the face of unprecedented demand for Canadian visas. They didn’t have enough spots available plus the resources to process every single application. They also argued processing on a first-come, first-served basis was not in Canada’s best interests, since we were not prioritizing applications that could best advance our policy objectives. Hence, in 2008, the federal government introduced Ministerial Instructions (MI), enabling the federal immigration minister to instruct IRCC which applications to prioritize.

The most notable example of this is the Express Entry system, which is the main way the federal government processes economic class immigration applications. Candidates still need to meet certain criteria to be eligible, but then IRCC gets to choose who to invite based on its policy priorities. The provinces have adopted similar models. It’s important to note this dynamic model operates in parallel with first-come, first-served models which both the federal and provincial governments continue to maintain. But from a visa applicant perspective, you now not only need to navigate over 120 different options, but also need to figure out what the processing model is for each option.

The discretionary approach also carries over to family class sponsorship, with IRCC holding a lottery each year for the Parents and Grandparents Program, as well as draws for International Experience Canada, a working holiday visa for youth from participating nations.

Canada’s evolving policy priorities and high demand often result in updated processing instructions to IRCC, as well as Employment and Social Development Canada, and Canada Border Services Agency on how to assess applications and foreign nationals who arrive at the border. IRCC publishes these instructions as a courtesy to the public. Canadian civil servants have always had tremendous discretion in the visa process. What is different today, however, is the breadth of the pathways, rules, and exemptions in place, which are confusing for all stakeholders alike, and in the case of the civil servants, often results in inconsistent decision-making and also special measures to process applications more quickly. This observation is not meant to blame government officials, but rather aims to show the complexities of the system fuel a self-perpetuating cycle of more uncertainty for applicants, more work for government, and more complexity. Applicants will often apply again if they believe they were unfairly rejected, which adds to the volume of applications, and need for government to update their processing instructions, creating a new set of rules applicants need to adhere to.

As an example, Canadian immigration law recognizes the concept of dual intent, whereby it is legitimate for a temporary resident applicant to openly acknowledge to civil servants their desire to apply for permanent residence once in Canada. However, stakeholders pointed out that in practice, applicants indicating this desire would often by penalized by having their temporary resident applications rejected. This, in turn, led to IRCC updating their processing instructions noting to their visa officers to be more tolerant towards candidates with a dual intent, although IRCC decision-making here remains inconsistent.

This never-ending cycle of shifting goalposts results in even more work for governments, such as through more Access to Information and Privacy (ATIP) requests, and more litigation by Canadian immigration lawyers seeking remedies for inconsistent or unfair decisions by civil servants.

I’ll also note another administrative issue creating complexity: the two levels of government often have duplicative requirements. Rather than taking stock of existing processes, it is common for applicants to have to submit similar documentation and pay two sets of fees to have one visa application processed. We do not have centralized intake systems where candidates can upload their applications onto one portal accessible by both levels of government.

Can we ever expect Canada’s immigration system to become more simple?

Canada now has so many immigration objectives it wants to achieve that it’s going to be extremely difficult to revert to a more streamlined system that is more efficient and cost-effective for government to manage and easier for newcomers to navigate.

Ideally at some point, however, we do consolidate programs, policies, and processes which would benefit all stakeholders alike. A major benefit would be reduced costs for government since they would not need to expend as many resources to operate duplicative programs and processes.

While this article has focused on the shortcomings of the complexities, it’s also important to point out the benefits. We now have an immigration system that looks to benefit more constituencies. We do not want to return to a time where immigration largely benefitted just Ontario, Quebec, and British Columbia. From a newcomer’s perspective, it is also beneficial to have more doors available to enter Canada. Even if one door looks shut, there may be another one which is more viable. The diversity of newcomers yields similar benefits to Canada as it does in other areas, such as to employers or even sports teams. You want people with different skillsets to complement one another and create a stronger whole.

What do you think of the system? Leave your comments below.