Mandatory Language Testing Imposed by Canada’s Immigration Department is Illegal

By Author: Admin | July 26, 2010

The Toronto Star reported that the June 26 2010 instructions from Canada’s Immigration Minister for potential skilled workers included mandatory language testing through the International English Language Testing System (IELTS) and Test d’évaluation de français (TEF).

The reader comments to the article were highly polarized, owing to the inherently controversial nature of (mostly) visible minorities immigrating to wealthy countries dominated by European or British descendants.  It also didn’t help that the would-be immigrant selected to complain about the testing was a Harvard graduate and a practicing lawyer named Dodi Robbins.  The privileged circumstances of Ms. Robbins elicited no sympathy from any commenters who were of the view that she could afford to take the test and, since she is fluent in English, taking the test is not that big a deal.

Other comments were to the effect that Canada is mostly an English speaking country and testing should be required either for economic reasons, or to preserve the English-based identity of Canada.  One commenter correctly acknowledged that the mandatory testing was only for skilled workers (and not persons sponsored as spouses or parents). Thereupon, he or she demanded all immigrants of this class pass an English test.

Sensitive readers of the comments may be of the view that Canadian xenophobes can be more open about their views if a news item deals with tightening immigration to Canada; restrictions of any sort on  Canada’s immigration system would in their eyes be an improvement, even if it is the result of the arbitrary exercise of government power.

Skilled workers would presumably need some degree in one of Canada’s official languages, depending on the job being performed in Canada; an Indian chef in an Indian restaurant would need a minimal amount, while a marketing consultant who is targeting Fortune 500 companies would have to have mastery over reading, writing, speaking and analyzing abstract concepts in the English and/or French language.

Some comments talk about how many Canadian-born citizens would fail the English test, one comment even calling for such Canadian born citizens to be deported to Sweden. This misses the point; much of case law indicates that immigration to Canada is a privilege, and the skilled worker program is one manifestation of the section 3(1)(c) of the Immigration and Refugee Protection Act (“IRPA”) : “to support the development of a strong and prosperous Canadian economy.”

The main issue is whether or not mandatory language testing is illegal.  A plain reading of the law indicates that it is.  The option of an applicant for Canadian immigration to demonstrate language ability by means other than a language test is clearly set out in the Immigration Refugee Protection Regulations (r. 79(1(c)):

79. (1) A skilled worker must…
(a) have their proficiency in those languages assessed by an organization or
institution designated under subsection (3); or
(b) provide other evidence in writing of their proficiency in those languages. [Emphasis Added]

The authority for the Minister to issue instructions for immigration to Canada is set by s. 87.3(3) of IRPA, and it is related to the mundane task of efficient processing of immigration applications (e.g. processing priorities, quotas and what to do with disposed files).  This is apparent below:

87.3 (3) For the purposes of subsection (2), the Minister may give instructions with respect to the processing of applications and requests, including instructions
(a) establishing categories of applications or requests to which the instructions apply;
(b) establishing an order, by category or otherwise, for the processing of applications or requests;
(c) setting the number of applications or requests, by category or otherwise, to be processed in any year; and
(d) providing for the disposition of applications and requests, including those made subsequent to the first application or request.
Nothing in the above section can accommodate the authority to impose mandatory language testing given Regulation at 79.(1) (cited above). I thus predict that the requirement for mandatory testing will be deemed illegal by the Federal Court when this issue inevitably gets placed before it. In the meantime, however, I predict that many will simply grumble and take the test – the advantages to the individual applicant in becoming the test case leading to the legal precedent being few and far between.

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