Our society and country have used immigration as a tool for nation building since Europeans first established their presence in North America. Canada in its current form is defined as a settler state where immigration has been on the forefront of both nation-building and modern economic development initiatives (Paquet, 2020). Immigration is formally a shared jurisdiction between federal and provincial governments as laid out in the British North American act (BNA) now referred to as 1867 Canadian Constitution Act. It is one of the two powers specifically outlined within the Canadian constitution as shared between federal and provincial governments, with agriculture being the other.
Canada’s immigration policies revolve around the importance of establishing strong policy levers and political influence to address multiple relevant issues within the governments that form our federalist governance structures. Governments in Canada have relied on immigration and integration as key factors for nation building. This will be discussed further by evaluating Intergovernmental Relationships (IGR) between federal and provincial governments. In this paper I will also be addressing key issues and challenges presented with the management and administration of immigration policies. In doing so, I will present a background review of relevant legislation followed by discussion of the evolution of immigration policies and an overview of the power-dynamics within this policy area. This will be followed by discussions on devolution of authority, asymmetrical federalism, and some of the policy challenges. Finally, I will be presenting an outline of possible policy solutions to address challenges and solutions to foster stronger intergovernmental collaboration.
Background and Relevant Legislation
Immigration as previously mentioned is a shared jurisdiction as defined by the constitution act 1867. Powers are shared between federal and provincial governments concurrently. “Section 95 of the original 1867 BNA Act states that provincial legislatures have the power to make immigration laws as they pertain to the province and that ‘the Parliament of Canada may from Time to Time make Laws in relation…to immigration into all or any of the provinces’” (Paquet, 2020). The Canadian parliament and the federal government have ultimate authority in crafting immigration legislation, with federal law taking priority over provincial legislation (Krostov, 2008). Although immigration policy making is shared between provinces and the federal government the federal government took the lead in creating legislation surrounding immigration, particularly due to the costs associated in implementing and enacting legislation in this policy area.
In analyzing power dynamics between relevant actors, it is also important to identify legislation that encompasses this policy area. Other relevant legislation which will be used in the assessment of immigration policy within the Canadian federalist structure include the following:
- Section 91 (25) of the constitution act 1867 gives the federal government exclusive powers over naturalization of foreign nationals, with permanent residency a pathway towards naturalization (Kostov, 2008).
- Section 132 grants the federal government exclusive authority over external relations (Kostov, 2008).
- Section 6 (2) of the Canadian Charter of Rights and Freedoms which was inserted into the constitution in 1982 also grants all citizens and permanent residents the right to move and settle in any province they wish (Kostov, 2008).
- Immigration and Refugee protection act of Canada (IRPA) also allocates majority of the immigration powers and responsibilities in Canada. This framework legislation empowers the government, through Governor in Council, to enact regulations related to immigration. IRPA recognizes the importance of a collaborative approach to immigration policy, with the input of provinces in the process (Paquet, 2020).
These above legislations create complexities and challenges for governments in maneuvering legislative authority and policy levers within this important policy area. These create challenges in the management and administration immigration through a federalist structure where collaboration is made necessary by legislation.
Devolution
Proponents of devolution argue on the importance of collaborative federalism as an important practice in the management of our multicultural society. In this section a review of relevant players, important events, and some of the key issues around the creation effective immigration policies involving provincial governments is presented.
This section will be further divided into two main categories, with the first part revolving around the relationship between Quebec the federal government. The second section will include the IGR within the rest of Canada including some of the relevant policies that has resulted in devolution and power-sharing relevant to this jurisdiction.
Quebec – a distinct society
Quebec’s role in immigration policy has increased gradually, intertwined with its overall ambition of strengthening Quebec government and society as a path to increased sovereignty. Sub-state nationalism was at the forefront of Quebecois nation-building and self-determination activities which has emerged around the 1960’s (Béland & Lecours, 2006). Immigration was also seen as an important lever for development while maintaining Quebec’s francophone identity. With the increase in English-speaking newcomers arriving in Canada and in Quebec, governments in Quebec saw immigration policy creation as pathway and opportunity to exert control to manage this phenomenon (Paquet, 2020).
Starting in 1960’s governments in Quebec began to pressure its federal counterparts by demanding more control over immigration within its territory. This led to major bi-lateral agreements between the provincial and federal governments. The first of the four main agreements are as follows: 1971 – Lang-Cloutier Agreement, 1975 – Andras-Bienvenue Agreement, 1978 – Cullen-Couture Agreement, and finally the 1991 Canada-Quebec Accord (CQA). The first three agreements have been named after the corresponding federal and provincial ministers/politicians in charge of immigration. It is also important to note that only one of the four agreements mentioned were brought forth by the Parti Quebecois with the rest put forward by the provincial Liberal party in Quebec (Kostov, 2008).
During the Meech-Lake Accord Quebec’s demands included increased control over immigration policy. The CQA was a concession offered to Quebec despite the failure of the accord. In this bi-lateral agreement between the federal and provincial governments Quebec was given increased say in the selection of immigrants destined for the province. CQA also provides for federal transfers related to immigrant settlement services amounting to $334 million in 1991-1995, increased to $490 in 2018 (Kostov 2008, Paquet 2020). The province is in charge of selecting about 70% of all immigrants entering its territory (Paquet & Xhardex, 2020).
The Rest of Canada
Immigration as a shared jurisdiction has been an important concession for the formation of Canada with powers being shared between the federal and provincial governments as an important precursor to confederation. The federal government has always been a central actor in immigration activities and policy making initiatives, while provincial interest in immigration policymaking has waxed and waned since confederation. More recently provinces have expressed increased interest in immigration policy development stemming with their interest primarily rooted in the positive economic impact of economic immigration and population growth (Paquet 2020). “Having a say in ‘who comes in’ could make regions less concerned about the perceived threats associated with immigration or change the direct orientation of regional immigrant integration policies” (Paquet & Xhardex, 2020). The rise of the Provincial Nominee Program (PNP) is directly related to provinces looking to immigration as a pathway for economic development. “Immigrants coming to Canada under the PNP will…be selected for the impact they can have on Canada’s economy” (Schertzer, 2015).
Outside of Quebec within the rest of Canada the federal government retains its role in immigrant integration initiatives with various departments and agencies being involved in the process. It is also enshrined in the constitution that federal law is paramount in cases of conflict between governments (Paquet, 2015). Some provincial agencies (through existing labour market agreements) are also providing funding that helps support immigrant integration initiatives as part of their retention initiatives (Jeram & Nocolaides, 2019).
Asymmetrical Federalism
“Canadian federalism is shaped by, and functions as, a response to structural cleavages of Canadian Society, political forces, and political institutions including the Constitution” and these factors are especially visible in the management of immigration policies (Paquet 2020). Shared governance and collaboration are central in our federalist system, however recent demands for increased controls creates consequences within Canada outside of the Canada-Quebec relationship.
In the case of Quebec more control is given to the province compared to the rest of Canada through the CQA. This agreement “authorized Quebec to perform a key role in determining the proportion of immigrants that it would receive annually. Each year by April 30, Canada had to give Quebec its plan for immigration levels for the following year, and the provincial government had to then return its plan by June 30 to the federal government” (Kostov, 2008). This compared to the limited influence provinces have over PNP intake. Although PNP intake numbers is agreed-upon collaboratively the federal government is ultimately in-charge of determining those numbers. The federal government still has the final say in matters related to immigration having the power to ultimately issue visas and residency permits. This compared to the authority given to Quebec, where the province selects 100% of its economic immigrants (Paquet & Xhardex, 2020). In addition, immigration related agreements between federal and provincial governments (not including CQA) can be modified or cancelled by either government involved, demonstrating federal dominance (Paquet, 2020).
Although noble in its intentions in solidifying and strengthening regional identities within our federation the devolution of immigration powers to provinces creates challenges related to inequality. Creating a multi-tier system within the realm of immigration weakens Canadian nation-building agendas and may negatively impact our national identity. Increased and unequal devolution of immigration policy to sub-national states opens the dilemma of creating asymmetrical federalism within Canada.
Policy Related Issues
Aside from the possibility of promoting asymmetrical federalism, immigration as a policy area also encompasses many related issues as identified below.
Mobility rights and multi-tiered entry systems
Provincial Nominee Programs and Quebec’s immigration policies create another form of challenge in the realm of immigration and settlement. Provinces have been empowered to choose economic immigrant, and in the case of Quebec all types of immigrants. In doing so, they are creating multi-tier approaches to immigration qualification systems (Kostov, 2008). This creates issues related immigration qualifications, with some provinces allowing for lower skills thresholds when it comes to qualifying for permanent residency.
Provinces (including Quebec) also create a false impression on economic and provincially nominated migrants on the mobility restrictions imposed by provincially led immigration programs. This could be particularly challenging to enforce given the charter enshrined mobility rights granted to all permanent residents. Multiple immigration pathways also result in unintended consequences of immigrants entering Canada without intending to stay in their nominating province. Subsequently it creates further challenges in population distribution within our country which provincial immigration regimes were meant to curtail.
Settlement
The CQA of 1991 provides for transfer payments specific to immigration which also includes significant funding for settlement activities. “The fact that the government of Canada cannot promote in Quebec one of the official languages in Canada-English-makes it more difficult to ensure that Quebec immigrants are provided with the same quality of services as immigrants in the rest of Canada (Kostov, 2008). Multiple types of funding and service providers including government and non-profit agencies providing settlement services to immigrants creates the possibility inequality between services received in Quebec vis-a-vis services received in other jurisdictions. Other provinces have expressed dismay over this asymmetrical approach and have started demanding stronger support (through funding or stronger bi-lateral agreements) related to settlement services (Paquet, 2020)
Immigration as solution to other related issues
Provincial immigration regimes and interventions have been used as part of economic development and labour market initiatives both at the provincial and national levels. Business and immigration and investor programs have also been used by both levels of governments within Canada to attract foreign-direct investment in their respective territories. Bureaucrats have been using immigration as a solution to other types of challenges including labour-market and skills related issues, population growth initiatives, and macroeconomic management. These bureaucrats “supported the rise of immigration to the political agenda, helped craft policy solutions that rendered provincial intervention in immigration more realistic and responsive to local needs, and adapted the experiences of other jurisdictions to their provinces of employment” through the PNP and similar programs (Paquet, 2015).
Regional collaboration
More recent immigration policy development revolves around strengthening regional integration and labour market outcomes as part of this policy area, including with the introduction of the Atlantic Immigration Program (AIP). Relevant findings from the federal immigration agency states that “overall, the expected outcomes for the Pilot [AIP] are being met. The AIP is helping employers in Atlantic Canada fill labour market needs, particularly in technical occupations and skilled trades (NOC B) and intermediate level occupations (NOC C)” (IRCC, 2021).
Conclusion
Framers of the constitution believed in the importance of creating shared jurisdiction in immigration policy while understanding the importance of immigration as a force for economic development. The significance of this policy area in the realm of nation-building stems from related activities as a pre-cursor to present-day Canada. Federal leadership in immigration became the norm after 1867 primarily due to costs and political consequences associated with provincial involvement in immigration. As our federalist system of governance evolve it is important to highlight the result of IGR as a pathway for increased collaboration between actors in this policy area (Paquet 2020). “Since Confederation, there has been the potential of multi-level cooperation in the governance of Canada’s borders in relation to international migration, but it has only been in recent decades that this potential has been explored” (Gunn, 2020).
Multiple immigration agreements between federal and provincial governments including the CQA creates for an asymmetrical federal system with respect to immigration. “The asymmetrical system formed as a result of these agreements would likely become totally unmanageable for the federal government if one or two additional big provinces were to demand the same powers in the immigration process” (Kostov, 2008). Creating multiple immigration regimes within our federal system also creates irregular pathways for immigration. Where full control is given to Quebec for setting is own immigration policies the federal government imposes language requirements for other provinces as a measure of control (Schertzer, 2015). Concerns on funding related to settlement services pose another layer of challenge that inhibits successful collaboration between governments and curtails potential for innovative policy development.
Based on my analysis of the possible arrangements between the federal and provincial governments (including CQA) continuing the multilateral approach to immigration policy where further devolution in the control of immigration selection is granted to individual provinces. To address unequal access to settlement services there should be a formula allowing for transfer payments to provinces to manage settlement support services. This would allow for provinces to develop settlement related policies in-line with their other objectives which may include labour-force development. The federal government must retain complete control over visa and entry related issues (including security reviews) and minimum language requirements in both official languages to create uniform policies. This would prevent skirting of existing minimum-language credentials.
Creating innovative solutions including a stronger temporary residence pathway towards immigration may also address challenges related to regional retention. Addressing immigration from a regional perspective like the AIP also creates multilateral agreements involving provinces in the creation and administration of policies related to immigration. For a relatively young country such as Canada, immigration plays a vital role in the creation of a pluralistic society while preserving its own identity. Innovative policy solutions may create pathways for stronger intergovernmental collaboration while maintaining relative equality between multiple levels of governments to promote Canadian nation-building.
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