I had an interesting consultation a few days ago and for the purposes of both recording my research but also to try and be a helpful resource for future applicants facing this issue. My understanding from the client, is it is increasing in this period of uncertainty within the tech sector and in the larger economy – so this scenario may replicate.
Before I begin, I want to give a shoutout (as we often do not give enough credit where credit is due) to folks on the CBA National Section Immigration Law Listserve. Specifically, Sana Khan and my brother, Stanley Leo for their discussions.
Case Study: An Applicant receives an Invitation to Apply (“ITA”) under the Canadian Experience Class (“CEC”) in February 2023. Their score is 30 points above the cut-off for the draw and they received 50 points for an arranged employment offer. They apply and submit their Electronic Application for Permanent Residence (“eAPR”) in March 2023 and the application is considered complete. In the beginning of April 2023, they are terminated from their position. They wonder both: (1) whether there is an obligation to update IRCC; and (2) will the job loss have any impact on their CEC.
One would assume, on the face, that a material change in circumstance to an application such as a loss of jobs that contributed would impact the application and would need to be disclosed. From a disclosure perspective, the loss of employment for a job that was given CRS points/arranged employment was based on seems like a reasonable thing to do – particularly to hedge against misrepresentation concerns.
However, there are some important nuances in how the CEC application may be impacted. Read ahead.
The Law and Policy
Usually I like to use the Immigration and Refugee Protection Act (“IRPA“) as the starting point but in the nuanced way the sections work, IRCC’s program delivery instructions (PDIs) here actually provide the best starting point.
It is written:
Section 11.2 of the Immigration and Refugee Protection Act (IRPA) includes a new authority that supports the Express Entry system.
Under section A11.2, an officer may not issue a visa to an applicant who did not or does not meet the Express Entry minimum entry criteria (MEC) or did not or does not possess the qualifications for which they received their CRS score at the time when
– the invitation to apply (ITA) was issued; or
– the e-APR was received by IRCC.
When reviewing an application, processing offices must determine if
– the applicant possesses the qualifications that they declared in their e-APR, as corroborated by the applicant’s supporting documentation; and
– when the applicant submits their e-APR, the information provided in their Express Entry profile has not materially changed to the degree that the applicant would not have been issued an ITA in that round of invitations.
Accordingly, officers should refuse an application under section A11.2 if it is determined that
– at the time of the ITA or e-APR, the applicant did not or does not meet the MEC, which includes the requirements of the program to which they were invited to apply; or
– the applicant’s recalculated CRS score has fallen below that of the lowest-ranked candidate invited to apply in that round of invitations.
(Emphasis added)
From this, we can gleam that the CRS score calculation is being examined at the point of the application’s submission from the starting point of the ITA. Absent is language that the points must be maintained throughout the duration of an application’s processing.
The relevant legal provisions of the IRPA supports this interpretation:
Visa or other document not to be issue
11.2 (1) An officer may not issue a visa or other document in respect of an application for permanent residence to a foreign national who was issued an invitation under Division 0.1 to make that application if — at the time the invitation was issued or at the time the officer received their application — the foreign national
(a) did not meet the criteria set out in an instruction given under paragraph 10.3(1)(e);
(b) did not have the qualifications on the basis of which they were ranked under an instruction given under paragraph 10.3(1)(h) and were issued the invitation; or
(c) did not meet the criteria for membership in a category that was established in an instruction given under paragraph 10.3(1)(h.2), if they were issued an invitation on the basis that they were eligible to be a member of that category.
Exceptions (2) Despite subsection (1), an officer may issue the visa or other document if, at the time the officer received their application,
(a) the foreign national did not meet the criteria set out in an instruction given under paragraph 10.3(1)(e) — or they did not have the qualifications on the basis of which they were ranked under an instruction given under paragraph 10.3(1)(h) or did not meet the criteria for membership in a category that was established in an instruction given under paragraph 10.3(1)(h.2) — because the foreign national’s birthday occurred after the invitation was issued; or
(b) the foreign national did not have the qualifications they had at the time the invitation was issued and on the basis of which they were ranked under an instruction given under paragraph 10.3(1)(h), but
(i) they met the criteria set out in an instruction given under paragraph 10.3(1)(e),
(i.1) they met the criteria for membership of a category established in an instruction given under paragraph 10.3(1)(h.2), if they were issued the invitation on the basis that they were eligible to be a member of that category, and
(ii) they occupied a rank that is not lower than the rank that a foreign national was required to have occupied to be invited to make an application.
(emphasis added)
However, there is silence in the regulations and legislation on what happens post e-APR submission if there is a loss of a job (and points). There is also confusing terminology in the Ministerial Instructions, which could lead to different interpretation. The current MIs state:
Loss of offer or inability to perform duties
(3) If the offer referred to in subsection (1) is revoked or ceases to be a qualifying offer of arranged employment or if the foreign national is unable to perform the duties of the employment or is unlikely to agree to perform them, the foreign national is no longer entitled to the points assigned under subsection (1) in respect of that offer and the total number of points assigned to the foreign national under the Comprehensive Ranking System is to be adjusted accordingly.
Key is, there is no duration mentioned in the MIs so we should look to the policy interpretation for this.
Here is what the same PDIs say:
Change in circumstance declared after an e-APR has been submitted
To assess an application under section A11.2, a processing office must consider the information in an applicant’s profile at the time of the round of invitations and the information provided when the applicant submits their e-APR. After an e-APR is submitted, an application cannot be refused due to a change in circumstance unless
– the officer determines that the change occurred before the applicant submitted their e-APR and that the change would have caused the applicant to be refused under section A11.2: therefore, the application should be refused under section A11.2; or
– the change in circumstance means the applicant no longer meets the minimum requirements of the program to which they are applying; therefore, the application may still meet the requirements of section A11.2 but can be refused for failing to meet program requirements.
For example, if an applicant marries before they submit their e-APR but informs IRCC of the marriage only after they submit their e-APR, the marriage can be taken into account as part of the section A11.2 assessment.
If, however, an applicant marries after they submit their e-APR, then informs IRCC of the marriage, the marriage cannot be taken into account as part of the section A11.2 assessment. However, the change in circumstance may affect whether the applicant still meets the program requirements. See below for details.
(emphasis added)
Based on these instructions the timing of the change is crucial. If loss of job happened before the eAPR was submitted but after the ITA was received, it could be a ground for an A11.2 IRPA refusal, but because in our case the job loss was after, there is no impact.
For further clarity, Sana emailed IRCC Immreps, an inbox for representatives, and got this response:
When an applicant submits an e-APR, the system automatically transfers the information from their profile to their e-APR for their convenience. The information in their application is locked, and their CRS score at the time of their application is recorded in GCMS. The candidate is required to ensure that the information is still accurate when they submit their e-APR to IRCC to maintain their Minimum Entry Criteria (MEC) and CRS points.
If the information transferred from the candidate’s profile is no longer accurate, the candidate must update their application accordingly. So long as the change in circumstance occurred after the submission of the e-APR, and the applicant still meets the program’s minimum requirements, the applicant will not be refused under section A11.2. You can find more information on changes in circumstances after an e-APR has been submitted here.
Excerpt from Immreps Email
However, given the nuance in this area I would still suggest seeking counsel’s support on advising immigration on termination. It is key for this post that I am only talking about the CEC context. If the loss of employment impacts the underlying eligibility for permanent residence under the Provincial Nomination Program where the employment may be a requirement of ongoing nomination or possibly the Federal Skilled Worker where the underlying 67 point threshold may be impacted – this changes the analysis. Furthermore, there is always the risk of misrepresentation – which the case of materiality might be debatable. Often times, applicants ask when they should disclose a material change of circumstance. This too is an issue needing further counsel.
However, I hope this piece has shed light on the type of complexities an applicants must deal with when facing already something as stressful as losing their employment. Policies, regulations, law are not easy to navigate alongside and increasingly the use of soft law and policies to fill in the gaps or provide flexibility.
