April 20, 2016

What are Retroactive and Retrospective Laws in Immigration Appeals?

Retroactive and retrospective laws have become more common in immigration law. A well known example of retrospective changes to immigration law was the decision to terminate the Federal Skilled Worker (FSW) immigration visa backlog in 2012 of nearly 300,000 persons with applications dating as far back as 2004.  So what do the terms mean?

 Retroactive: A law is retroactive when it undoes or changes decisions already made. True retroactive laws are rare. With environmental assessments, there are occasions where the assessment leads to project approval by the Government. Development may begin, but thereafter changes to environmental standards may lead to re-assessment and project termination. In essence, a decision was made and acted upon by a project developer, but due to a change in law that decision was revoked; what was previously a permissible project became impermissible.

Retrospective: A law is retrospective when it changes expectations for processes/applications underway. Retrospective law occurs frequently under the IRPA and the Immigration and Refugee Protection Regulations (Regulations).

Aside from the criminal law exception, there are no specific barriers preventing the enacting of legislation which has a retroactive or retrospective effect. Law is assumed to be prospective only if there is no language which suggests a contrary intention.  The foundational principle is that, unless the Government clearly indicates otherwise, individuals ought to be able to know the law and order their affairs in accordance with the law. We have seen retrospective and retroactive laws with respect to sponsorship and permanent residency appeal rights at the Immigration Appeal Division for married couples and permanent residents with criminality. The enactment of retroactive/retrospective laws impacts predictability and clarity in the operation of the immigration system and this can lead to unintended consequences.  Refused Canadian immigration visa, deportation cases and family class sponsorship appeals dealing with retroactive and retrospective laws can be challenging and require special consideration for immigration lawyers in representing clients.

For more information on the Immigration Appeal Division, click here.