Wheels Set into Motion: The Legislative Basis for Express Entry Changes

I believe the following information will be helpful to those looking to immigrate to Canada through a program run under the Express Entry system.

For those in a hurry the key take-away is that details continue to remain scarce regarding changes to Express Entry, however, the recently proposed legislative amendments submitted to Parliament seem to indicate that an occupational based ranking component will likely become, in some way, an element of the Express Entry system. However, the scope and timeline for these changes continues to remain unclear.

Please see further details below:

A. General Background

Budget 2021 announced the Government of Canada’s intent to introduce amendments to the Immigration and Refugee Protection Act to further streamline the Express Entry System by providing the Minister of Immigration, Refugees and Citizenship with authority to use Ministerial Instructions to help select candidates who best meet Canada’s labour market needs.

Without much additional information the only real take-away at that time was that ‘changes to the Express Entry system are coming,’ however, the exact scope and content was unclear.

B. Parliamentary Developments

The aforementioned amendments are now being debated in Parliament.

Bill C-19 is an omnibus finance bill which has passed first and second readings at the House of Commons on April 28, 2022, and May 10, 2022, respectively. Bill C-19 is now being presented before the Parliamentary Standing Committee on Finance.

You can download the full text of Bill C-19 and you can track the bill’s progress through Parliament on the
LegisInfo website:

• https://www.parl.ca/legisinfo/en/bill/44-1/c-19

For the purposes of Express Entry the relevant section of Bill C-19 is Division 23 (pages 370 to 373.

C. Existing Legislative Framework

The invitation to apply system found in Express Entry is based on Division 0.1 of the Immigration and Refugee Protection Act:

• Division 0.1 of IRPA: https://laws.justice.gc.ca/eng/acts/i-2.5/page-2.html#h-274208

Section 10.3 under Division 0.1 is of particular importance to Express Entry hopefuls as it delegates power to the Minister to structure the entire system – key points include:

(e) the criteria that a foreign national must meet to be eligible to be invited to make an application;
(h) the basis on which an eligible foreign national may be ranked relative to other eligible foreign nationals;
(i) the rank an eligible foreign national must occupy to be invited to make an application in respect of a class referred to in an instruction given under paragraph (a);
(j) the number of invitations that may be issued within a specified period, including in respect of a class referred to in an instruction given under paragraph (a);

Ministers then use this delegated power to draft and issue the particulars of the system in Ministerial Instructions (MIs). The core idea behind this delegation of powers is that immigration is constantly growing, changing and adapting, and so, something more nimble and responsive is needed than traditional legislation to respond to immigration related matters.

By way of example here are the current MIs for Express Entry:

• Current MIs for Express Entry: https://laws.justice.gc.ca/eng/acts/i-2.5/page-2.html#h-274208

And here is a link that shows the 9 previous versions of these MIs which were all issued in just a 6-year period:

• Previous MIs for Express Entry: https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/ministerial-instructions/express-entry-application-management-system.html

D. Proposed Changes

The key changes appear to be the addition of subsections (h.1) and (h.2) to section 10.3. The key takeaway here is that the Government of Canada wants to give the Minister the power to create new groupings and then have the ability to use membership in a group to select candidates for Express Entry.

The text of (h.1) and (h.2) is as follows:

(h.1) the establishment of groupings of eligible foreign nationals for the purposes of ranking, which groupings may consist of
(i) all eligible foreign nationals
(ii) eligible foreign nationals who are eligible to be members of a class referred to in an instruction given under (a), or
(iii) eligible foreign nationals who are eligible to be members of a category established in an instruction under paragraph (h.2);
(h.2) the establishment of categories for the purposes of ranking and the criteria for eligibility to be a member of a category;
(i) the rank within a grouping that an eligible foreign national must occupy to be invited to make an application in respect of a class referred to in an instruction given under paragraph (a);
(ii) the number of invitations that may be issued within a specified period in respect of a grouping;

The main reason why we have more questions than answers, however, is that the legislation does not define groups and instead assigns the power to designate groups entirely to the Minister.
The related amendments do, however, seem to suggest that the structure of groupings would be based on occupation. However, since ‘group’ is not defined it could also be anything designated by the Minister in the Ministerial Instructions.

E. Questions Moving Forward:

Some of the big questions that I (and other members of the immigration bar) have include:

(1) Fairness: How will the fairness and efficacy of these groupings be judged? Will there be any transparency to this process and/or an opportunity for relevant stakeholders to participate in creating groupings? And how would stakeholders be selected?

(2) Impact on Labour Market: Will obscure occupations be fairly represented? Will an occupation-based system address the needs of Canadian employers better than the current system? How realistic is just-in-time immigration? Is a focus on core skills, education and language the better approach?

(3) Scope of Changes: How big will the changes be in practice? Will the focus shift primarily to CRS ranking PLUS occupation? Or will there by some sort of hybrid model? For example, will draws be segregated into traditional CEC, FSW, PNP draws PLUS separate draws that target certain occupations within those classes?

(4) Notice to Immigration Hopefuls: How long will it take until changes are implemented? Will the public be given advance notice of the exact changes being made so that they can account for the changes in their own immigration planning activities? And, if so, how far in advance?

(5) Ability to Engage in Long-Term Planning: Will the new system facilitate long-term planning for immigration hopefuls? One of the benefits of Express Entry is that it has been a relatively stable system (pre-COVID) which in turn allowed for long-term immigration planning; e.g., acquiring additional education, work experience, improving language skills, gaining study or work experience in Canada, etc. Will the creation of new groupings introduce an element of instability into the system and in turn affect the ability to plan for the long-term?