There has been quite a bit of controversy with respect to a
number of recent changes to Canada’s immigration policy. An interesting and
most likely unanticipated consequence of these changes has taken the form of a
lawsuit by affluent foreigners, mostly from China, against the Federal
Government after the cancellation of the Immigrant Investor Program
(IIP).
The IIP offered “would-be” immigrants permanent residency
to those with a net worth exceeding $1.6 million as long as they invested
$800,000 into the Canadian government. Seems like a good trade? Well, it did to
the 66,000 applicants whose applications were backlogged prior to the Program’s
cancellation. 1,500 of them are now asking to either have their applications
processed or they will seek compensation in the amount of $5 million per
applicant – resulting in over $18 billion in claims. Without disputing the
benefits of immigration for Canada, a lawsuit like this one has, at first
blush, little merit. From a private law perspective, the obvious argument is
that the former availability of the IPP can hardly be considered an “offer”
that, if accepted by a foreign applicant, forms a contract between the
applicant and the Canadian government.
From a public law perspective, Canadian courts have been
traditionally loathe to find the existence of a duty of care between a
government and a private party that could form the basis of a claim in tort.
Finally, and perhaps most importantly, the conferral of citizenship, which is
what permanent residency usually leads to, is an act of sovereign power. The
acceptance of the plaintiffs’ claim by the Canadian judiciary would be
tantamount to the imposition upon the other branches of government of a legal obligation
not to change immigration policies where such change would be detrimental to a
potential immigrant.
This would be not only be taking the government’s duty to
provide procedural fairness too far, it also ignores the sovereign nature of
citizenship attribution under public international law.
For further details on this matter, please refer to
the link below:
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