Quebec Update: “Crystallization of Rights”

The Government of Quebec has recently announced a significant change in its policy regarding the “crystallization” of rights upon the submission of an application for a Quebec Certificate of Selection.

In the past, applicants could be assured that their applications would be evaluated on the basis of immigration rules in effect on the date that their applications were received by a Quebec immigration processing post. Thus, even though the processing post might take many months to process an application, the application would effectively be “locked-in” on the date of its receipt by the processing post. Any changes to immigration rules taking effect after the “lock-in date” would not be applied in the evaluation of the file, unless they would benefit the applicant.

With its Directive 010, the Quebec Ministère des Relations avec les citoyens et de l'Immigration has -- at least to a certain extent -- reversed its former policy.

Under the Quebec selection system for “skilled workers” (also known as “independents”), applicants are assessed under a “points” system. Under current Quebec Selection Criteria, applicants are awarded “units of assessment” for a number of objective factors, such as age, education, occupational background and language ability. In addition, applicants must satisfy the employment requirements associated with their intended occupation in Quebec, as set forth in the National Occupation Classification (NOC). The NOC will stipulate, for example, whether a particular occupation requires the applicant to have completed a certain level of education; it will also stipulate that the applicant have accumulated particular types of work experience.

One important feature of the Quebec “independent” selection system is the ability of applicants to receive crucial “bonus” points if their intended NOC occupation is “in demand” in Quebec. To that end, a list of “open” NOC occupations has been formulated and is updated from time to time by the Quebec immigration authorities. Quebec has likewise established a list of NOC occupations which are “saturated” in the Quebec labour market. Applicants whose work and educational background is consistent with an NOC occupation appearing on this “closed” list will not be accepted by Quebec, unless they qualify under a different NOC occupation which is not on the “closed” list.

Until recently, if an applicant’s NOC occupation appeared on the “open” list on the date the application was received by an immigration processing post, the applicable “bonus” points would be “locked-in.” Any subsequent removal of the particular NOC occupation from the “open” list – prior to the final evaluation of the application by the immigration processing post – would not deprive the applicant of the “locked-in” bonus points. Similarly, if an applicant’s NOC occupation did NOT appear on the “closed” list on the date the application was received by an immigration processing post, the applicant would not be penalized by any subsequent addition of the particular NOC occupation to the “closed” list.

From now on, though, the date that an application is received will no longer determine which “open” or “closed” NOC occupations apply. According to Directive 010, all applications will be assessed on the basis of government policy in effect on the date of their evaluation by an immigration officer – regardless of the delay between the date of the submission of the application and the date on which it is ultimately evaluated. In fact, the only factor which will be “locked-in” is that of the age of the applicant. Thus, to a substantial degree, applicants can no longer be assured that their cases will be assessed on the basis of the rules in effect on the application submission date.

To somewhat compensate for the lack of certainty that this new policy will very likely cause, Directive 010 provides that immigration officers – when faced with an applicant whose file is rejected as a direct result of a change in immigration rules occurring sometime after the application submission date – are entitled to use their discretion in determining whether the application might nonetheless warrant acceptance. Furthermore, applicants who accumulate additional work experience and/or education during the period between their application submission date and the date that their application is actually evaluated, will be awarded additional units of assessment (if warranted) for the additional educational and/or work experience.

It is too early to determine what the practical effect of Directive 010 will be. Will it result in more cases being rejected? Will qualified applicants be discouraged from applying to Quebec altogether? Only time will tell