Canada Immigration and Citizenship News

The shortage of IT knowledge workers in Canada has been recognized at a federal level, and resulted in the creation in May 1997 of Canada's Pilot Project for Software Professionals, which facilitated the entry into Canada of aliens working in certain designated software development occupations. Most recently, the Canadian federal government has introduced a Temporary Foreign Worker Program to "speed up" the entry of skilled temporary foreign workers in order to "contribute to the development of a knowledge-based economy where Canada's competitiveness depends on getting both the right skills and the right knowledge at the right place at the right time."

 THE NAFTA: IMMIGRATION VERSUS TEMPORARY LABOR MOBILITY

 As with most "free" trade agreements, the NAFTA seeks to remove or diminish artificial (i.e., legal) trading restrictions between its participant nations, the three nations that comprise the North American continent, and thereby to promote a relatively unhindered flow of capital, goods, and services between them. Although a consensus exists that such a free flow of capital, goods, and services is a desirable goal worthy of the three nations' collaborative efforts, the removal or diminution of each nation's immigration obstacles in order to facilitate the free flow of their citizens within the NAFTA zone was never seriously discussed during the negotiations that led to the signing of the treaty.

  Although the facility of movement across the borders of a state party to a free trade agreement by nationals of another state party may well be seen as a natural or even necessary concomitant of a lowering of trade barriers to capital, goods, and services, the notion that citizens of one state party to the NAFTA should be able to enter the territory of another state party with the ease accorded to capital, goods, and services appears to have been decidedly inimical to the drafters of the NAFTA. In this respect, the NAFTA state parties never paid much attention to the possibility of adopting the European Union's model of virtually unhindered labor mobility (and, in certain circumstances, immigration) for citizens of its member nations. In fact, the most significant aspect of the relationship between the NAFTA and immigration (understood in the common sense of a permanent physical displacement of a citizen of one country to another country) is that no such relationship exists; the NAFTA contains no provision allowing or even contemplating immigration between the three state parties. The language of the prefatory "General Principles" of Article 1601 of Chapter 16 of the NAFTA is particularly telling in this regard. These declare the fact that the NAFTA's immigration provisions should reflect the "preferential trading relationship between the parties, the desirability of facilitating temporary entry on a reciprocal basis and of establishing transparent criteria and procedures for temporary entry," but simultaneously acknowledge the apparently competing needs "to ensure border security and to protect the domestic labor force and permanent employment" in each state party's territory.

  To the drafters of the NAFTA, then, "permanent employment" is not something to be promoted by the NAFTA, but something that apparently needs to be protected from the NAFTA. The preamble to the NAFTA also smacks of this isolationism: one of its laundry list of desiderata is that the state parties will "create new employment opportunities and improve working conditions and living standards in their respective territories." Indeed, one of the most important motivating factors behind the U.S.'s participation in the NAFTA was the belief that the lowering of trade barriers in Mexico would curb (mostly, but not exclusively, illegal) immigration from that nation by raising living and working conditions there. Although it would be wrong to view the NAFTA as being driven by an anti-immigration impetus, the modesty of its aims with respect to the movement of persons, as opposed to capital, goods, and services, is not easily overstated.

  As far as the cross-border movement of the citizens of state parties is concerned, all the NAFTA seeks to achieve is a regime of temporary labor mobility. To that limited effect, Chapter 16 of Part Five of the NAFTA established a scheme of reciprocal undertakings by each state party to permit the entry in preferential status of "business" persons who are nationals of another state party. Implicit in the NAFTA is the notion that such mobility must be ancillary to the movement of capital, goods, and services, and not a good in itself. Making it quite clear which is the cart and which the horse, Article 1602 ("General Principles") of the NAFTA imposes upon each state party a general obligation to apply "expeditiously" the labor mobility measures of Chapter 16 "so as to avoid unduly impairing or delaying trade in goods or services or conduct of investment activities[.]"