Section 87.4 of IRPA purports to retoractively close outstanding skilled worker applications filed before 2008 and not considered on their merits before March 2012. However, there may be two exceptions, one in the Act and one not. The first is for cases which have been sent back by judicial order. Section 87.4(2) says: Subsection (1) does not apply to an application in respect of which a superior court has made a final determination unless the determination is made on or after March 29, 2012.
Although suprior court is not defined, and does not usually include the Federal Court, the only court with jurisdiction to render final determinations on such applications is the Federal Court. As such, cases sent back by Federal Court order before March 2012, will be exempt from the application of s. 87.4. In other words, they will remain open and must be processed.
The other exception may be cases in which an exemption under s. 25 for humanitarian reasons was requested with the skilled worker application. Technically, s. 25 applications are not caught by s. 87.4 and should not be closed. I have clients in this situation. This issue may have to be resolved through judicial review.
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