Canada’s immigration program: utter chaos!

By Catherine Sas, Q.C.
Special to The Post

Immigration practice encompasses a broad range of services such as submitting applications to the Department of Immigration, Refugees and Citizenship Canada (IRCC) and Service Canada (ESDC). However, there are complimentary services that many are unaware of such as submitting further client documentation via webform, submitting Access to Information requests (ATIPs) to get copies of historical applications that clients don’t manage to save themselves, and filing applications to the Federal Court (FC) to challenge refusals of their applications. Across the board, all aspects of Canada’s immigration service delivery are currently in utter chaos!

IRCC SERVICE DELIVERY DELAYS

It has been newsworthy for many months, if not years, that IRCC has been backlogged with applications - as many as 2.5 million in recent months - with significant consequences to applicants. Husbands and wives, parents and children, are often separated for extended periods of time (i.e. years) pending the processing of their applications. Employers are unable to fill positions in Canada and can face wait times of over a year for work permit applications to be processed. International students are similarly facing significant delays and may have to delay their programs of study several times to wait for a study permit. Notwithstanding the announcements of IRCC Minister Sean Fraser and ESDC Minister Carla Qualtrough - to increase resources for their departments to speed up application delivery, the processing time periods to bring foreign workers and international students to Canada are completely unacceptable. In order to address Canada’s significant labour shortage, IRCC Minister Sean Fraser recently announced a special program to allow international students presently in Canada to work an unlimited number of hours while studying. A dramatic step to address a colossal failure of his department to process applications in a timely fashion - with significant potential consequences to international students who put their studies second to work - all with the Minister’s tacit endorsement.

LESSON: TIMELY PROCESSING NEEDS TO BE TIMELY!

ON LINE PORTALS

IRCC has been advancing digital service delivery for several years with a view to providing speedier service. As of this September 23, 2022, for many application processes, it is now mandatory to submit applications digitally. While this sounds all well and good in theory, the online portals that applications are to be submitted to, frequently, if not routinely, don’t work. Applicants and/or their representatives, often have to wait days, if not weeks, for an online portal to work properly to submit an application. Where permits are expiring imminently, such a delay can have serious consequences. If an application is not submitted prior to expiration, an applicant can only resort to a restoration application and cannot work or study pending the determination of that application. Processing times for a restoration application are in excess of six months.

LESSON: DON’T ROLL OUT A SERVICE DELIVERY MODEL UNTIL IT ACTUALLY WORKS!

WEB FORMS

In this new digital era that IRCC is embracing their preferred method of client communication is called a “webform”. A webform is a digital message where you upload documents and/or any significant updated information such as marriages, births and deaths, in an electronic format. While this sounds great, the problem is that there are no responses to web forms. There are no human beings at the other end of the web form to read, review and/or respond to the message. Applications are being refused prior to the webform being read, acted upon and/or responded to resulting in increased applications for Judicial Review at the Federal Court. (More detail on this to follow!). No other means of communication is accepted. Email addresses and fax lines direct all communication to be made via web form.

LESSON: ANY SYSTEM OF COMMUNICATION NEEDS TO HAVE THE PERSONNEL RESOURCES TO ACT UPON AND RESPOND TO THE COMMUNICATION!

ATIPs

Access to Information requests (ATIPs) is a routine part of immigration practice. Particularly in this new digital world, once clients and/ or their representatives, upload a digital application, there is no physical copy of it and the only way to obtain it is to make an ATIP requests. Statutorily, ATIPs are to be provided within 30 days but routinely it takes much longer to receive the results. We have a pending ATIP application that was made on May 19, 2022, to which we received a reply on June 17, 2022, that the results would be provided by August 17, 2022. As of today, we have not received the requested materials. Given the serious consequences of a misrepresentation determination, counsel can’t properly advise clients without their full immigration history. In response to a recent follow-up request to an ATIP request, we received a message that their in-box is “full”. It is not even possible to communicate with the privacy department to be able to obtain documents. Another breaks down in the immigration communication chain.

So, what alternatives do immigration lawyers have when we can’t get the information that we need in a timely manner - we litigate. What does this mean? We file an application for judicial review to the Federal Court in order to obtain the reasons for a decision that we need. That has other serious consequences and just creates a further draw upon scarce resources both at the Federal Court and the Department of Justice.

LESSON: CREATE AN EXPEDITIOUS WAY FOR APPLICANTS TO OBTAIN THEIR FULL IMMIGRATION FILE HISTORY!

FEDERAL COURT

As mentioned above, when there is no further way of resolving matters with the government departments, it may become necessary to turn to the Federal Court. Generally, an FC application is not to be made lightly. Other than the situation mentioned above where IRCC can’t provide copies of client file material in a timely manner, immigration lawyers have no other choice but to turn to the Federal Court to obtain the reasons for a decision so that they can advise a client how best to proceed.

LESSON: PROVIDE ALL REASONS FOR DECISIONS WITH ALL APPLICATIONS. NO EXCEPTIONS!

The Federal Court is also facing service overload. They have recently embraced the online filing process with a view to providing better service. However, in the past month or so, their online filing service experienced a “glitch” such that they have no way of knowing whether the applications that were filed were actually received! Only by following up with outstanding applications were lawyers able to learn that their applications may not have been received and that they had to re-submit them creating a duplication of effort for both lawyers and registry staff. This can have serious consequences for clients.

LESSON: ESTABLISH A SECURE AND ACCURATE ONLINE FILING SYSTEM FOR THE FEDERAL COURT!

Conclusion – A culture of complacency

Having practiced Canadian immigration law for over thirty years, I have observed a steady decline in the service standards of our various government departments that deal with the broad range of immigration services. Program Managers of overseas visa offices no longer provide their contact information nor do they respond to any messages sent to their offices. Canadian immigration officers don’t identify themselves by name nor provide any contact information. Service standards don’t practically exist as any excuse can provide a rationalization for why the time frame is no longer applicable. COVID-19 has been a convenient justification for pretty much any immigration related delay.

Our government repeatedly declares that immigration is vital to Canada’s ongoing economic growth. We can’t achieve the results that we need with our current state of operation. Complacency needs to be replaced with efficiency!

Catherine Sas, Q.C. has over 30 years of legal experience. She provides a full range of immigration services and is a leading immigration practitioner (Lexpert, Who’s Who Legal, Best Lawyers in Canada). Go to canadian-visa-lawyer.com or email [email protected].