COLORABLE POLICIES INDIRECTLY MAKE APPLICATIONS FROM INDIA INEFFECTIVE
When it comes to India, a lot of policy implementation seems to be a knee-jerk reaction when observed from a bird’s eye view. The delays in processing Applications from India are one such example. While IRCC might believe, that such actions will in turn cause a deterrent effect to those who are desperate and willing enough to abuse the system, it also, unfortunately, encompasses those who are innocent and in need of faster family reunification.
At our Law firm, we are privileged to be one of the Canadian law firms, if not the only to establish and run a full-fledged Canadian Immigration Law Firm office in Chandigarh, India. As a dually qualified lawyer in both India and Canada, we are able to provide wholesome represent to our clients in India seeking Canadian immigration services. This in turn gives us the unique perspective to hear public feedback regarding IRCC’s policy decision, especially those dealing with delays in processing Applications.
First, I would like to justify the title “Colorable Policies” as it aptly describes what IRCC is trying to do through indirect means, which it would not be allowed to do directly. If the tables were turned and IRCC had to be assessed on a misrepresentation ban, IRCC would surely be given a justifiable misrepresentation ban for indirectly making applications redundant by increasing the processing time beyond the utilization of the Application itself. Unfortunately, that is not the case.
I would like to clarify, that as an Immigration practitioner we have taken many Applications which strictly did not meet the eligibility standards or had previous had negative assessments made on them, justified or non-justified. But, if our Law Firm requested leniency where it was deserved, IRCC through its delegated officers or program managers have also risen to the occasion of fixing their mistake or genuinely showing empathy and allowing Applications by making exceptions. We are grateful for these reasonable officers who on Counsel’s recommendation and submissions can distinguish between deserving and the non-deserving Applications from India.
However, since the pandemic, IRCC’s policy decisions seem to only remove bandages from existing problems and apply to new ones. The multiple portals apart from the Authorized Representative Portal is one such example. The problem is not that the system has hauled during the pandemic and all Applications are stalled, but that it has selectively chosen to halt certain files while allowing similar other files at faster rates. This discrepancy in the processing time makes it very difficult for practitioners to provide accurate representation to the client and creates havoc to those who applied simultaneously. One can only accept such discrepancy as a luck of draw when applications are assigned to the Immigration Officer.
To give an example, spouses of international students are allowed to apply for an open work permit under the Labour Market Impact Assessment (LMIA) exemption code (C42) under the International Mobility Program (IMP). The purpose of the Application is in direct correlation with the objective of the Act, i.e., to reunite families in Canada. Before the pandemic, an Open Work Permit would be decided in 7 to 8 weeks. Given that a student’s program duration is usually between 1 to 3 years, the Spouse can reunite with the international student within the duration of the program. Now, the turnaround time stands at a ridiculous 51 weeks from India. While we admit that there is a huge component of non-genuine applications from India in the system, but rather than fixing the Application system and aligning it with the objectives of the Act, IRCC has chosen to delay all such applications to the extent that it has become redundant to apply for a C42 Open Work Permit Application.
Amongst the tools available for Applicants who are waiting in the queue, webform updates are the most frequently used. Although this seldom brings any movements on files from India, these updates and efforts are crucial for raising persuasive arguments in a writ of Mandamus at the Federal Court of Canada.
While such examples of delay might feel farfetched or unique, our Law Firm regularly witnesses extreme unreasonable delays for Applicants from India. To give one such example our Law Firm recently represented a client who sponsored his parents in the year 2008 and the delay tallied to 13 years and 3 months as of the judgment date. The Federal Court granted the Mandamus application (IMM-3775-21) on April 20, 2022 and issued directions to IRCC to make a final determination. The entire purpose of a Parental Sponsorship Application is to reunite with your aging parents in Canada, however, these unreasonable delays and colourable policy decisions make parental sponsorship almost redundant in this case. Although limited by legal procedures, our client wanted to ask IRCC how an Immigration Officer would feel if they sponsored their parents at the age of 60 and due to the Application delays, they were able to reach Canada at the age of 73.
Since October 2021, our Law Firm has filed approximately numerous Writs of Mandamus in the Federal Court. We can proudly say that we were successfully able to receive either a substantial movement on the file or a final decision on most of the files. However, the main obstacle remains that Clients in India have limited access to Canadian lawyers and even if they can make contact, the legal fees involved are often out of reach for many.
To conclude, we believe delays are a colourable policy decision of IRCC to keep Applicants or a certain class of Applications languishing on desks without decisions. IRCC should not be allowed to do indirectly what it is prohibited to do directly. We recommend a closer review of the systems in place in India, and we encourage other Law Firms to raise the voices of families and offer justice to those in need.