There may be no better time to reform Canada’s broken immigration system as anger and frustration approach fever pitch over the country’s massive immigration backlog.
In April 2022, Immigration Refugees and Citizenship Canada (IRCC) set an unwanted record as its unprecedented backlog crossed the two-million threshold. However, the agency’s statistics show that the line is not getting any shorter, with 2.7 million people across all categories still waiting for a decision on their application by the middle of July.
As the backlog spirals out of control, an increasing number of applicants have been forced to turn to the Federal Court of Canada, seeking relief via applications for a writ of mandamus – a form of judicial review in which the court is asked to direct IRCC to issue a decision on a particular case.
At our firm, we have helped more than 250 people launch mandamus applications in the last year. This route should be the last resort for prospective immigrants to Canada, but it is an increasingly attractive one for those who have already waited an unacceptably long time for an answer on their applications, because of how effective it is at forcing IRCC to focus its attention on their case.
Most of our mandamus files are approved within 60 days of commencing Federal Court proceedings.
Much of the recent media coverage has rightly focussed on IRCC’s backed-up system and the unfortunate people caught up in it — a subject I have commented on for numerous news outlets, including CBC and CTV.
The structural and operational issues that are driving the IRCC delays have struggled to attract as much of the spotlight, but solving these admittedly less glamorous problems is arguably more important for the longer-term health of Canada’s immigration system.
In this blog, I attempt to redress that balance with a discussion of our top five recommended changes the IRCC should implement.
1. Build a centralized digital processing platform
IRCC’s archaic consular-based structure means prospective immigrants to Canada are entered into a processing-time lottery that depends entirely on where in the world they are located.
There is no reason why a visa application from a Ghanaian national that goes through IRCC’s Accra office should take longer than one from a U.K. national via London. However, the varying levels of competence and staffing in this hyper-regional approach contribute to an extremely uneven quality of service across branches that is ultimately unfair to applicants.
To make matters worse, immigration officers are regularly cycled in and out of visa offices every couple of years, to stop them from becoming too closely aligned with the local population, or from “going native” as it has been described to me by immigration officials.
The lack of workplace cohesion that such a high level of employee turnover engenders only exacerbates the poor management and lack of accountability that plagues many regional IRCC offices.
This consular approach might have made sense in the 1950s or 60s, when in-person interviews were a key information-gathering tool, before globalization, the internet, and social media radically changed the structure of our world. However, its time has long since passed.
A centralized digital platform — with Canadian-based processing centres — that allows applications to be effectively distributed across all IRCC’s Canadian and international offices, on a first-in-first-out basis, would lay the groundwork for a better-managed process, as well as a much more uniform experience for prospective immigrants, wherever they are in the world. Local consular offices would still have a role to play — albeit a smaller one — in cases where further investigation, interviews or specialized local knowledge are required.
2. Prioritize current applications
Life in the shadow of COVID-19 has been difficult for everyone, but immigration applicants have suffered more than most, thanks to pandemic-related delays at the IRCC. Yet it appears that IRCC will focus its resources on ensuring new applications are afforded pre-COVID-19 processing times, while slowly reducing the backlog.
Broadcast news bulletins and print media have been so full recently of the stories of stranded immigration applicants, that the public risks becoming numb to the stories of people stuck in limbo, unsure of when they will be able to immigrate to Canada and get on with their lives.
This unacceptable situation is an embarrassment to the country, and IRCC must rectify it as soon as possible by funnelling resources as a priority towards pending applications, with a view to easing — and ultimately eliminating — the current backlog.
3. Streamline permanent residence pathways for temporary residents
Temporary residents working or studying in Canada have already done most of the work it takes to adapt to life in this country. IRCC should recognize this by creating new streamlined and expedited pathways for them to transition to permanent residence quickly and efficiently.
During the COVID-19 pandemic, the federal government appeared to have taken a step in this direction when it launched its temporary resident to permanent residence (TR to PR) pathway for certain essential workers, international students and French speakers.
Unfortunately, the implementation of the program left much to be desired as there have been significant delays in applicants receiving Acknowledgments of Receipt, and many applications taking more than a year to finalize.
A new and improved TR to PR pathway should focus on international students who earn their degrees in Canadian colleges and universities. Communities across Canada would benefit from the retention of international students graduating with in-demand skills that match the needs of the local labour market.
In addition, IRCC should develop a TR to PR pathway for skilled trades workers living in Canada on temporary resident visas, by tying eligibility to in-demand jobs in certain National Occupation Classifications. The program could be designed so that individuals who have been working in their respective NOCs for a certain period would be able to apply for permanent residency with lower requirements.
4. Make proper use of AI
Used correctly, artificial intelligence can be an extraordinarily powerful tool for an organization that deals in data. Unfortunately, there remains a huge mismatch between the promise of the technology and its use in practice by IRCC.
So far, the agency’s experiments with AI are shrouded in mystery, plagued by the same lack of transparency and accountability that characterizes many of IRCC’s biggest cultural problems. Based on the information available, it appears that AI is, in fact, becoming a key structural component of the assessment of certain temporary residence applications.
In my opinion, AI is better harnessed in the pre-screening of immigration applications, identifying potential issues early in the process so that applicants are still given the opportunity to explain or address flagged problems, preserving some degree of procedural fairness.
In addition, an AI-powered screening system could make a real impact on processing times by identifying possible inadmissibility issues at an earlier stage, allowing hopeless applications to be weeded while minimizing the amount of IRCC’s limited resources that are wasted on them.
5. Expand the Provincial Nominee Programs
Giving provinces more power over their immigration needs will boost local economies and improve the distribution of immigrants beyond a few select cities.
The recent expansion of the PNP shows that the federal government understands that provincial leaders have a role to play in identifying immigrants who will contribute to their cultural or economic advancement.
However, the program is not growing quickly enough. For example, with 83,500 planned permanent residence admissions budgeted for 2022, the PNP will only account for around one-fifth of all new Canadians this year.
In addition, certain provinces are under-represented in the current version of the PNP. Ontario, in particular, suffers compared to its share of the population, since it is only allowed to invite 9,750 candidates to apply for permanent residence out of the 83,500 total spaces allocated by IRCC for 2022.
I would like to see IRCC increase the PNP’s quotas and boost the decision-making powers of provinces: if, for example, Alberta wants to attract more farmers or international students, they should have the flexibility to do that via their PNP without running into bureaucratic hurdles.
IRCC should also streamline the application process for non-Express-Entry-based provincial nominee applicants. Ultimately, once a candidate is nominated by a province, their application should face minimal barriers, progressing to checks for purely administrative matters such as checks for criminal or health-related inadmissibility.
The temporary solution: Writ of Mandamus
It’s never too soon for IRCC reform to begin, but these longer-term goals are probably not much good to those caught up in the agency’s massive delays now.
In the meantime, individual applicants can hold IRCC accountable by seeking a writ of mandamus at the Federal Court of Canada. If granted, this form of judicial review forces the agency to look at your case and render a decision.
The process can be complicated, and it is important to obtain legal advice from someone with experience in this technical area of Canadian immigration law. Feel free to contact one of our lawyers to get more information.
