How Can a Writ of Mandamus Help With Your Immigration Application?
Have you filed an application to immigrate to Canada but you’re still waiting for a decision after the processing time has passed?
You’re not alone.
According to Reuters, Canada aimed to welcome more than 800,000 new residents by the end of 2022. Canada’s Immigration Minister Marco Mendicino spoke of a “vision for the future” in which “immigration [is] one of the keys to [the country’s] economic recovery and [its] long-term prosperity”.
But the immense disruption caused by COVID-19 has created issues for people hoping to gain entry. And if you’re tired of waiting to find whether you can settle in Canada, a writ of mandamus may be the solution you need.
What does that mean, and how could it help with your immigration application?
Read on to discover everything you need to know.
What is a Writ of Mandamus?
The writ of mandamus (Latin for “we command”) stems from ancient English law, and began as official commands issued by royals. These dictated that subjects would undertake specific acts within their expected duty in cases where a failure to do so had led to adverse effects.
Today, a writ of mandamus is a court order issued by a superior court to a lower court, government officer, or public authority to execute a duty that they are obligated by law to complete.
With regards to immigration, a writ of mandamus is a judicial remedy that asks the court to order Immigration, Refugees and Citizenship Canada (IRCC) — or another administrative entity — to issue a decision within a specified period of time.
A writ of mandamus can be used effectively on an extensive range of application types, including (but not limited to):
- Permanent residence
- Temporary residence
- Temporary resident permit
- Criminal rehabilitation
The immigration application process can be complicated and stressful under normal circumstances. But IRCC reported in March 2021 that the pandemic had created an application backlog and that applicants should expect delays.
The official Government of Canada website also shows that it is:
- Experiencing delays in receiving applications
- Is unable to process applications normally
- Can’t give accurate processing times
You may feel as if your life is on hold while waiting for your decision. Relocating to Canada (or any country) is a major undertaking, and you might have family or potential employers waiting on you for news. Delays can be incredibly frustrating, to say the least.
But a writ of mandamus is an effective way to get a decision and discover where you stand.
Is My Application Eligible for a Writ of Mandamus?
You must meet specific legal requirements before a court is prepared to issue a writ of mandamus. According to The Canadian Bar Association, these are:
- There must be a public legal duty to act
- The duty must be owed to the applicant
- There is a clear right to the performance of that duty, in particular:
(a) the applicant has satisfied all conditions precedent giving rise to the duty;
(b) there was
(i) a prior demand for performance of the duty;
(ii) a reasonable time to comply with the demand unless refused outright; and
(iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
(4) No other adequate remedy is available to the applicant.
(5) The order sought will be of some practical value or effect.
(6) The Court in the exercise of discretion finds no equitable
bar to the relief sought.
(7) On a “balance of convenience” an order in the nature of
mandamus should issue
To put this in simpler terms, obtaining a writ of mandamus hinges on whether an application has exceeded the average processing time and is subject to unreasonable delays.
Many immigration applications may be delayed without any reasonable explanation, causing anxiety and stress for people seeking a decision that dictates their future. A mandamus is an effective legal tool for applicants who have been waiting a long time for their applications to be processed and decided upon.
It’s vital to confirm that a reasonable amount of time for processing has passed, and that this exceeds the average. Generally, processing times before the pandemic ranged from a few weeks to one year depending on the nature of the application. Waiting for a decision may feel like a long, drawn-out process even when it falls within that average timeframe, but even with the pandemic, lengthy delays are unacceptable.
Before seeking a writ of mandamus, you should be sure that you completed your application properly and that the IRCC has no obvious reason to hold it up. Each mandamus case is assessed based on its specifics, and courts are unlikely to accept that administrative or managerial challenges (such as employee absenteeism) at the IRCC are a reasonable reason for delays.
Abramovich & Tchern’s lawyers have seen mandamus cases settled before litigation begins, and without the applicant being required to perfect their record. You may receive your decision sooner than you expect with our help.
The Writ of Mandamus Process for Your Canadian Immigration Application
A writ of mandamus begins with a well-written, persuasive demand letter that encourages the IRCC to investigate an application yet to be processed.
At Abramovich & Tchern, we can help you at every step of the mandamus process — from writing a demand letter crafted to prompt action to seeing that you receive a decision for your application.
We have forged close working relationships with key stakeholders in Canadian immigration, including:
- Immigration, Refugees and Citizenship Canada
- Service Canada
- The Canada Border Services Agency
- The Federal Court of Appeal
- The Federal Court of Canada
- The Department of Justice
- The Immigration and Refugee Board
Working with these entities ensures we have the latest insights into immigration law developments — so we’re always prepared to help clients just like you get the results you need.
We’re committed to advocating for clients throughout the immigration process, and our passionate team strives to deliver a satisfactory experience every single time.