Everything You Need To Know About The Writ Of Mandamus
If you are reading this, there is a good chance that the processing of your Canadian immigration is delayed, or you are concerned about a possible future delay
You’re not alone, and we are here to help you. A Writ of Mandamus is a powerful tool in moving the immigration application process along.
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.
Key Legal Considerations Of The Mandamus
While it is best to think about a writ of mandamus application as a practical tool that allows you to put pressure on IRCC to finalize a delayed application, the applicant should meet the criteria listed below in order for the Federal Court to issue a mandamus order.
While the legal test may seem complicated, we will break down the process in simple terms during the initial free mandamus consultation. We also note that most of our mandamus cases see IRCC issue a decision within 60 days of proceedings being commenced.
- There must be a public legal duty to act and that duty is be owed to the applicant
- There is a clear right to the performance of that duty, in particular:
- the applicant has satisfied all conditions precedent giving rise to the duty;
- there was
- a prior demand for performance of the duty;
- a reasonable time to comply with the demand unless refused outright; and
- a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay.
- No other adequate remedy is available to the applicant.
- On a “balance of convenience” an order in the nature of mandamus should issue
What Should I Do Before Getting A Writ Of Mandamus?
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. In some cases, we review and supplement the delayed Canadian immigration application as well give IRCC additional time to consider the supplemental submissions, prior to proceeding with a mandamus.
In an effort to make this guide useful to most readers, we ask that you contact us in order to schedule a free call as we take an individual approach to each file.
What Is Causing Delays In My Immigration Application?
Immigration Refugees and Citizenship Canada’s (IRCC) structural and operational issues have resulted in massive Canadian immigration applications backlogs and significant processing delays that have dominated the news over the last several years.
While the Federal government has committed additional resources to IRCC, it has done very little to address the underlying structural, operational, and cultural issues, and such it appears that backlogs and delays will continue to plague Canada’s immigration system in the near future.
While advocating for structural reform, we also fight for immigrant rights in Federal Court of Canada, and since June 2021, our firm has successfully prosecuted more than 500 writ of mandamus applications in the Federal Court, with most of our mandamus clients receiving a decision within 60 days of proceedings being started, and less than 5% of cases making it to a hearing.
Unlike other firms practicing in the area, we are highly specialized, and have built a mandamus specific litigation team. While we encourage you to read the complete guide below, please take a minute to contact us about your case, you will be provided with our fees, and instructions on how to book a free 15-minutes introductory call with our team.
What Are “Unreasonable Delays In Processing”?
There is no hard and fast answer when it comes to permanent residence applications, we are generally able to help once the application has been pending 1.5 to 3 times IRCC’ reasonable service standard.
Below is a brief table that we utilize as a threshold for delay with respect to certain classes of application:
|Application Type||IRCC’s Service Standard||A&T’s Threshold|
|Express Entry (CEC, FSW, FSTW, EE- PNP)||6 months||18|
|Non-Express Entry PNP||11||20|
|Tourist Visa||60 days||6-10 months *|
|Student Visa||60||6 – 10 months|
|Work Permit||60||6-10 months|
|Global Skills Strategy – Work Permit||14 days||6-10 months *|
|Super-Visa||112 days||6-10 months *|
|TRP||–||12-16 moths *|
The above are general criteria utilized by our firm, in some cases we are open to taking files that have been pending for less time than provided above.
Please note that we do not utilize IRCC’s “dynamic” processing times as these times are continually changing and often skewed towards backlogged cases.
We generally assess the delay in light of the stage of processing the application is stuck in as well as a number of other factors. Please feel free to email us to set up a call to discuss your case.
Security Related Delays
About 20% of our mandamus files are caused by security related delays. While security cases may take longer to be finalized, we find that in many cases, a decision can be issued within 2-4 months of mandamus proceedings being commenced, as IRCC puts pressure on the CBSA and/or CSIS to complete the assessment, which is often held up due to bureaucratic reasons. In addition, in some cases, the file is in fact ready to be finalized, and the mandamus “wakes up” the appropriate agency, which leads to a decision being issued.
That said, some security assessments can take longer and the mandamus file may proceed to a hearing. This requires the Court to find the case meritorious and to set a hearing date. Hearings are typically scheduled within 10-12 months of proceedings being commenced. Please note that in many cases where a hearing is scheduled due to a security related delay, IRCC finalizes the application before the hearing date. In other words, just because a hearing is scheduled, does not mean that the file will make it to a hearing. If a file does make it to a hearing it is important to note that the Federal Court has consistently held that blanket or general reliance on ongoing security checks does not constitute a reasonable justification for mandamus purposes. In plain terms, some degree of particulars for the delay must be provided.
What About Demand Letters?
If you have previously contacted IRCC asking them to finalize the processing of your application or even just inquiring about the application status, you have satisfied the “demand for performance requirement”. Despite this, in some cases we still begin the process with a persuasive demand letter that asks IRCC to finalize processing within 30-60 days prior to commencing proceedings. In most cases, if the aforementioned requirement is met, we go forward with mandamus proceedings, without a demand letter. In most cases a demand letter is yet another request that IRCC proceeds to ignore, whereas Court proceedings force the IRCC to take note of the matter which in most cases leads to a decision being issued.
What do I need to do to start the mandamus process?
After we sign a retainer agreement and an advance is provided to be held in our secure trust account, we start working on your matter.
It is important to note that you as our client do not need to do anything other than provide us with documents and instructions. We take care of the process from start to finish, and even if a hearing is scheduled, you do not need to attend it, as judicial review hearings proceed based on the paper record before the Court.
How Long Does It Take To Start The Mandamus Process?
Generally speaking, it takes our law firm between two to three business days from the receipt of the relevant documents to prepare a mandamus application.
We hope this guide has provided you with a valuable insight into mandamus applications, and you feel more confident about beginning the process.
To find out how Abramovich & Tchern can help you with your mandamus application, and other aspects of your immigration to Canada, contact our team today.