fbpx

IRCC’s Updated Processing Times, And Why the Writ of Mandamus Will Remain An Exceptionally Effective Remedy

By

A founding partner of Abramovich & Tchern and a skilled litigator, Lev focuses exclusively on immigration and refugee law. His immigration practice is focused on complex corporate and personal immigration and refugee law matters.
ircc processing time writ of mandamus

Updated Processing Times Reflect Massive IRCC Backlogs

On March 31, 2022, Immigration, Refugees and Citizenship Canada (“IRCC”) introduced a new “data-based” approach to expected processing times for permanent residence and citizenship applications. In other words, permanent residence and citizenship applicants will finally have access to processing times grounded in IRCC data as opposed to the previously provided “reasonable service standards”.

While Abramovich & Tchern Immigration Lawyers welcomes the new approach, as with many things IRCC related, it is hard to understand why such an obvious change was not introduced earlier, especially considering how important processing times are to permanent residence applicants.

At the same time, the new approach has resulted in some drastic changes (you can find IRCC’s processing time tool here). Some of the key examples are provided below (processing time measured in months).

Key Changes to IRCC Processing Times

Class of Application Pre-March 31, 2022 New Processing Time
Canadian Experience Class (CEC) 6 7
Federal Skilled Worker (FSW) 6 27
Provincial Nomination (PNP) – Express Entry 6 22
Grant of Citizenship 12 27
Parents or Grandparents Sponsorship (PGP) 24 32
Spousal or common-law Sponsorship – Inland 12 16
Spousal or common-law Sponsorship – Outland 12 19

The updated processing times were not a surprise as our law firm’s immigration litigation practice handles a substantial number of writ of mandamus applications at the Federal Court, and we track data across a wide range of delayed IRCC applications. FSW applicants make up most of our mandamus clients. IRCC citizenship processing delays make up the second-biggest mandamus client subset.

In the context of immigration litigation, a writ of mandamus is an order directing IRCC to issue a decision with respect to a pending application. Learn more about the writ of mandamus here and read the FAQs here and here.

The Writ of Mandamus Will Continue to Deliver Results

After IRCC’s new approach to processing times was announced, we received many inquiries from current and potential mandamus clients, asking about how the change will affect the effectiveness of the writ of mandamus application.

In short, I do not think that IRCC utilization of data-based processing times diminishes the effectiveness of the mandamus remedy. Here is why:

  • With the latest change, IRCC has finally begun differentiating between how long it should take to process an application and how long it is likely to take (if you don’t commence a mandamus application).
  • The question before the Court is not whether your processing time exceeds the expected processing time (27 months), but whether your actual processing time is longer than what the nature and/or complexity of the application requires.
  • If we take a Federal Skilled Worker (FSW) based mandamus application, it will be hard for the Minister (the Respondent in Federal Court proceedings) to seriously contest this point, given the fact that IRCC has maintained a six-month processing time since the introduction of Express Entry as well as the fact that the application is electronic which means that it can be processed from anywhere in the world as long as one has a computer and access to the internet.
  • In addition, the Court is not going to accept reliance on Covid19 to justify the delay in processing without particulars being provided, something the Minister is not able to do, given that the delay is in fact caused by an archaic and dysfunctional system exposed by Covid19.
  • At this point in time, Covid19 is as responsible for the 21-month delay in processing an FSW application or a 15-month delay in the processing of a Citizenship application, as rough weather is for the drowning of a rudderless ship full of holes. As a side note, can you think of an entity not dealing in physical goods that are still relying on Covid19 to explain delays or operational disruptions? If you can think of one – email me for a discount on your mandamus file!
  • Finally, when it comes to the balance of convenience, the Minister will again have a hard time arguing that IRCC should not be ordered to process an FSW application when all one needs is a computer and when IRCC is capable of processing similar applications (CEC) in 7 months. The damage caused by the inexplicable and unexplained delay to the application further diminish IRCC’s chances of success on this point.

While the arguments presented above will likely result in a Court issuing a writ of mandamus directing IRCC to process a delayed application (should the matter make it to a hearing), their persuasiveness, coupled with the indefensibility of IRCC’s position, has resulted in our longest permanent residence mandamus file taking around 4 months to finalize, and not a single mandamus file making it to the leave stage (over 150 applications filed).

Most of the mandamus files we work on see approval within 60 days of proceedings being commenced at the Federal Court. In short, we do not expect the changes to processing times to change the effectiveness of the mandamus remedy.

If you are tired of waiting for IRCC to approve your application, connect with us today to evaluate your options, and get your application processed in a timely manner.

Lev Abramovich

A founding partner of Abramovich & Tchern and a skilled litigator, Lev focuses exclusively on immigration and refugee law. His immigration practice is focused on complex corporate and personal immigration and refugee law matters.