We’ve seen considerable interest in writ of mandamus applications from people whose immigration applications are disrupted by an Immigration, Refugees and Citizenship Canada (IRCC) delay. Even a slight hold-up in proceedings can cause significant anxiety and frustration.
With this in mind, we decided to expand on our Writ of Mandamus FAQ with this new Q&A post. We’ll address some of the common questions we continue to receive to help you understand exactly what a writ of mandamus is, prerequisites for seeking one at the Federal Court, and more.
What Is a Writ of Mandamus and What Is It Not?
A Federal Court application seeking a writ of mandamus asks the Court to order IRCC to issue a decision regarding a delayed immigration application. An applicant may request a writ of mandamus to be filed for any immigration-related application delays, such as:
- Citizenship application delay
- Permanent residence application filed via Express Entry delay
- Application for a Federal Skilled Worker (FSW) processing delay
- Application for a temporary resident visa delay (a student visa processing delay, work permit processing delay, or visitor visa processing)
- Electronic Travel Authorization (ETA) processing delay
- Criminal rehabilitation application delay
- Spousal or common law sponsorship delay
- Parental sponsorship (PGP processing) delay
However, a writ of mandamus is not a letter to IRCC submitted via one of IRCC’s various portals or a request to a consulate.
What Are the Key Prerequisites for Seeking a Writ of Mandamus at the Federal Court?
While you can find the general prerequisites in our Writ of Mandamus FAQ, here’s a quick breakdown.
A delay affecting the application in question
While we only utilized this remedy for exceptional delays before the COVID-19 pandemic, given the sizable backlog IRCC is delaying, IRCC is likely to action the relevant application to avoid litigation, even if the delay may not justify granting the writ when proceedings commence. Even though we haven’t had a case related to COVID-19 make it to a hearing, even if your case reaches that stage, an extra six to 12 months will likely be added to the delay by the time it does.
As a result, in the worst-case (and most unlikely) scenario, you would still be able to present a strong argument regarding the delay at the time of the hearing. So, there is nothing to lose by seeking a writ of mandamus at Federal Court.
A prior demand for performance
You cannot proceed with a writ if you haven’t asked IRCC to complete processing your application yet. Federal Court jurisprudence states that a simple update request is enough to meet this requirement, and most of our clients do this through a Case Specific Inquiry submitted via webform.
Do I Need to Switch to Your Law Firm if I Currently Have an Immigration Representative?
No — your immigration representative can continue to represent you before IRCC. We will represent you in Federal Court proceedings.
Does My Location Matter When I File My Application?
Your location at the time the Federal Court proceedings begin has no effect on your application. We can help you with a Canadian immigration application processing delay whether you’re in China, India, Russia — even outer space!
Is the Process Expensive?
While our firm operates as a business, our goal is to help as many people as possible reach their Canadian immigration goal. With this in mind, we have split the mandamus fee structure into three distinct stages:
- Filing and service of the Notice of Application (to commence proceedings)
- The perfection of the Application for Leave and Judicial Review
- The hearing stage
Most of our clients see movement or approval after the first stage: some perfect, and not one case has reached the hearing or leave order stage so far. Fees are paid separately for each stage, so if your application progresses after we commence proceedings, you don’t need to pay us for perfecting the Application for Leave and Judicial Review. We’ll discontinue proceedings instead.
What are the Benefits of Perfecting an Application for Leave and Judicial Review Seeking a Writ of Mandamus?
While the Notice of Application serves as a threat of litigation (which is often sufficient), perfecting the Application for Leave and Judicial Review tells IRCC that there is now a proper legal proceeding before the Federal Court to which they must respond. The easiest way for IRCC to get rid of this litigation is to approve the delayed immigration application. IRCC also understands that there’s a good chance it will lose if the matter goes to a hearing.
As such, some clients chose to perfect the Application for Leave and Judicial Review even after they saw movement in the delayed application. Others chose to do so because they saw no movement after stage one.
Won’t IRCC Rely on COVID-19 to Justify the Delay?
Firstly, IRCC does not need to file a substantive response to the commencement of proceedings, so COVID-19 will not be raised as a justification immediately after the start of the process. Most mandamus cases we deal with progress after the first step. IRCC has 30 days to file its responding materials after a matter is perfected. Quite often, IRCC does not need to do so because the client receives an approval.
In cases where IRCC does have to file responding materials, it raises COVID-19 as an explanation. However, it’s likely that the presiding judge will understand that COVID-19 cannot possibly justify the delay in question.
Irrespective of the arguments made by IRCC, it ultimately understands that the best way to get rid of the proceedings is to approve the delayed application.
Should I Write to IRCC Again, Contact My Member of Parliament Again, or Start the Writ of Mandamus Process?
IRCC faces huge delays and no longer responds to case-specific inquiries in a substantive way. And getting your member of parliament involved will do nothing in most cases: at best, IRCC will provide a response stating that the application is in order and in line for processing.
However, a writ of mandamus forces IRCC to respond.
We understand your frustration with IRCC, and recommend that individuals who are able to afford it proceed with a mandamus. Our practice indicates that this is the best way to get your delayed Canadian immigration application moving or approved. One of the best parts of our law practice is fighting for our client’s rights. We believe in the mandamus process, and take great joy and pride in helping our clients.
Must I Have My GCMS Notes to Proceed?
Having your GCMS notes can help us understand when your application was last worked on and its processing stage, but there’s no need for us to review the notes before proceeding.
How Can I Discuss My Case Before I Hire Your Law Firm?
We take pride in offering a personalized client experience and provide all prospective mandamus clients with a free 10-minute consultation. Get in touch with our experts to discuss your Canadian immigration application processing delay today!