April 20, 2020

Excellent News for A Change! Moving Forward with Immigration Appeals and Federal Court Applications

Although suspensions remain in place at the Immigration Appeal Division (IAD) until June 1st and the Canadian Federal Courts until May 15th, 2020, respectively, in light of COVID-19 except for urgent matters, all parties are exploring moving immigration cases ahead during the suspensions. In communications I had with both the IAD and the Federal Courts as well as the Canada Border Services Agency (CBSA), there is a recognition that we all want to avoid serious access to justice issues and lengthy backlogs when immigration court and tribunal suspensions are lifted.   

The IAD is exploring how to issue immigration decisions during this time, how to recommence immigration alternative dispute resolution conferences by telephone and resolve other hearings electronically or by phone as well as deal with other immigration cases or legal issues that can be completed in writing. The CBSA is also examining how they can begin to provide immigration decision records electronically so counsel can continue preparing their cases. 

Both the IAD and the CBSA have agreed to accept immigration documents electronically from counsel, which is a big step forward.  Any immigration case that proceeds during this time will occur only virtually or by telephone and where it can be completed safely and supported technologically by all parties – including witnesses in some cases. The Federal Court similarly is open to completing immigration matters electronically and in writing.

Based on the latest medical information, it appears that physical distancing and heath requirements may remain in place for several months with further interruptions anticipated until and if a vaccine develops or some other form of medical treatment. However, as I set out in my March 23rd, 2020 Ten COVID-19 Reasons for Optimism Inside and Outside the World of Canadian Immigration, a new way of moving forward is beginning to emerge which is excellent news for immigration applicants, spouses, children and other family members desperately seeking to be reunited, or others seeking to remain or enter Canada.   

Not acting now could result in serious access to justice issues.  For example, once courts and tribunals reopen we could well see crippling backlogs and difficulty accessing representatives, which will likely result in missed court deadlines, procedural fairness issues and prejudice to applicants and more self-represented applicants. So, as we move into a world of more extensive electronic litigation in the interim, this will benefit all parties in the long run if we can find immigration cases to complete now.  Cases resolved remotely during this delay will ease the backlog when suspensions become lifted. 

To this end, we encourage individuals challenging cases at the IAD or the Federal courts to find ways to move forward. Speak to your representative.  If you do not have one and are considering seeking assistance, do so now.  Avoid the inevitable rush and pressure when the courts fully reopen. We must all do our part, lawyers, consultants and clients, to advance immigration cases where possible, again safely and where technologically supported, to preserve access to justice even during the most trying of times.

As always, thank you for reading and wishing you and yours, strength and safety.