November 17, 2020
Practicing Immigration Law in the Age of COVID-19
As the world looks to complete a year of living with the COVID-19 pandemic, the phrase, ‘new normal’, has become commonplace in expressing the ways in which we have had to adapt to changes in our daily lives. For many immigration lawyers, ‘the new normal’ has meant reckoning with a great deal of uncertainty that comes with ever-changing pandemic measures and delayed processing at Immigration, Refugees and Citizenship Canada offices.
Since March 2020, foreign nationals have been largely restricted from entering Canada, with a number of exemptions for certain family members of Canadian citizens and permanent residents, temporary foreign workers, and some students, among others. Even when a person falls under an exemption, the Canadian government still requires that they come to Canada for an “essential purpose.” Especially in the first few weeks of the pandemic measures, “essential purpose” was a fairly new concept for everyone involved – government and advocates alike. Stakeholders had to grapple with the limits of the term, as the only statutory definition is that the purpose of the visit must not be “optional” or “discretionary.” Is it “optional” to come to Canada reunite with one’s spouse during a pandemic? How about attending the birth of one’s own child? Or saying goodbye to a dying loved one? For a long time, the answers to these questions were ambiguous, and immigration advocates faced the challenge of explaining to clients that as compelling as their reasons for wanting to travel to Canada may be, it was extremely difficult to assess their chances of success. The Canadian government gradually clarified some of the questions around the application of certain travel restriction exemptions, streamlining rules and processes regarding the entry of immediate family members, extended family members, and entry based on compassionate grounds.
Part of an immigration lawyer’s job is to set out an immigration plan with their clients, considering applicable laws, procedures, and the clients’ personal circumstances. The service disruptions caused by the pandemic at IRCC’s visa offices in Canada and around the world has made immigration planning quite challenging. As IRCC has been prioritizing processing visa applications of those travelling for an essential purpose, most other types of applications are likely to sit in queue indefinitely, until the pandemic’s trajectory changes dramatically for the better. The protracted processing times means many individuals’ and families’ futures in Canada will be uncertain for a very long time making it difficult for immigration lawyers to advise on the suitable route for their clients to obtain or maintain their status in Canada.
Immigration is a volatile area of law, with policies changing frequently depending on the government of the day. It has always been important for immigration lawyers to keep abreast of these changes. With the COVID-19 pandemic, the challenge to stay current with and be responsive to policy developments has increased exponentially.