As I wrote a few weeks ago, successfully sponsoring a foreign spouse to come to Canada is more difficult than the Immigration, Refugees and Citizenship Canada (“IRCC”) guide makes it seem. Even the strongest applications can be denied. Immigration officers routinely find the most committed and long-standing relationships to lack genuineness or of having been entered into for an improper purpose. These negative decisions are often flawed and appealable. So, wasting no time, affected couples appeal these negative decisions to the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board of Canada, hoping for speedy resolutions. What they don’t know is that, at that point, they still have years of agonizing waiting left ahead of them.
The IAD hears several types of appeals. Aside from sponsorship appeals, the IAD also hears appeals of removal orders and appeals by permanent residents who have been found not to have fulfilled their residency obligation. According to IAD Rules, with sponsorship appeals, the sponsor (a Canadian citizen or permanent resident) has 30 days from the date of receiving the negative decision to file a notice of appeal with the IAD. Within 120 days of that notice, the Minister of Citizenship and Immigration must provide an “appeal record” containing all documents relevant to the rejected application to both the IAD and the sponsor. The IAD then schedules a date for the appeal to be heard. The IAD website claims that, on average, it takes the IAD “about 10 months to decide an immigration appeal.”
Of the above timelines, only the 30-day deadline for filing an appeal is strictly enforced. If the appeal is filed after the 30-day period, the sponsor will also have to make an additional detailed application asking for an extension of time. The appeal will be allowed to proceed only if those arguments are extremely persuasive.
The Minister is never held to the same unforgiving standard. The 120 day deadline for providing the appeal record is routinely ignored, with appeal records usually being provided months too late, without any explanation.
The 10-month “average” is also an understatement. From my experience, and the experience of my colleagues, it takes an average of two years for a spousal sponsorship appeal to be heard by the IAD, and then another month or two before a decision on the appeal is made.
Other delays are also not uncommon. Sometimes, an IAD Member is double-booked, and a hearing has to be cancelled at the last minute. Other times, the Minister’s counsel is unavailable, which almost always results in the hearing being adjourned. Any time a hearing is rescheduled, at least three more months of painful waiting are added to an already lengthy process.
There is only one hope for a somewhat speedy conclusion to this ordeal: Alternative Dispute Resolution (“ADR”). ADR is a one-hour meeting between the appellant, the Minister’s counsel, and a Member of the IAD who acts as a dispute resolution officer. The purpose of these meetings is to have candid and informal discussions about the issues at appeal, and try to reach a resolution without having to go to a formal hearing. Appellants are allowed to present evidence, and IRCC’s counsel has a chance to question the appellant. The IAD boasts that “about half of the cases that go through ADR will have a final result without the parties having to attend an oral hearing.”
With such impressive statistics for reducing IAD’s caseload, you would expect every sponsorship case to go through ADR. Not so. It is entirely at the IAD’s discretion which cases get scheduled for ADR, and there are no publically-accessible guidelines on what the IAD considers in making this decision. There is no obligation on the IAD to explain why it didn’t schedule a matter for ADR.
Appellants are, of course, allowed to write to the IAD requesting an ADR even if one hasn’t been ordered. However, that often proves to be futile, since there is no duty on the IAD to give detailed reasons for refusing these requests. For instance, I have seen the IAD refuse to set a matter down for ADR because the issues at play were “too complicated for ADR”, without in any way explaining how they were too complicated. These decisions are effectively final.
In this way, those who appeal spousal sponsorship refusals are often left to wait years before having a chance to argue their case. Even if successful, it usually takes several more months until their spouse can join them in Canada.
This is simply too long. Given Canada’s vocal commitment to family reunification, a more-than-two-year wait period to appeal a spousal sponsorship decision is appalling. IAD’s inability to get through these cases in an expeditious manner leaves families fractured and hurting.
Typically, couples spend the vast majority – if not the entirety – of this time apart. To remain eligible to be a sponsor, the Canadian spouse has to stay off social assistance, which usually means working full-time. This leaves little time (and often little money) for international travel to visit their loved one. As for the foreign spouse, the chances of them being granted a visitor visa to Canada while a spousal appeal is pending are effectively zero. As you can imagine, such a long period of separation often takes a grave psychological and emotional toll on the couples.
The situation is even more distressing when there are children involved. The exorbitantly long processing times of spousal appeals cause children to be separated from one of their parents for years. In place of a father or a mother these children get a disembodied voice over the phone or a face on a computer screen, and suffer as a result. The number of academic studies confirming the negative effects of being raised by a single parent are staggering. And yet, delays at the IAD continue without any sign of improvement.
Words can only go so far to describe the anguish felt by these families, kept apart by the sluggish workings of the IAD. When I meet with clients going through these lengthy appeals, their sadness and longing for their life partners is palpable. Every word they speak is seeped in it. Every sentence is a struggle, a fight to hold back tears a fight they often lose.
This is more than typical administrative or bureaucratic backlog. There are real people and real heartbreak in each of these cases. Every day of delay in these appeals brings suffering. It only takes one time hearing a crying mother tell you that her young daughter routinely asks her “why do all other kids have real dads and mine lives inside the computer?” to know that such a system needs a major rework.
Leo Rayner is an immigration lawyer with Legally Canadian. Reasonable Doubt appears on Mondays.
A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer. The views expressed in this article do not necessarily reflect those of Legally Canadian or the lawyers of Legally Canadian.
