Authored by Pantea Jafari, Managing Lawyer, Jafari Law.
Set to be an internationally coveted pathway for global entrepreneurs to contribute to Canada’s innovation economy by combining immigration with innovation, the Start-Up Visa (SUV) program is now plagued by lengthy delays, arbitrary refusals, and systemic inefficiencies that threaten its very purpose. Applicants and their legal representatives are now raising alarms about serious procedural and structural failings in the program. This article outlines the most pressing issues, explains the legal efforts to challenge them, and invites affected parties to contribute their experience in the pursuit of accountability and reform.
Untenable processing times and unfair prioritization
IRCC’s advertised processing time for SUV applications is currently 40 months. Yet, internal communications between IRCC agents confirms they know the estimate is false – as of September 2024, the SUV application inventory exceeded 44,000 files which, by Steven Meurren’s calculation may lead to processing times of 11+ years based on present targets. With the program continuing to receive inventory unabated and given the recent announcement to prioritize applications from certain designated organizations (DOs) and sectors moving forward, the wait time could climb even more.
Start-ups, by nature, cannot function under this kind of uncertainty. Business plans become obsolete, team members relocate or lose status, and opportunities disappear. A delay of this magnitude renders the program virtually useless for its intended purpose—economic contribution and innovation.
Refusals Based on Flawed or Technical Grounds
Recently, many applicants have faced unexpected rejections for reasons that appear disconnected from the merits of their applications, and on issues that were never treated as determinative in the past. Among the most common are:
- Missing Confirmation of Commitment Certificate (CC)
IRCC is refusing applications on the basis that the Commitment Certificate from the DOs was “not received”, seemingly based on technical issues with its designated email that was failing to send auto-replies for a brief duration. Even where applicants have proof of submission or DOs have affirmed they have sent it, the lack of the auto-reply is treated as a fatal issue. - Administrative errors by DOs in Contract Terms
Some applicants are being refused for the DOs having inadvertently included a standard payment clause in their agreements, left over from their non-immigration clients. Despite the DOs’ proactive acknowledgement and rectification of this error, and despite their explanations being accepted and leading to approvals of even team members, they are being treated as fatal in some cases.
- Revisions to Letters of Support (LoS) no longer being accepted
Start-up teams often need to adjust their composition over the course of the long application process. While changes to the composition of the founding team, including changes in designation of essential applicants, were routinely accepted throughout the program’s history, IRCC is suddenly “locking in” the initial Letters of Support, and refusing applicants on the basis of the refusal or withdrawal of applicants initially designated as essential.
- Unwillingness to Considering Humanitarian Factors
The fast and fluid nature of innovative business ventures lead to many changes to circumstances and team members. Where applicants request consideration of humanitarian factors and the hardships arising from such changes, including detrimental impacts for Canadians, officers are fettering their discretion to consider them. They regard IRCC’s directive to refuse applications based on the outcome of essential applicants as negating their authority under section 25(1) of the Immigration and Refugee Protection Act.
Legal Efforts to Challenge These Systemic Problems
The pattern of inventory-overwhelm and seemingly manufactured refusals is not unprecedented. In Tafreshi v. MCI (2022 FC 1089), the Federal Court found that IRCC made a “deliberate and calculated decision” to change the process and standard for assessment of Self-Employed applications without notice to applicants – a decision it found to have violated their legitimate expectations, invalidated all refusals pursuant to those decisions.
Drawing from that precedent, our firm is leading two group litigations to address the inventory management issues in the SUV program. The first is for the onslaught of unexcepted SUV Refusals of late, and the second is to address to increasingly unacceptable but expected climb of processing times.
If allowed to continue unchecked, the dysfunction of the SUV program could erode global trust in Canada’s immigration system—and deter the very kind of entrepreneur the country seeks to attract. Systemic reforms, not systemic denials, are needed.
Innovation should be met with opportunity—not a bureaucratic wall.
