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Holding the new backlog task force to account as Canada’s immigration backlog continues

By CILA on août 22, 2022

This guest article was authored by Laura Schemitsch, Immigration and Refugee Lawyer, Race & Company LLP.

On August 20, 2021, Immigration, Refugees and Citizenship Canada (IRCC) announced the launch of a new Permanent Residence Online Application Portal (‘PR Representative Portal’) that would enable authorized paid immigration representatives to submit permanent residence (non-Express Entry) applications electronically on behalf of their clients. This new portal was separate and apart from the Authorized Paid Representative Portal that was already in place for representatives to submit temporary residence applications and permanent residence applications under Express Entry electronically. The new PR portal became available to representatives in September 2021. Though paper (mail-in) applications for permanent residence are still available to clients and representatives, IRCC has indicated that their intention is to move to primarily electronic applications across almost all streams. IRCC’s guidance seemed clear that the goal was to make a quick shift from paper to online applications. The purported purpose of the new PR Portal was to modernize the process for submitting permanent residence applications and reduce processing delays.

On January 31, 2022, Minister Sean Fraser lauded IRCC’s efforts at modernizing Canada’s immigration system and cited the transition to an online application process as facilitating the “minimization of COVID-19 related delays associated with paper applications and to provide clients with immediate confirmation their application was successfully submitted.” Fast forward to May 2022 and Canada’s immigration backlog sits at a staggering 2 million plus applications, raising questions about the supposed efforts at modernizing the system and reducing pandemic related delays.

It has become apparent in recent months that it is taking significantly longer to open and put into process PR applications submitted via the PR Representative Portal than it is to open PR applications submitted by paper. Applicants know their applications are complete and in process once they received an Acknowledgement of Receipt Letter or ‘AOR’. An AOR is not sent by IRCC until an application has been opened and checked for completeness. An applicant will not receive an AOR, and the application will be returned if it is incomplete, fees are missing, or a program is paused/closed, or a cap has been reached. Since the launch of the PR Representative Portal, representatives have reported significant delays in receiving AORs for applications submitted online, including spousal and dependent child sponsorships, and Provincial Nominee Program (‘PNP’) applications, as well as Temporary Residence to Permanent Residence Pathway applications submitted through a different online portal. These delays in checking for completeness and issuance of AORs are highly problematic and cause hardship for Applicants.

Delays in receiving an AOR causes applicants stress when carefully prepared applications are left in limbo for months after submission through the online portal, particularly when IRCC stated that the new system would decrease delays and streamline the application process. In practical terms, delays in receiving an AOR impacts applicants and their families such as those applying under the Spouse or Common Law Partner in Canada Program. These applicants are typically eligible to apply for an open work permit to be able to work in Canada while they wait for a decision on their application during the approximate 12 months processing standard. However, without an AOR these applicants are unable to apply for an open work permit, causing financial stress and strain on the applicants and Canadian citizens and PRs who are sponsoring them. Similarly, applicants under the special Temporary Residence to Permanent Residence Pathways and Provincial Nominees are unable to apply for an interim bridging open work permits without an AOR.

Applicants who apply for in-Canada spousal sponsorships by paper can include their work permit applications with their applications for permanent residence. Some representatives who have applied for in-Canada spousal sponsorships and work permits by paper are reporting that they are receiving some work permits within 4 months of submission. Applicants who have applied via the PR Representative Portal are having to wait 5 months or more for an AOR before being able to submit a work permit application online. Work permit applications submitted online in Canada are currently taking 139 days to process. This means that while some of those who included their work permit applications with their paper spousal sponsorship applications are receiving their work permits in approximately 4-5 months, those who applied online will need to wait at least 9 months or more to have their work permits processed.

Applicants for PR under provincial nominee programs require an AOR to apply for a bridging open work permit. It appears that IRCC is currently issuing AORs for PNP applications submitted by paper in late 2020. Without an AOR these PNP PR applicants, many of whom live and work in Canada are not able to apply to extend their work permits, and in some provinces, their provincial health insurance, or drivers licenses. There is no indication that online PNP PR applications are being opened any faster than their paper counterparts.

These major discrepancies have created a situation where there is no incentive for representatives or applicants to follow IRCC’s directive to use the PR portal despite the department’s objective to take all applications electronically as part of IRCC’s modernization efforts. In fact, the inability to include a work permit application creates a disincentive, at least for in-Canada Spousal sponsorships. Without the timely issuance of the AOR when filing online, applicants are prejudiced and lose valuable time and income. As with other online applications submitted through the Authorized Paid Representative Portal, it would not be difficult for IRCC to have an electronically generated AOR to facilitate an online work permit application. This is especially important given that applicants’ face hardship and uncertainty due to excessive processing times from inside Canada to get an open work permit even when they are in possession of an AOR.

Advocates are open to IRCC’s modernization efforts and want to work with IRCC to improve the current status quo and immense backlog which continues to negatively impact the goals and objectives of Canada’s immigration laws, namely, to maximize the social, cultural, and economic benefits of immigration, including family reunification, through fair and efficient procedures. Considering these emerging issues, IRCC must demonstrate that modernization efforts also offer incentives for applicants to apply online so that there are no significant discrepancies between the government’s policies and practice. Practitioners are reluctant to advise spousal and common-law partner clients to file their applications on-line, as the costs are too high in terms of emotional stress and lost income. One colleague recently wrote about her practice not to use the on-line application platforms for family class sponsorship application until IRCC can demonstrate the advantages of using the new Permanent Residence Online Application Portal.

On May 12, 2022, Minister Fraser appeared before the The House of Commons’ Standing Committee on Citizenship and Immigration regarding IRCC’s  processing times and the backlog. Minister Fraser told the committee that IRCC’s goal is  to return pre-pandemic service standards in 2022. He also testified that IRCC will become more transparent on actual processing times where service standards cannot be met.

Time will tell whether IRCC can achieve their goals. In the interim, lawyers must pursue strategies that meet the best interests of their clients. In some cases, this means relying on old fashioned paper-based applications.

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