May 26, 2015

Early Resolution – a valuable tool, but make sure you are fully informed!

Lengthy processing times are a major source of frustration and anxiety for those involved in the Canadian immigration system. For applicants or appellants separated from their family members, these timelines can be especially distressing. The appeal division at the Immigration and Refugee Board is no exception, as appeals in Toronto are currently taking close to two years to be scheduled, and even longer in some cases.

The early resolution process at the Immigration Appeal Division (“IAD”) aims to streamline appeal processing by identifying certain cases which have the potential to be resolved without the need for a full IAD hearing. At times, an appellant will be asked to provide written submissions in support of the appeal (called a “paper hearing process”). The Hearings Officer representing the Canadian Border Services Agency (“CBSA”) will be given the opportunity to respond and ultimately render an opinion on whether early resolution is appropriate. However, it can be very frustrating when the Hearings Officer’s response to a comprehensive package of legal submissions and evidence is a one-line statement that the case is “not suitable” for early resolution and that a full hearing is required. That said, if the Hearings Officer does consent to allowing the appeal through early resolution, then this is an efficient and effective way to resolve the matter, which certainly benefits all parties.

Appellants can also be streamed to attend an Alternative Dispute Resolution (“ADR”) conference, which is an informal hearing involving the appellant and his/her counsel, a Hearings Officer (again, representing the CBSA), and an Early Resolution Officer. In this process, the appellant will submit a package of evidence and submissions before the ADR conference, and the Hearings Officer will question the appellant at the conference to see if the issues can be resolved without a full hearing. This process is less formal than an IAD hearing, as there is no Member present to render a decision (rather, it is the parties who are attempting to resolve the matter with the help of the Early Resolution Officer), and the hearing is not recorded.

Again, while an ADR conference can be a valuable tool, it is very important to consider the likely outcome. For example, in a spousal sponsorship refusal, the concerns may stem from the intentions of the applicant spouse overseas who is being sponsored. In these types of cases, regardless of how well prepared the sponsoring appellant is, or how strong the evidence and submissions are, the Hearings Officer may still decide that they simply need to hear from the applicant spouse to overcome the credibility concerns – meaning that a full IAD hearing will be required. This can be very disappointing for an appellant who has done everything possible to try to make the ADR process work. Also, if ADR is not successful and a full IAD hearing is required, then this can cause longer delays, as the appellant will be put at the back of the queue for regular IAD scheduling.

While it is certainly not the usual course of action to recommend that an appellant opt out of any process which could resolve their appeal, in certain clear cases it may be advisable to wait for a full IAD hearing. On the other hand, for other appellants it may be beneficial to proactively apply for early resolution, depending on the full circumstances of the case and the nature of the refusal.

Overall, early resolution can simplify matters tremendously, and the Immigration and Refugee Board is continuing to improve the process. However, it is important that appellants are fully informed about how all of these processes work and interrelate when deciding how best to proceed with their particular case.

For more information on Immigration Appeals, please click here.