For those that wonder why I have been posting less frequently than I used to do, one of the major reasons is that I have been putting significant time into building my immigration appeals practice (currently mostly spousals, residency, misreps, and some criminality).
I had the ability to learn after one of the very best at my old Firm, and I realize it is a practice quite suited to the younger, energetic lawyer who is willing to invest time into their clients and their cases. Through this process, clients have called me an ‘honourary family members,’ a designation that for me, more so than any third-party recognition, gives me true value through work.
I wanted to write a simple and short post because I have been seeing both a discouraging and worrying level of poor representation not only from those who do not generally do appeals work but also those who some would one would assume are the best/top immigration lawyers in Canada.
These two groups are lumped in for very different reasons. For the first, it is due to inexperience – not having spent enough time seconding or attending (as I did often during my articles) both hearings but also the preparation sessions with clients. Lack of awareness of rules, deadlines, and procedures can be killers in the final appeal.
For those in the latter category, it often is a time thing. Good, solid immigration appeal work takes time. This includes time getting to know your client, generating document lists to obtain, reviewing those documents, determining whether alternative dispute resolution is on the table, coordinating around hearing timing, preparing clients for direct examination and cross-examination, updating the file (as required), and ultimately delivery strong submissions. It is a full-service performance combining litigation and solicitors skills. For many lawyers who are eager to fight the next big constitutional battle or tackle legal interpretation, this often times pure factual engagement process (especially in the case that rely solely on humanitarian and compassionate grounds) is a time suck. Some lawyers will try and pass these preparation tasks off to an assistant, something that this work cannot be done properly by without solid direction. Others will even forgo preparation altogether and show up on the day of the hearing. Such a strategy is risky. Without having gone through questions in advance with your clients and applicable witnesses, communication lines are very likely going to break down between lawyer and client and between the answers of clients and witnesses on the day of the hearing. These gaps will lead to negatively credibility findings (when many times it is simply poor preparation, stress, and anxiety that are the root causes).
When hiring a lawyer/consultant [who I will just refer to lawyers moving forward, as a majority of good tribunal reps are lawyers rather than consultants] to do an appeal case – first of all, sign up for a consultation. Before paying a lump sum get some paperwork in front of the lawyers and work through the essential facts. That consultation will allow you gauge both the legal analysis and the factual analysis strength of who is helping you and can determine whether there is sufficient rapport to ensure the essential facts get revealed. As a client, you want to ensure that you are providing a full factual record as well. Details you may think are irrelevant or private (circumstances of family members back home, country conditions, a child with a learning disability, reasons for a misrepresentation, or a previous application) are very crucial to the overall circumstance. The lawyer should show some proactivity in gathering this documentation.
The real key question you want to ask your potential counsel though, which will differentiate those who know the process and can execute a good appeal prep process, and those who will may leave you feeling uncomfortable, concerned, and ultimately unprepared is the following:
“What is your preparation strategy and schedule for preparing my appeal?”
It is a simple question. Much simpler than the question of how much will it cost (which frankly, is highly factor dependent on how much of an uphill battle preparation will be, whether interpreters will be needed, and whether you are able to handle the paperwork).
The lawyer should be able to draw you a roadmap quite early in the process. Using the hearing date (and the potential fallouts) as the end point, when will the schedule be for disclosure (or backing up, what are the timelines for when you need to file your appeal, when about will you get the Appellant’s Record or “Blue Book”, when should the Alternative Dispute Resolution (“ADR”) requests be submitted, disclosure, and how will appeal preparation work. For complex appeals, this may be a rotating schedule (3-4 hours a day) with relevant witnesses, culminating in a run through with full direct exam, cross exam, witnesses, and interpretation. They should also demonstrate the right balance of cautious optimism where the facts support it, without putting down a percentage of success (as I have discussed in previous posts).
If none of this is being discussed or even mentioned – I would dig and potentially search elsewhere. Without these details, it is very likely for the appeals to go off the rails and become a rush job in the last 20 days before the hearing. More often than not, this is not enough time to present the strongest foot forward.
When it comes to the question of whether I think an appellant should do an appeal on their own, my answer is – no.
Why? Because a lawyer is your voice. Through direct examination we can present your case and your facts. On your own you are subject to the questioning and direction of the member of the Minister’s counsel – one neutral and one on the side of the Government. By yourself, assuming you are also a witness, the appeal will be a show without a director.
Over the next few weeks, I will be writing more posts about appeals and as well judicial reviews (two areas of my budding practice) to share not only with applicants who seek counsel but also junior counsel who are seeking to engage in this area. I note that I am by no means a senior counsel (and don’t have all the answer) but these unique nuances of practice incorporating rules of Court and Tribunal can allow for us to explore more complex and less seen scenarios, that are increasingly showing up in litigation. With an increase in settlement of straight-forward judicial reviews and changing Immigration Appeal Division Rules shortly (which I had the pleasure to consult on), navigating the margins or the obscure will become more and more useful in our practice toolbox.
Appeals – do them. I love them! I would love to assist on even more of them.