Tag Archives: Express Entry Refusals

Expressly Challenging: A Numerical Analysis and Three Takeaways from IRCC’s 2015 Express Entry Report

On April 1, 2016, Immigration, Refugee and Citizenship Canada (“IRCC”) released it’s Express Entry Year-End Report tracking the progress of its economic immigration management system, Express Entry, since its inception in 1 January  2015.

Acknowledging the program’s growing pains throughout the report, overall IRCC seems to  insist that Express Entry has met its objectives so far. In the report, IRCC writes:

Express Entry was designed with three main objectives in mind: 1) flexibility in selection and application management, 2) responsiveness to labour market and regional needs and 3) speed in application processing. Although there have been adjustments to the system during its first year and policy concerns expressed by stakeholders, Express Entry has met its expectations.

This report,  Express Entry Year-End Report (EN) is filled with very informative statistics as to how Express Entry has been operating so far.

In my mind there are (at least) three important takeaways that I will explore in this post:

#1 – English/French Language and Canadian Temporary Residency appear to be major assets for Express Entry

Currently, official language skills make their way into economic immigration in several ways.

First, as a baseline requirement, an individual who wishes to qualify for the Federal Skilled Worker program needs CLB 7+. Scores lower than this would make the applicant ineligible for assessment on the initial points grid. For the Canadian Experience Class. there is also a requirement that the Applicant meet the language requirements of CLB 5+ for NOC B and CLB 7+ fpr NOC 0, A positions.

As provided by IRCC:

If an applicant has work experience in both NOC 0, A or NOC B occupations, the applicant must satisfy the officer that they meet the minimum language proficiency threshold for the skill type/level in which they have obtained most (i.e., more than half) of their qualifying work experience [R87.1(2)(e)].

Once in Express Entry, language factors itself in up to 410 of the available 600 points (360 for most candidates). Those without strong language scores will inevitably be stuck in  a Comprehensive Ranking Score (“CRS”) range currently not being invited to Apply for Permanent Residency.

The report seems to concur with this theory. Looking at the top 10 source countries of citizenship for Express Entry, one can adduce that English/French language skills poke its way into the selection process.

The report listed the top 10 countries of citizenship for those who receive Invitations to Apply (“ITA”) allowing them to apply for permanent residency via an electronic Application for Permanent Residency (“eAPR”). You will note that 8 of the 10 countries listed have English or French as an official language.

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Countries of residence also appear to follow a similar trend, with the added fact that a large majority of those successful in obtaining an ITA reside in Canada. These are individuals who can we deduce have first come to Canada, likely as temporary resident workers or students.

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I do wonder what percentage of these stats are skewed by the use of authorized representative portals but nonetheless it still suggests a key trend that language and Canadian residence matter.

Perhaps, the above stats change the way we as practitioners may want to advise those without Canadian temporary residency/work experience. Rather than suggesting that the client “do another language test and increase their scores”, there may be some benefit to crafting a short-term strategy (based on work or study) that could potentially lead to eligibility under the Canadian Experience Class. The added benefit is such a strategy would likely increase their possibility of obtaining a Labour Market Impact Assessment (“LMIA”) based offer of arranged employment or a Provincial Nomination.

You can also see this reflected in the fact that final decision processing for Canadian Experience Class is 1.3 months faster than for Federal Skilled Worker presumably due to the scrutiny required with overseas-based qualify work experience.

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#2 – Applications are being bounced more than refused and at a higher rate than one would expect

As I discussed in an earlier post commenting on the trends I was seeing with Express Entry incompleteness/refusals, the problem of bounced applications is a major barrier to applicants.

Express Entry applications can be bounced for a variety of factors. Some of the common ones are:

  • Missing police certificates or certificates not yet received (very prevalent due to change in rule requiring police certificates for countries resided in cumulatively for 6 months or more and well-documented FBI police certificate delays);
  • Insufficient letters of reference (often times challenge in getting references for old jobs or where old employers refuse to provide adequate letters);
  • Failure in properly uploading complete documentation; and
  • A11.2 findings where an applicant has had a birthday, a new child, forgotten/failed  to submit a document or new evidence that has now decreased their points etc.

This is just to name a few.

The 2015 report seems to confirm that bounced applications are a big problem for Express Entry;

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If we go back to our overall chart for final processing, we see that out of the 16,491 applications finalized, 14,058 were approved and 2,433 were refused.  On the surface, this statistic does not look bad and accounts for a ratio of about 5.78 Approvals to 1 Refusal.

However, if we look at this other statistic from earlier in the report, the situation looks much more bleak.

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This statistic tell us that out of the 37,424 applicants (21,562 applications received), 15,246 are in progress and 14, 058 have been approved. Doing simple math, we are left with 22, 178 applicants received of which only 16,491 were finalized as approvals/refusals. From this, we can deduce the bounce/incompleteness  rate to be somewhere in the neighbourhood of ([22,178-16491]/22,178) or 25.64%.

The consequences of a system where 1 out of 4  eAPR applicants are not even making it to a final decision (some perhaps through abandonment) are staggering. It means the system is not as intuitive as it can be and there is much room for improvement. It also means that Applicants may need more legal advice than they are currently seeking out for Express Entry.

 

#3 – The Backlog from Pre-Express Entry Continues to Exist and Eat Up Cap Space

If we return to the Conservative Government’s 2015 immigration levels plan, we can see how much of that space appears to have been made up of Express Entry.

In 2015, the projections were:

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Assuming, just the low for now the projection was for 68,000 economic applicants to be granted permanent residency.

We know the actual number of 2015 Express Entry Approvals were 14, 058.

There are two possible conclusions from this. Either a majority of processing (79%) is still occurring on backlogged Canadian Experience Class/Federal Skilled Worker files from before January 1, 2015 or the Government has grossly missed its economic immigration targets for 2015.

In 2016, it now seems somewhat more understandable that the Liberal Government would reduce its target to 58,400 by 25,600. Perhaps Express Entry is indeed a system where promising less and delivering more may be the best strategy.

 

Conclusion

Many applicants and their representatives around Canada have been expressing their frustration with Express Entry. It appears that those frustrations are understandable. The old, the non-English speaking, even the slightly imperfect applicant is subject to either a low score or a bounced application.

With even lower projections in 2016 and no sense that the scores will be raised to unattainable thresholds, the only logical consequence is more refusals and bounced applications.

Applicants through Express Entry may want to think of pursuing dual intent (concurrent permanent and temporary) options or seek assessment under a provincial nomination program while Express Entry figures itself out. One of the strategies IRCC should employ, in addition to further educating applicants, is a secondary review/reconsideration mechanism.

Counsel for these Applicants should also be reviewing refusals more closely. Several of my colleagues have seen their Judicial Review practice increase quite significantly and many of these refusals/incompleteness findings are being overturned prior to the case ever reaching the Courts.

 

 

The Rising Problem of Express Entry Refusals/Incompleteness

Introduction

I posted as early as in March 2015 (when Express Entry was only three months old) as to why I felt Express Entry would create headaches/misrepresentation concerns for applicants.

Almost a year later, it looks like the leeway/grace period in the Express Entry’s electronic management system has officially ended. Express Entry completeness/minimum requirement provisions are being applied very strictly. An unforgiving system, unlike a paper application where it was very common to try and supplement information after the fact or the usual temporary resident system where a pull and resubmit is quite easy, Express Entry doesn’t appear to be too receptive to those type of requests. An electronic-Application for Permanent Residency (e-APR) is a one-shot deal and should be treated with overabundant caution by applicants and practitioners alike.

There are two major triggers for Express Entry failure that fall into the realm of the arguably controllable:

  1. Individuals are being bounced (technically not refused) for providing incomplete documentation and not meeting the R. 10(1)(c) requirement  of the Immigration and Refugee Protection Regulations  to submit a complete application; and
  2. Individuals are being refused for no longer meeting the minimum requirements based on the self-declared information on their initial Express Entry profile no longer being an adequate reflection of their point score or their qualifications. The authority for this is the Immigration and Refugee Protections Act Sections 11.2 , 10.3(1)(e), and 10.3(1)(h). They are not the most straight-forward sections and require some reading.

Many of the refusal/incompleteness issues  come from inherent “shortcomings” with the Express Entry system.  First, when a profile is created a score is generated. However, unless an Applicant updates the information in their application the score does not automatically update. Individuals who have birthdays, find new jobs, get new degrees conferred, or even have new family members can find their applications reassessed at the time of their application to find they no longer meet minimum requirements that their initial Invitation to Apply was based on.

Second, when Applicants are provided a personalized checklist at the e-APR stage, the checklist does not often provide complete details of what is required. For example, looking at a checklist of required uploads, it can be easy to assume that only the document named is required without questioning whether that document is a) enough or b) the details of the content required in that document.

Third, so much of the e-APR system is now based on proof of documentation such as medical examinations and police certificates, which themselves are dependent on documentation provided by third parties (other Countries/Doctors, etc.). Many times an individual will have challenges securing those documents and/or have past medical examinations or police certificates near expiry. Most of the times errors are innocent or simply based on poor document handling or time-lining of expiry dates.

Best Mitigation Stratetgy – Read,  Review, and Record Everything

Step 1 : Read

Immigration, Refugee and Citizenship Canada (IRCC) has a lot of good, publicly-available, information for applicants. It’s free. You don’t need a lawyer to read them off the screen for you. You want to know this before your consultation with an immigration advisor.

This one of the most important documents for Express Entry, is IRCC’s program delivery instructions for a completeness check: http://www.cic.gc.ca/english/resources/tools/perm/express/intake-complete.asp#document_checklist

A little harder to read, but equally relevant – here are the instructions for IRCC’s review of applications after an e-APR is submitted to ensure they met initial program requirements http://www.cic.gc.ca/english/resources/tools/perm/express/refuse.asp 

Step 2: Review

If your Express Entry has been in the pool soaking in the hot tub for awhile, perhaps it is a good idea to check if the information is still accurate. Particularly if something changes in your own profile – you have obtained additional documents, you have found a new job, etc. you should make sure to update immediately.

You also want to review all the information you include before you submit your e-APR. There are specific things you can add to your personalized checklist to help cover gaps/changes and explain deficiencies. You want to make sure you put forward the strongest foot forward at the e-APR stage and review all information to date – is my travel history complete? did I list all my jobs? am I sure I did not stay in a country for longer than six months combined (side note: see new changes announced by IRCC here). This is also, where you may seek the assistance of a legal representative to identify and help you uncover and address those gaps.

Step 3: Record Everything

For an incompleteness under R. 10, you may be lucky and have the information in your profile stay for 60 days as you update it and create a new eligible profile. For refusals, you will likely have your application wiped clean and will have to start from scratch.  This can be a huge headache for applicants.

At the very least, you want to have the information you used or submitted in previous applications saved. You don’t want to be in a position where you are justifying a changed answer on the basis of “I don’t remember.” Also, in the event in the near future that a more established reconsideration mechanism (*nudge nudge IRCC*) opens up, you want to be able to have evidence that you made best efforts and that the process itself (rather than your own actions) were the result of refusal.

Lack of Remedies

As mentioned above, IRCC has created few remedies for Express Entry incompleteness/refusal issues.

One of the best proactive remedies is the request for an extension of time and proof that best efforts have been made. Again, this is discretionary and depends on category. See IRCC instructions for more specifics.

Right now, financially speaking for clients it is hard to justify paying X amount of money to judicially review (challenge the administrative decision making process) of an Express Entry refusal when it would only take creating a new profile and the receipt of a new ITA. However, I would suggest that a review of the events leading up to the refusal and a review of one’s current eligibility, CRS score, and family/work situation should occur prior to writing off the judicial review process.

Conclusion

Express Entry was promised as a gateway for Canadian economic immigration, but for many its turned into a locked door.  A little diligence and an understanding of the way the system works can go a long way to save you heartache and lost time down the pathway to permanent residency.