Express Entry Refusal

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Dear IRCC: Requesting Uploaded Non-Refundable Plane Tickets for Refused Extension Applications Is Not The Way To Go

I apologize folks. I’m in the middle of a transition (starting my own Firm in February – more details about this later). I’ve also engaged an entire revamp of this blog, which will be releasing as well. I’m supposed to be on hiatus. However, something shared by one of my colleagues has had me spring into action. IRCC: this move is wrong, not procedurally fair, and has disasterous consequences for access to justice.

What am I talking about? Check out the screen shot below.

Dear IRCC:

While it is clear the Government has been pushing to make the restoration process more difficult (trying to limit it to only statuses previously held), it behooves procedural fairness that rather than informing applicants of their statutory option to pursue restoration within 90 days they are telling applicants to leave and provide proof that they are leaving.

There is also no transparency on how to challenge a decision like this. What if an individually legitimately was refused due to missing documentation or a technical issue and has a strong argument for restoration? Do they apply for restoration? What happens if they ignore this request to upload proof. Does CBSA show up before they are able to confirm their restoration has been approved? [The fact we are removing individuals during a pandemic is another bone – but I’ll pick it some other time].

I would argue that this has the most immediate and harmful impacts on those who are unrepresented. As counsel, at least I can seek clarification and know how to navigate restoration to immediately submit an application and perhaps inform IRCC. A self-represented applicant, with no public facing knowledge of the process having provided by IRCC, will not know what to do. I fear that for the international students who I’ve seen this sent to, this can lead to harmful decisions. I’ve been in too many cases where international students were afraid to tell their parents, going so far as trying to leave to a third country to avoid letting their major educational funder parents know.

Importantly, this action breaches procedural fairness. Indeed, I think the Government needs to be enjoined from prematurely requesting something and shielding the fact an alternative remedy is not on available but statutorily provided. This type of action utilizes policy to try and shield the protections provided by law and is inconsistent with the rule of law and due process.

I call on the Government to stop issuing these letters to applicants who receive temporary resident extension refusals and in fact all refusal letters. Go back to informing these individuals that they have the ability to apply for restoration within 90 days. Suspend removals, especially now that there are programs being rolled out to help restore those who have lost status and given them an extended time to do so. This type of letter contracts the generosity through policy that has been provided (see: here).

In the interim, we need transparency:

  1. Who is this being sent to?
  2. Is it just for citizens of certain countries?
  3. Why is it not being limited to cases where individuals are truly out of status without access to restoration?
  4. Where are the public instructions on how to respond to something like this?

Sincerely.

Will

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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.

 

 

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Will Tao is an Award-Winning Canadian Immigration and Refugee Lawyer, Writer, and Policy Advisor based in Vancouver. Vancouver Immigration Blog is a public legal resource and social commentary.

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