Immigration Appeals and Litigation

Legal avenues to contest immigration decisions, including appeals and judicial reviews.

Defend Your Rights: Immigration Appeals and Legal Representation

There are various options available for individuals to challenge or appeal immigration decisions that affect their status or application. Whether it’s a visa refusal, inadmissibility finding, or deportation order, individuals have the right to request reconsideration or pursue legal remedies through appeals and litigation.

Common Grounds for Appeals and Litigation:

  • Visa Refusals: Individuals can challenge visa refusals, particularly for family sponsorships or permanent residency applications, through the IAD or Federal Court.
  • Removal Orders: Permanent residents or foreign nationals who are subject to deportation can appeal removal orders, arguing that they should be allowed to remain in Canada on humanitarian or compassionate grounds.
  • Residency Obligation: Permanent residents who are found not to have met their residency requirements can appeal the decision, providing evidence of their reasons for not meeting the obligation.
  • Humanitarian and Compassionate (H&C) Grounds: Appeals or applications based on Humanitarian and Compassionate (H&C) grounds may be filed to avoid the enforcement of a decision that would result in undue hardship or harm.

Legal Options

Review of immigration decisions for fairness and legality.

Federal Court Appeals

A Federal Court Appeal allows individuals to challenge decisions made by Immigration, Refugees and Citizenship Canada (IRCC), the Immigration and Refugee Board (IRB), or the Canada Border Services Agency (CBSA). This judicial review process focuses on whether the decision was made fairly and in accordance with the law, rather than re-assessing the facts of the case.

When to Use a Federal Court Appeal:

  • Visa Refusals: If your visa application is refused and you believe the decision was unfair or unlawful.
  • Refugee Claims: Denied refugee claimants can appeal for judicial review.
  • Removal Orders: Challenging deportation or removal orders that may not have followed proper procedures.

Key Points:

  • No Automatic Right to Appeal: Federal Court appeals require leave (permission) from the court to proceed.
  • Strict Deadlines: Appeals must be filed within 15 days for decisions made inside Canada, or 60 days for decisions made outside Canada.
  • Outcome: The court may uphold the decision, overturn it, or send it back for reconsideration by the original decision-maker.
Appeals for family sponsorships, removals, and residency.

Immigration Appeal Division (IAD)

The Immigration Appeal Division (IAD) is part of the Immigration and Refugee Board (IRB) and hears appeals on specific immigration matters, offering individuals a chance to challenge decisions that negatively affect their status in Canada.

Common Appeals to the IAD:

  • Family Sponsorship Refusals: If a family sponsorship application is denied, sponsors can appeal the decision to the IAD.
  • Removal Orders: Permanent residents or foreign nationals facing deportation can appeal to the IAD to stay in Canada.
  • Residency Obligation Appeals: Permanent residents who are found to have failed their residency requirements may appeal to retain their status.

Key Points:

  • Time Limits: Appeals must be filed within 30 days of receiving the decision.
  • Hearing Process: The IAD may conduct a hearing where both the appellant and the government can present their arguments.
  • Outcome: The IAD can overturn the decision, dismiss the appeal, or return the case for reconsideration.
Access immigration case information or decision records.

ATIP Request

An Access to Information and Privacy (ATIP) Request allows individuals to obtain records related to their immigration case or interactions with IRCC, CBSA, or other government departments. This is a crucial tool for individuals looking to understand the reasoning behind a decision or gather evidence for an appeal.

Common Reasons for an ATIP Request:

  • Immigration Case Information: Obtain detailed notes from immigration officers regarding visa refusals or application outcomes.
  • Decision Records: Access documents and communication between government agencies involved in your immigration case.
  • Privacy Requests: Ensure that personal information held by the government is accurate and up-to-date.

How to File an ATIP Request:

  • Submit Online: ATIP requests can be filed through the Government of Canada’s ATIP portal.
  • Processing Time: Typically, requests are processed within 30 days, but this may vary depending on the complexity of the request.
  • Fees: A minimal fee is required for most requests, though certain requests related to personal information may be free.
Request to review a decision based on new evidence or errors.

Reconsideration Requests

A Reconsideration Request is an option for individuals to ask an immigration officer to review a previous decision on their case. This is typically used when new evidence has emerged, or if there was an error in the original decision-making process.

When to Submit a Reconsideration Request:

  • Visa Refusals: If your visa application was refused and you have new evidence or believe an error was made, you can request reconsideration.
  • Work or Study Permit Refusals: Reconsideration requests are often used to review decisions on temporary status applications.
  • Humanitarian and Compassionate Grounds: In certain cases, new evidence related to your circumstances can warrant a reconsideration.

Key Points:

  • No Formal Appeal Process: Reconsideration requests are informal and do not guarantee that the original decision will be changed.
  • New Evidence or Errors: The success of a reconsideration request often depends on whether new information is provided or if a procedural error occurred.
  • Response Time: There is no set timeline for processing reconsideration requests, and the officer’s decision is final unless pursued through a formal appeal process.

Benefits of Appeals and Litigation:

Appeals and Litigation Process:

  1. Filing the Appeal or Judicial Review: Appeals and judicial reviews must be filed within specific deadlines. Missing these deadlines may result in the loss of the right to appeal or challenge the decision.
  2. Presenting Evidence: In appeals, additional evidence may be submitted to strengthen the case. Judicial reviews, however, focus on procedural fairness rather than new evidence.
  3. Legal Representation: Given the complexity of immigration law, individuals may choose legal counsel to guide them through the appeal or litigation process, ensuring that the strongest arguments and evidence are presented.
  4. Outcome: The outcome of an appeal or judicial review may result in the original decision being upheld, overturned, or referred back for reconsideration. In some cases, a successful appeal may lead to the approval of the visa or status being sought.

Benefits of Appeals and Litigation:

  • Second Chance: Appeals offer individuals the opportunity to challenge decisions and have their case reconsidered.
  • Legal Oversight: Ensures that decisions comply with Canadian law and were made fairly.
  • Temporary Relief: Filing an appeal can sometimes delay deportation or other negative outcomes while the case is under review.

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