Huge increase in immigration access to information requests: The problem and solutions

Law360 Canada (May 14, 2024, 1:15 PM EDT) --

Lorne Waldman

Recent news reports have revealed that access-to-information requests for immigration matters now account for 80 per cent of all of the requests made for government files. The number of access applications has mushroomed and so too has the backlog. The situation has reached a crisis and is only getting worse. In order to understand what can be done, we must first ask why there are so many requests directed at immigration officials.

The huge logjam in access-to-information requests is a reflection of the huge backlog throughout the immigration system. The government has increased the number of persons who will be granted permanent residence to 500,000. This together with the dramatic increase in students and temporary worker applications has created a massive backlog of applications. Processing times have increased and this has led to growing frustration on the part of applicants. The number of applications has gone up far more quickly than the government’s ability to process them. In addition, as the government creates more and more programs that require more training, immigration officers are often seconded from processing pending applications to the new programs further delaying decisions.

Applicants frustrated with lengthy delays request an update on their files from Immigration, Refugees and Citizenship Canada (IRCC). When they do not receive a response from a system that is increasingly overwhelmed, they often turn to the access-to-information process. Many applicants now believe that the only way to get any updates on their files is through an access request. In many cases, when they get the response, they discover their file has languished for months and even years without any action by officials. Confronted with this situation, they often seek relief from the Federal Court.

It’s hardly surprising that given the huge backlog in immigration cases, more and more applicants are applying for mandamus to try and compel immigration officers to render decisions. Until recently, applications for mandamus were few and far between. But today more and more frustrated individuals are applying to the court in the face of lengthy periods of inaction on their files. The dramatic increase in the number of new mandamus applications filed in the Federal Court has put even more stress on a court that is struggling to keep on top of its immigration caseload.

So, what can be done to solve this problem? First, if immigration officials answered requests for updates in a timely fashion, applicants would not be forced to make access-to-information requests in order to get information about their files. Devoting resources to answering routine requests for information would significantly reduce the number of access applications. Of course, most of these requests could be eliminated if the immigration database — the Global Case Management System (GCMS) — could allow applicants to get information about their own files. An update to the GCMS program, which would allow individuals to get such access, would eliminate thousands of access requests each year.

Another improvement that could reduce requests would be a simple change in policy relating to providing reasons for decisions. Decisions are usually sent through form letters that advise the client that their application has been rejected. These letters do not provide any real explanation as to why the application was refused. The detailed reasons are often contained in the GCMS notes or in notes to file. As a result, applicants often make an access-to-information request in order to seek the detailed reasons behind the refusal. If the immigration officials adopted the practice of attaching the detailed reasons to the form letter refusal, this would significantly reduce the number of access requests that IRCC receives.

The explosion in access-to-information requests in immigration matters is a symptom of a deeper problem — the huge increase in applications that has led to backlogs throughout the system. Applicants who cannot get answers about the progress of their application resort to access-to-information requests. Although it would not solve the problem, modifying the GCMS system to allow the applicant to have access to their GCMS notes would dramatically reduce the number of access requests. But ultimately, IRCC needs to deal with its backlog and bring it under control.

Lorne Waldman has been practising exclusively in the area of immigration and refugee law since 1979, the year he opened his own law practice, Waldman & Associates. He was co-counsel to Maher Arar at the Commission of Inquiry into his deportation into Syria. He has also been appointed by the Minister of Justice as a Special Advocate. Waldman is the author and editor of Immigration Law and Practice, a two-volume, loose-leaf service published by LexisNexis in 1992. He has appeared very frequently at all levels of the courts in Canada, including the Supreme Court of Canada, the Federal Court and the Federal Court of Appeal where he has argued many of the leading cases in immigration and refugee law. He was made a Member of the Order of Canada for his contribution to immigration and refugee law.

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