Whenever your immigration application touches on permanent residency in any way it is eligible for the appeals process. Other immigration benefits are not eligible for appeal but they are eligible for judicial review.
Appealing the decision or requesting a judicial review is your last chance to fulfill your goals for migrating to Canada. If you want to be successful, you’ll need the help of expert immigration appeal attorneys.
How Do Immigration Appeals Work?
They start when your attorney files an Application to the Federal Court informing the federal government that you intend to appeal an immigration decision. Your attorney also files a Memorandum of Fact and Law outlining the reasons for your appeal.
While you may attempt to make an immigration application on your own you may not attempt an appeal on your own. Only an attorney may launch an appeal on your behalf. Appeals can only be made within certain deadlines so you’ll want to contact an attorney as soon as possible if you haven’t been working with one already.
What Kind of Evidence Do You Need to Make an Appeal?
You can present almost any kind of evidence with probative value that is also credible, trustworthy, and relevant.
For example, perhaps your spouse has been denied family-class permanent residency because immigration officials doubted you had a bona fide relationship. In that case you could provide the courts with:
- Logs of digital conversations between you and your spouse.
- Copies of phone records showing you and your spouse were in regular contact.
- Travel tickets and receipts showing you’ve been to your spouse’s country often to visit, and that your spouse has been to yours often.
- Affidavits from family members and friends.
- Social media posts and records indicating you and your spouse are truly married.
- Receipts that help prove you were in certain locations at certain times.
- Photographs of you and your spouse spending time together.
- Records that show you and your spouse have a shared bank account or credit accounts.
Your attorney can provide you with a full list of documents that might help you tend to prove that you are in a real relationship.
Who Has the Right to Appeal an Immigration Decision?
You may appeal an immigration decision if:
- You are facing a removal order and have not been sentenced to prison for 6 months or more.
- You have had your family sponsorship visa refused.
- You are being accused of failing to meet your residency requirements.
You may not appeal a removal order if:
- You are found guilty of any crime that is punishable in Canada by a maximum of at least ten years.
- You’re a member of an organized crime group.
- You’re a member of a terrorist organization.
- You’ve committed human rights violations in the past.
- You’ve misrepresented yourself at any point during the application process.
Keep in mind if you are accused of misrepresentation then you can only appeal the decision if you are a sponsored spouse, common-law partner, or child. These individuals will have the chance to provide evidence that no misrepresentation occurred.
How Much Time Does an Appeal Take?
The Immigration Appeals Division (IAD) typically takes six to 24 months to process an appeal. This gives you and your attorney time to gather evidence, nail down a strategy, and strengthen your case.
In most cases you will be allowed to remain in Canada while your appeal is pending.
If your appeal is allowed, IRCC will continue processing your application just as if it hadn’t been denied. You will most likely become a PR and you will be able to begin growing your life in Canada.
Your appeal may also be stayed. This means it’s being put on a temporary hold, allowing you to remain in Canada on a conditional basis.
Conditions can include:
- Making regular reports to IAD.
- Making reasonable efforts to seek and maintain full-time employment.
- Avoiding the company of criminals.
- Avoiding criminal activities.
- Refraining from the use of alcohol.
- Refraining from possessing or carrying weapons.
- Keeping the peace.
- Maintaining good behavior.
- Taking steps to repay creditors and providing the IAD with proof that you’ve taken those steps.
- Avoiding drug use and abuse.
- Follow or continue a psychotherapy program if the IAD determines such a program to be necessary.
- Follow or continue an anger management program if the IAD determines such a program to be necessary.
- Discretionary conditions based on your unique situation.
You will want to document your efforts to comply very carefully. If your compliance is called into question the burden of proof will be upon you.
What Happens If Your Appeal is Dismissed?
You still have one more chance to save your immigration application. You can request a judicial review of IAD’s decision. This will put your case directly before the Federal Court of Canada.
It is important to move fast if your appeal fails. IAD will issue a removal order and you’ll be well on your way towards being asked to leave the country.