For many applicants under Quebec’s investor and entrepreneur immigration programs, the wait for permanent residence has stretched on for years.
Applicants who were selected by Quebec and submitted their permanent residence applications to the federal government may have seen their expected processing times increase repeatedly, sometimes with little indication of when a final decision will actually be made.
For those who have been waiting for years, a recent Federal Court decision is worth paying attention to.
Although the case involved a different immigration program, the Court considered a question that is particularly relevant to applicants facing prolonged processing delays: can changes in government priorities or ministerial instructions, on their own, justify making an applicant wait significantly longer for a decision?
The Court found that they cannot necessarily do so.
A Recent Federal Court Decision on Unreasonable Delay
The case involved an applicant under the Home Child Care Provider program who had been waiting more than six years for a decision on her permanent residence application.
Over the course of that wait, the processing timeline communicated to her changed significantly. What had initially been an estimated wait of approximately two years eventually grew to more than three additional years, with tens of thousands of applications reportedly ahead of hers.
When the applicant sought relief from the Federal Court, IRCC explained that the delay resulted, in part, from new ministerial instructions that had changed the way applications under the program were being processed.
The Court recognized that the Minister has the authority to establish processing priorities and issue new instructions. But that authority did not automatically make the resulting delay reasonable.
Justice Michael Battista found that the government still had to provide a “transparent and intelligible justification” for the length of time the applicant was being required to wait.
When Changing Priorities Is Not Enough to Explain a Delay
This is an important distinction for applicants whose files have been affected by changes in immigration policy or processing priorities.
Immigration programs evolve. Governments can change priorities, establish intake limits and adopt new processing instructions. But according to the Court, pointing to those changes does not necessarily answer the separate question of whether the resulting delay for an applicant is reasonable.
The longer an application remains pending, the more important that distinction can become.
The Court also considered IRCC’s own processing estimates when assessing the delay. In other words, the timelines communicated by the government can form part of the evidence when determining whether the actual processing period has become unreasonable.
The overall history of the application matters as well. The assessment is not limited to the most recent period without activity; the cumulative time an applicant has spent waiting can be relevant.
Why This Decision Matters for Quebec Investor and Entrepreneur Applicants
The decision is particularly interesting in the context of Quebec’s investor and entrepreneur programs.
Over the years, these programs have been affected by changes to intake, program requirements and government priorities. At the same time, applicants who were selected by Quebec under earlier versions of these programs may still be waiting for the federal government to finalize their permanent residence applications.
For some families, that wait has lasted many years.
During that time, their personal and professional circumstances may have changed considerably, while their immigration plans remain tied to an application filed years earlier. Processing estimates may have increased, and updates from IRCC may provide little certainty as to when the application will actually be finalized.
This Federal Court decision does not mean that every long-pending investor or entrepreneur application has been subject to an unreasonable delay. Each case must be assessed on its own facts, and the nature of the program and the reasons for the delay remain important.
What the decision does reinforce, however, is that broader policy changes or new ministerial instructions do not automatically justify an indefinite or significantly extended wait.
For applicants who have already been waiting for years, that may be an important reason to take a closer look at their file rather than simply continuing to wait.
Can a Mandamus Application Help Move a File Forward?
When an immigration application has remained pending for an unreasonable period, one possible legal remedy is an application for mandamus before the Federal Court.
A mandamus application does not ask the Court to approve the permanent residence application. It asks the Court to intervene where the delay has become unreasonable and require the immigration authorities to move the application forward and make a decision.
The decision on the underlying permanent residence application remains with IRCC. Mandamus is therefore a tool to address unreasonable delay, not to guarantee a positive immigration decision.
Whether mandamus is appropriate depends on the circumstances of the particular file. The length of the delay is important, but it is not the only consideration.
When Is It Worth Having Your File Reviewed?
For Quebec investor and entrepreneur applicants who have been waiting several years for permanent residence, this recent decision may be a good reason to review where the application currently stands.
Factors such as the total time the application has been pending, the processing timelines previously communicated by IRCC, the history of activity on the file, the explanations provided for the delay and the steps already taken to obtain an update can all be relevant when assessing whether further action may be appropriate.
A long processing time does not automatically justify a mandamus application. But applicants should also not assume that they have no option other than to continue waiting simply because processing priorities or program rules have changed.
If your Quebec investor or entrepreneur permanent residence application has been pending for several years, our team can review the history of your file and assess whether the circumstances may support a mandamus application before the Federal Court. Contact us today for support.
This article provides general information regarding a recent legal development and does not constitute legal advice. Each immigration matter must be assessed based on its particular circumstances.
