Dealing with Immigration Delays: Understanding Mandamus and Demand Letters

Calver Immigration Consulting Inc.
Jul 15
5 min read

If you're feeling stuck in limbo with your immigration application, wondering when your Canadian application will finally move forward, you're not alone. Many people experience extended wait times, and it’s essential to know what options are available to you. Below I’ll discuss two important tools for addressing unreasonable immigration delays: Mandamus applications and demand letters. Let’s dive in and see how you can take action.

Understanding Immigration Processing Times: The Basics

When you submit an immigration application to Immigration, Refugees and Citizenship Canada (IRCC), you’re naturally eager to know when you’ll receive a decision. IRCC provides estimated processing times on their website, which can give you a general idea of how long it might take. However, these are just estimates. Actual processing times can vary significantly based on several factors:

Application Type: Different application streams (e.g., Express Entry, Spousal Sponsorship, Study Permit) have different processing standards.
Application Volume: Backlogs and surges in applications can cause delays.
Completeness and Accuracy: Incomplete or inaccurate applications will take longer to process.
Individual Circumstances: Complex cases or those requiring additional security checks will have longer processing times.

While some delays are normal and expected, persistent and extended delays can cause significant anxiety and hardship.

What Constitutes an "Unreasonable" Delay?

Defining an “unreasonable” delay isn’t always black and white. There’s no set timeframe that automatically qualifies a delay as unreasonable. However, here are some signs that your application processing might be taking too long:

Exceeding Published Processing Times: If your application is significantly past the estimated processing time on the IRCC website.
Lack of Communication: If IRCC isn’t providing updates or responding to inquiries.
No Apparent Reason: If there’s no clear reason for the delay, such as a request for additional documents.
Personal Hardship: If the delay is causing significant financial, emotional, or other hardship.

If you believe your delay falls into one or more of these categories, it may be time to consider taking further action.

Mandamus Applications: A Powerful Legal Tool

A Mandamus application is a legal procedure filed in the Federal Court of Canada. "Mandamus" is Latin for "we command." In this context, it's an order from the court directing a government official or body (IRCC) to perform a duty they are legally obligated to do in this case, to process your immigration application in a timely manner.

How Does a Mandamus Application Work?

Identifying an Unreasonable Delay: First, you need to establish that your application has experienced an unreasonable delay. Compare your processing time to IRCC's estimated times and consider the factors mentioned earlier.
Sending a Demand Letter (Crucial First Step): Before filing a Mandamus application, you MUST send a formal demand letter to IRCC. This letter politely but firmly requests that IRCC expedite the processing of your application. This demonstrates to the court that you've tried to resolve the issue administratively before resorting to litigation.
Filing the Mandamus Application: If IRCC doesn't respond adequately after the demand letter, you can file a Mandamus application with the Federal Court. This is a formal legal process, and it's highly recommended to seek the assistance of an immigration lawyer for this step.
Federal Court Review: The court will review your application and IRCC’s response. If the court finds that IRCC has failed to fulfill its duty to process your application in a reasonable timeframe, it may issue a Mandamus order.
IRCC Action Following the Order: Once a Mandamus order is issued, IRCC is legally obligated to act on your application promptly.

Why Demand Letters Are a Necessary Prerequisite:

Sending a demand letter is not just a courtesy—it's often a legal necessity. Here’s why it's so important:

Formal Notice: It provides IRCC with formal written notice of the unreasonable delay and your request for action.
Documentation: It creates a record of your efforts to resolve the delay outside of court, which is vital for a Mandamus application.
Encourages Action: A well-written demand letter can sometimes prompt IRCC to prioritize your application, avoiding the need for court action altogether.
Court Requirement: The Federal Court often requires evidence that you sent a demand letter before it will consider a Mandamus application.

What Makes a Good Demand Letter?

A strong demand letter is clear, concise, and professional. It should include:

Your Information: Full name, contact details, application type, file number, and submission date.
Delay Details: Specify the length of the delay, compare it to IRCC's processing times, and note any relevant dates (e.g., medical exam expiry).
Explanation of the Delay: Explain why you believe the delay is unreasonable and how it’s impacting you (e.g., job offer at risk, family separation).
Request for Action: Clearly request that IRCC finalize your application within a specific timeframe (e.g., 30 days).
Legal Reference: Mention your intention to pursue legal action (Mandamus) if IRCC fails to respond appropriately.
Supporting Documents: Include copies of your application submission receipt, any correspondence with IRCC, and any documents that support your claim of hardship.

ATIP, CSIS Complaints, and NSIRA: When Security Concerns Are Involved:

Sometimes, delays are due to security screening or background checks. Here's what you can do:

ATIP Requests: Access to Information and Privacy (ATIP) requests allow you to obtain your GCMS notes, which contain details about your application processing. These notes might reveal the reason for the delay (e.g., security checks).
CSIS Complaints: If you suspect unreasonable delays related to Canadian Security Intelligence Service (CSIS) checks, you can file a complaint with the National Security and Intelligence Review Agency (NSIRA).
NSIRA: NSIRA reviews complaints about Canada's national security agencies. If your delay seems security-related, NSIRA can investigate.

Judicial Review vs. Mandamus:

Mandamus is a specific type of judicial review. Judicial review is the process by which the Federal Court examines the legality and reasonableness of a government decision or action (or inaction). If you believe IRCC made an unfair or unlawful decision, you might seek judicial review of that decision, not just a Mandamus order for delay.

Reconsideration Requests: Another Option:

Before resorting to legal action, consider a reconsideration request. This involves asking IRCC to review your application again, often after providing additional information. While it might not work in all cases of long delays, it's a less costly and less formal option.

Immigration delays can be incredibly frustrating, but you don't have to remain helpless. By understanding your options, such as sending demand letters and filing Mandamus applications, you can take proactive steps. If you are dealing with unreasonable delays, remember that seeking professional advice is crucial. As an RCIC, I'm here to help you understand your options and navigate this process. Contact us today for personalized guidance and support with your immigration journey. book an online consultation with us here.

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Calver Immigration Consulting Inc. is rated Canada's number one boutique immigration consultancy. We serve clients across Canada and internationally. Our Registered Canadian Immigration Consultant has over 10 years of experience in Canadian Immigration law serving those in Canada and abroad.

We can assist with applications for both temporary and permanent residency in Canada. We handle applications for study permits, permanent residency, family class sponsorship, visitor visas, work permits, and Canadian citizenship. We also handle criminal inadmissibility cases by developing remedies for refusal.