IRCC Minister Transition Binder 2023: Cases & Litigation

Background

• In 2022, IRCC made over five million administrative decisions on cases across immigration, passport and citizenship lines of business.
• Within this caseload, there are cases that are particularly complex, and there are decisions that are inevitably challenged by IRCC’s clients through litigation. To support IRCC officers across the networks on complex cases and litigation, there are two designated branches within IRCC Operations:
  • Litigation Management Branch (LMB) provides strategic departmental direction in the context of litigation, with a view to mitigate risks in the best interest of the Department.
  • Case Management Branch (CMB) provides direction, support, and decision-making with regards to complex, high-profile, sensitive and/or contentious immigration, citizenship and passport cases as well as conducts large-scale investigations and employer compliance inspections.
• Department of Justice (DOJ) litigators from across the country advocate for IRCC and represent the Attorney General of Canada before the Courts and Tribunals. DOJ counsel and paralegals in IRCC’s Departmental Legal Services Unit (DLSU) work with litigators, specialists at DOJ (human rights law, administrative law and privacy law), as well as colleagues at other DLSUs (principally Canada Border Services Agency, Public Safety, Global Affairs Canada) and counsel at central agencies to ensure that the positions taken in the Courts are legally sound, nationally consistent, and align with IRCC’s policies and programs, while at the same time protecting whole of government legal interests.

Key Issues

Litigation:

• IRCC is party to thousands of cases in litigation before different tribunals, both domestic and international, including the Federal Court, the Canadian Human Rights Commission and Tribunal, the United Nations Committee Against Torture, provincial and territorial tribunals, etc.
• In 2022, IRCC accounted for 79% of all Federal Court cases, which represents an average of 50 new litigation cases for IRCC every working day (approximately 10,000 cases last year).
• Most IRCC litigation is brought by way of an application to the Federal Court to review the decision at issue (“judicial review”). The Federal Court reviews the legality and reasonableness of the decision and whether it was made in a procedurally fair manner.
• The volume, complexity and profile of litigation files necessitates strategic oversight, in order to mitigate risks to the Department.
• Some high-profile issues currently before the Courts include:
  • The Canada-US Safe Third Country Agreement (section 15 Charter [discrimination]);
  • Canada’s response to the crisis in Afghanistan (and how it differed from the response to the war in Ukraine);
  • Alleged discrimination against transgender, non-binary, and other gender-diverse individuals with respect to how sex and gender are identified on government documents;
  • The first generation limit found in the Citizenship Act (i.e., a Canadian parent is only entitled to pass on their citizenship to their children born abroad if the parent themselves became a citizen by birth inside Canada or by naturalization);
  • International adoptions and Kafala guardianship; and,
  • IRCC delays in processing applications.

Cases:

• There are a multitude of high-profile issues involving cases across the department currently being addressed by CMB. Some include:
  • [Redacted]
• Since the Designation of the Iranian Regime, CMB has collaborated with CBSA to conduct [Redacted] Administrative actions have been taken on all known cases of concern to ensure the Iranian regime and the Islamic Revolutionary Guard Corps are held accountable for their crimes and are not provided safe haven in Canada.
  • Governor-in-Council Citizenship (GIC) Revocations are a caseload of citizenship revocation cases which need to be assessed under a previous provision of the Citizenship Act. They will require a decision from the Minster on whether or not to refer these cases to the GIC for a decision on citizenship revocation.
  • [Redacted]
  • Temporary Resident Permits (TRPs) are issued to foreign nationals who wish to travel or remain in Canada but are otherwise inadmissible. An important line of business for CMB is to prepares instructions to support the Minister’s interventions as well as those directed by senior management.

State of Play

Litigation:

• Litigation management is a shared responsibility. Key players include: LMB, DOJ counsel and paralegals within the IRCC DLSU, and DOJ litigators across Canada.
• LMB strategically manages litigation on behalf of IRCC. LMB is the liaison between the DoJ and IRCC and is responsible for collaborating with internal and external stakeholders to ensure the Minister’s position is consistent with the law, program and policy objectives, and that it is substantiated by evidence before various tribunals and within Court-imposed deadlines.
• LMB also coordinates with law enforcement and other partners to respond to requests for information and assistance and comply with Court Orders to produce information in the possession of the Department.
• LMB’s risk mitigation measures include training, consultations with program and policy areas in the development of new initiatives, and providing timely feedback and guidance throughout and following litigation.

Cases:

• CMB collaborates with internal and external stakeholders on cases impacting all of IRCC’s lines of business. CMB works with processing offices and partner departments on cases with bilateral, diplomatic, humanitarian or national security implications.
• Due to the nature of CMB’s work, the branch is in regular communication with IRCC’s senior management and the Minister’s Office to action and provide updates on cases of interest. The way in which CMB operates is highly reactive and, on average, concludes urgent matters within 24-36 hours. As such, CMB has an on call team on standby during afterhours.
• CMB is the centralized decision maker on multiple complex lines of business.
• CMB also conducts employer compliance inspections under the International Mobility Program and administrative large-scale investigations into fraud across all IRCC lines of business. When warranted, CMB refers cases to enforcement partners for possible criminal investigations and enforcement and provides active support to intelligence partners to identify and mitigate high risk arrivals.