Navigating Complex Cases and Litigation: Insights from IRCC's 2023 Transition Binder

As Immigration, Refugees and Citizenship Canada (IRCC) navigates the intricate landscape of immigration, citizenship, and passport services, the management of complex cases and litigation stands as a pivotal aspect of its operations.

Under the stewardship of Marc Miller, the Minister of Immigration, Refugees and Citizenship, IRCC has tackled numerous high-profile and challenging cases.

This article delves into the strategies and structures outlined in the Immigration Minister's Transition Binder for 2023, focusing on how the department handles its caseload and legal battles.

The Scope of IRCC’s Decision-Making:

In 2022, IRCC was involved in over five million administrative decisions, ranging across its varied lines of business. This vast decision-making process naturally leads to complexities and disputes, some of which end up in litigation. To manage these, IRCC has established specific branches:

• Litigation Management Branch (LMB): This branch provides strategic guidance on litigation matters, aiming to mitigate legal risks while aligning with departmental policies. LMB acts as a crucial liaison between IRCC and the Department of Justice (DOJ), ensuring that legal positions are coherent, evidence-based, and consistent with broader government objectives.
• Case Management Branch (CMB): CMB deals with complex, high-profile cases, offering direction, support, and decision-making. It also undertakes significant investigations and compliance checks, particularly under the International Mobility Program, ensuring that IRCC's operations are robust against fraud and other malpractices.

Litigation Landscape

IRCC's involvement in litigation is extensive, with the department being a party to thousands of cases across various tribunals, including the Federal Court, where it accounted for 79% of all cases in 2022. This translates to roughly 50 new cases daily, with judicial reviews being the most common form of legal challenge. These reviews assess the legality, reasonableness, and procedural fairness of IRCC's decisions.

Key Litigation Issues

Several high-profile legal issues are currently under scrutiny:

• The Canada-US Safe Third Country Agreement: Challenges based on discrimination under Section 15 of the Charter.
• Response to International Crises: Contrasting responses to crises in Afghanistan and Ukraine.
• Gender Identity on Documents: Alleged discrimination against gender-diverse individuals.
• Citizenship Act Challenges: The "first generation limit" regarding citizenship by descent.
• International Adoptions and Guardianship: Issues with Kafala guardianship.
• Application Processing Delays: Legal actions due to prolonged wait times for application processing.

Handling Complex Cases

CMB has been instrumental in managing cases with significant implications:

• Collaboration with CBSA: Post the Designation of the Iranian Regime, joint efforts have ensured accountability and security.
• Citizenship Revocations: Handling cases under Governor-in-Council provisions, requiring ministerial decisions.
• Temporary Resident Permits (TRPs): Issuing permits for inadmissible individuals under special circumstances, with CMB preparing instructions for ministerial interventions.

Operational Dynamics

• Litigation Management: LMB ensures coordinated legal strategies with DOJ, focusing on risk mitigation, compliance with court orders, and maintaining legal consistency across IRCC's operations.
• Case Management: CMB operates with high responsiveness, often concluding urgent matters within 24-36 hours, maintaining an on-call team for after-hours decisions. This branch not only decides on complex cases but also oversees compliance and fraud investigations, referring significant issues to enforcement agencies when necessary.

With dedicated branches like LMB and CMB, IRCC is well-equipped to navigate the complexities of immigration law, ensuring that decisions are made with legal integrity, humanitarian consideration, and strategic foresight. This framework not only supports the department's current operations but also prepares it for future challenges in the ever-evolving landscape of global migration and citizenship.