Practicing Immigration Law in the Time of COVID-19

I have practiced immigration law for over 17 years; prior to that I was a Refugee Protection Officer -sort of tribunal counsel to the RPD -the largest Division within the IRB, itself the largest administrative decision making tribunal in Canada. COVID-19 and the response to the pandemic was an unprecedented disruption to the practice of law, and immigration law in particular. As one example, this is the longest I’ve gone without conducting a hearing. Many assumptions will have to be set aside as suspending Court and tribunal operations is simply not an option. Gathering all parties together, in one room, is simply not necessary nor frankly desirable.

Remote hearings have now been conducted or scheduled by the IRB and the Federal Court and, like the first days of spring after a long winter, there are signs that immigration adjudication and processing is re-starting. “Zoom” has now entered the legal community’s lexicon and it was a pleasure appearing before Justice Zinn a couple of days ago on a judicial review matter that had to be post-poned. Two more remote Federal Court hearings are in my calendar in a week or so. Nevertheless, backlogs have necessary increased.

Beyond litigation, every business line in immigration law was affected (and most continue to be). Even 9/11 did not result in the closure of the US-Canada.

COVID-19 demonstrated that borders, do indeed, matter.

Visitor visa applications, biometrics, medical examinations. All essentially eliminated for weeks and months. Citizenship ceremonies and landing for PRs were put off. Thousands of International Students are still in limbo. Language schools and other DLI’s are on tenterhooks. Hundreds if not thousands of immigration and visa officers are not working. Families have been separated -whether by borders or travel logistics or other conditions in other countries. Sponsorship appeals were postponed -adding to the grief and anxiety of those affected by the pandemic. Deportations are on hold. There was, and continues to be massive uncertainty as immigration policy is being made on the fly. It seems that IRCC/CIC is literally fixing the plane while trying to fly it.

As an aside, it is a maxim in politics to not let a crisis go to waste. Canada’s federal government took the ‘opportunity’ to return border crossers that by-passed a POE (and the operation of the STC). Shameless. Jason Kenney -once the Federal Immigration Minister and now the Premier of Alberta, recently announced significant changes (read: restrictions) to the LMIA/WP and AINP regimes in this Province. Again, adding to the uncertainty of those that are living and working here -many of whom are front-line and essential workers.

For all of Canada’s vaunted humanitarian tradition -and our (annoying) habit of looking down our noses at our southern neighbour, we continue to exploit and put migrant agricultural workers and new immigrants in harms way. PoC and new immigrants are disproportionately affected by COVID-19 -because they (we) are also disproportionately on the front line as health care workers and essential workers (transit, meat and agricultural processing). Further, tensions have risen, and Asian Canadians have suffered acts of racism and discrimination.

COVID-19 and the response have revealed the need for significant change and reform to Canada’s immigration laws, policies and operations -one standout being the challenges that “paper” applications have presented to processing. Also, it would help if people stopped re-inventing the wheel. The RPD recently reached out to our office for us to take part in a pilot project for remote hearings – eschewing Zoom over apparent privacy concerns (which the Federal Court utilizes) in favour of a different service provider (Microsoft Teams). I suspect by the time they will get this pilot project up, in-person hearings (or hearings with at least some individuals off-site) will likely resume. Talk about closing the door after the horses have bolted.

Crises generally accelerate reforms that are already under way. Hopefully, there will be a silver lining to this pandemic that has wreaked so much devastation in the form of increased access to justice and common sense and logical enhancements to immigration processing and adjudication.