Old FSW Applications must be processed
On the eve passage of Bill C-38, the Federal Court issued a decision, declaring unlawful CIC´s policy of warehousing indefinitely older federal skilled worker applications in favour of the current batch. The litigation, commenced 28 October 2011, pre-dates the Minister´s March 30th announced that he would close all FSW files lodged before 27 February 2008 and not assessed as of 29 March 2012 and, thus, does not address s. 87.4 (hidden in Bill C-38). The decision applies directly only to the 900 applicants who participated in the litigation.
The litigation included applicants who had applied either before 27 February 2008 or between that date and 25 June 2010. While the former group -- about 750 -- are subject to s. 87.4, CIC agreed in writing in January that it would be "guided by" the decision in the lead cases. If the Minister honours this promise, the Minister´s closing of roughly 80,000 applications (affecting about 280,000) will have their files assessed and finalized within a specified time-frame.
In the lead case, the Court ordered CIC to finalize the file by October 14th. However, because his file had been assessed in 2010, only medicals and up-dated police clearances are required. For the other litigants, the time-frame (which must still be negotiated) will likely be longer.
For those not involved in the litigation, new litigation is currently being prepared to challenge the closing of the files and will be formally launched after Parliament passes Bill C-38.
Ottawa loses legal battle over immigration backlog thestar.com
The federal court ruled that Ottawa is obliged to process all immigration applications it accepted into the system.
According to Tim Leahey LLB
From: http://www.canada-city.ca/canada-immigration/posting.php?messageid=33044 Ottawa loses legal battle over immigration backlog
Ottawa has suffered a major setback in eliminating its immigration backlog after the federal court ruled the government is obliged to process all applications it accepted into the system.
About 900 applicants under the federal skilled workers' program sued Immigration Minister Jason Kenney for violating the pledge to assess and finalize decisions in a timely fashion.
They asked the court to order the immigration department to process their applications within a reasonable time frame.
In a decision released Thursday, Justice Donald Rennie rejected the minister's argument that the delay is justified because he has the authority to make policies.
“The minister can set instructions that permit him to return some applications without processing them at all, and thus obviously there is no further duty in respect of those applications,” the judge wrote in a 24-page decision.
“However, for those that are determined eligible for processing, the duty to do so in a reasonably timely manner remains.”
In February 2008, the law was changed to give Kenney authority to issue ministerial instructions regarding which applications would be eligible for processing and to remove the obligation to process each application received.
As a result, the litigants argued, their applications were “warehoused” in a lengthy backlog from five to nine years.
Despite the new measure, the court said Ottawa still failed to finalize a file within the six and 12 months Kenney promised — the first ministerial applications have been outstanding between 24 and 52 months.
Immigration has until Oct. 14 to finalize the application of the case's lead litigant, an IT project manager in China.
Although the court falls short on making an order for all 900 applicants, Thursday's decision sets the stage for the prompt processing of the other litigants.
“So long as the applicants are not to blame for the delay, a fair application of Justice Rennie's ruling would require Ottawa to finalize their applications by October 14,” said their lawyer, Tim Leahy.
The decision is final because the court refused the minister's request for appeal, added Leahy. The next step is for opposing counsels to determine how to proceed with the remaining cases.