This brochure gives general information about the immigration appeal process. It is meant to be a guide and not a substitute for independent legal advice. Should you need further assistance, please contact a lawyer.
This brochure looks at:
- Who has the right to appeal?
- What kinds of decisions can be appealed under the immigration law?
- Who decides the appeal?
- What is the appeal process?
AN OVERVIEW OF APPEAL RIGHTS AND PROCESS
Who Has the Right to Appeal?
Generally speaking, only permanent residents of Canada have the right to appeal an immigration decision. In some limited situations, “foreign nationals” may have a right to appeal from the issuance of a removal order.
A permanent resident is a person who is allowed to live permanently in Canada and who may later apply to become a Canadian citizen (provided that he or she meets the citizenship criteria).
A foreign national is a person from another country who is not a Canadian citizen or a permanent resident.
This brochure only covers appeals by permanent residents.
What Kinds of Decisions may be Appealed?
Permanent residents have the right to appeal under the following circumstances:
- As sponsors who wish to bring family members to Canada, they can appeal if their sponsorship applications have been refused by Citizenship and Immigration Canada (CIC)
- Permanent residents who have removal orders made against them have the right to appeal the orders
- Permanent residents found not to have met their residency obligation (i.e., they have not resided in Canada for at least 730 days in a five year period) can appeal that finding
Who Makes Decisions on Appeal?
Appeals made by permanent residents on immigration matters go to the Immigration Division (ID) and the Immigration Appeals Division (IAD) of the Immigration Refugee Board (IRB).
The IAD and ID are both administrative tribunals and must follow a process similar to what happens in a court, although they are less formal.
The person who hears and decides the case is called a member. IAD and ID members are appointed by the Government of Canada. They are supposed to be impartial.
A General Review of What to Expect at an Appeal Hearing
Whether you are appearing before a member of the IAD or the ID, there are certain things you should know about these hearings.
- In the case of permanent residents, hearings before IAD and ID are public hearings which means that people not related to your case may attend to observe. This does not happen very often though.
- These hearings are usually held in person. Sometimes the hearings are held – in whole or in part – by videoconference or teleconference. No matter what form the hearing takes, it must always be fair.
- The hearings will be conducted in either English or French. If you are not fluent in either one of these official languages, you have the right to request an interpreter and one will be provided for you by the Board.
- Each division has its own rules of procedure. The rules cover such matters as time limits, evidence, documents and responsibilities of counsel as well as other people appearing before the Board.
- All decisions are based on the evidence provided and the law that applies to your case.
- Members must provide reasons for their decisions. Usually after hearing a case, the member will not give his/her decision right away. The decisions are usually put in writing and mailed to the parties at a later date. It usually takes several months before the decision is mailed out.
- At the hearing, you have the right to be represented by legal counsel at your own expense. Under the current law, if your counsel is paid, then only lawyers, immigration consultants and paralegals who are licensed to practice immigration law can represent you in an immigration matter, including your appeal.
- You have the right to be heard and to present evidence and arguments.
- You have the right to an interpreter.
- You may call witnesses to support your case.
APPEALS BEFORE THE IMMIGRATION DIVISION
The Immigration Division (ID) holds admissibility hearings for people who are believed to have contravened the Immigration and Refugee Protection Act (IRPA). This usually happens when the Canada Border Service Agency (CBSA) decides that a person has done something which makes them “inadmissible” to Canada, i.e., they should not be allowed to either enter Canada, or if they are already in Canada, they should be ordered to leave.
The ID also holds detention reviews for people who are detained by CBSA for immigration reasons. If you are detained, you have a right to have the detention reviewed. You should seek legal advice and representation immediately.
When may a Permanent Resident be Considered inadmissible?
CBSA may ask the ID to hold a hearing to determine if a permanent resident is inadmissible if that person:
- has failed in some way to comply with the immigration law
- is a security threat
- has violated human or international rights
- has been involved in crime or organized crime
- has engaged in misrepresentation
Misrepresentation means you misrepresented certain facts, or failed to disclose certain information at the time you applied for permanent resident status. This information must have been relevant to your application. For instance, when you applied to immigrate to Canada, you did not disclose the fact that you had a dependent child. You subsequently tried to sponsor the child to Canada. When this happens, CIC checks to see if you have declared this child in your initial application. If you have not, CIC may initiate an investigation against you for misrepresentation. Misrepresentation may also be alleged against you if, for instance, you were sponsored by your spouse to Canada but just before coming to Canada, you and your spouse became separated and you did not inform immigration about the change in your marital status.
What Happens at an Admissibility Hearing?
When the CBSA requests an admissibility hearing, it will prepare a report which explains why you should not be allowed to enter or remain in Canada, including the specific section of the immigration law that CBSA claims you have breached. The report will be sent to you and to the IRB. The ID will then hold a hearing.
Before the hearing, you should receive further information from CBSA about the case they have against you. At the hearing, a person representing CBSA, called the Minister’s Counsel, will tell the ID member why you should not be allowed to enter or remain in Canada. You have the right to respond to what the Minister’s Counsel says. You may also submit your own evidence or call your own witnesses to support your case.
After considering all the evidence, the ID member will make a decision. If the member decides to issue an order to remove you, you have the right to appeal that decision to the IAD. If the member decides not to issue a removal order against you, the CBSA will also have the right to appeal that decision to the IAD.
APPEALS TO THE IMMIGRATION APPEAL DIVISION
Types of Appeals before the IAD
The Immigration Appeal Division (IAD) hears four types of immigration appeals:
- Appeals by sponsors in family class cases
- Appeals of removal orders made against permanent residents
- Appeals by permanent residents found not to have met residency requirements
- Appeals by CBSA of decisions on admissibility made by Immigration Division
1.Sponsorship Appeals
If you are a Canadian citizen or a permanent resident and your application to sponsor the immigration of a close family member to Canada has been refused, you may appeal to the IAD. Some of the most common reasons for rejecting sponsorship applications are:
- If you are sponsoring your spouse and immigration believes that your spouse entered into the marriage with you for the purposes of immigrating to Canada or that your marriage is not genuine
- If you are sponsoring your parents, you do not meet the minimum income requirement to be a sponsor
- If you are sponsoring your spouse or your parents, immigration believes that your family members will not be able to support themselves and will be relying on social assistance once they come to Canada
- Your family member has a certain medical condition which immigration believes will cause an excessive demand on Canadian society
In the following circumstances, you can not appeal if your family member has been found to be inadmissible due to:
- A serious criminal offence that was punished in Canada by a term of imprisonment of 6 months or more
- conviction of a crime outside of Canada and the foreign conviction or criminal act carries a maximum sentence of 10 years or more under Canadian law
- Involvement in organized crime
- Security grounds
- Violations of human or international rights, or
- Misrepresentation (unless the person is your spouse, common-law partner or child)
In situations where you may file the appeal, you have 30 days after you receive a copy of the decision to appeal to the IAD.
An appeal is filed by completing an IAD appeal form. Canada Immigration will send you a copy of this form with the refusal letter. This form can also be downloaded and printed out from the IAD website: The completed form can be mailed to IAD or delivered there in person.
Sometimes it may be unclear as to whether the IAD could hear your appeal. One example is when you sponsor a family member, such as a child, but you had never declared you had this child in your own application for permanent resident to Canada. The child is therefore “excluded” from the family class definition. In that case, there are different legal opinions about whether the sponsor has the right to appeal the decision to the IAD. It is best to seek legal advice if you are in this situation.
2.Removal Order Appeals
Permanent residents who have been issued a removal order by the ID may also appeal to the IAD. However, you can not appeal if you have been found to be inadmissible to Canada because of:
- A serious criminal offence that was punished in Canada by a term of imprisonment of 6 months or more
- conviction of a crime outside of Canada and the foreign conviction or criminal act carries a maximum sentence of 10 years or more under Canadian law
- Involvement in organized crime
- Security grounds, or
- Violations of human or international rights
An appeal from a removal order must be filed within 30 days of its issuance. There will be a hearing before an IAD member to decide if the order is valid. If the appeal is allowed, the removal order is set aside and you will be allowed to remain in Canada. If the appeal is dismissed, the removal order will be upheld and you will have to leave Canada.
Instead of deciding to allow or dismiss the appeal, the IAD may decide to “stay” the removal order for a period of time. This means that the order is temporarily frozen. The IAD will consider your appeal at the end of this stay period (e.g. two or three years later). If the order is stayed, the IAD will impose certain conditions on you, such as reporting regularly to a CBSA office or advising the CBSA every time you move, during that time period. The IAD may, at any time, change the conditions or cancel the stay. If the IAD cancels the stay, it will then decide to either allow or dismiss the appeal.
3.Residence Obligation Appeals
Generally speaking, IRPA requires permanent residents to be physically in Canada for at least 730 days out of every five years. If you are outside of Canada and a visa office finds that you have not met this residency obligation, you may lose your permanent resident status. You may appeal that decision to the IAD. You must appeal no later than 60 days after receiving the decision letter.
In some cases, you may be able to get a travel document to let you enter Canada for the hearing. If you are not in Canada for the hearing, the hearing may be held by telephone.
If the appeal is allowed, you will be able to keep your permanent resident status. If the appeal is dismissed, you will lose your permanent resident status. If you are in Canada, the IAD will order your removal from Canada.
4.Minister’s Appeals
The Minister representing the Government of Canada may also appeal a decision on admissibility made by the ID to the IAD.
General Information about Appeals before
the IAD
Generally speaking, if you are appealing to the IAD, you need to note the following:
1.Grounds for Appeal
The IAD may allow an appeal and set aside the original decision if there was:
- an error in law or fact
- a breach of the principle of natural justice
In some cases, the IAD may give special relief and allow an appeal based on humanitarian and compassionate considerations including the best interests of a child. In sponsorship appeals, the IAD will only consider granting this special relief if the permanent resident who is appealing meets the definition of “sponsor” and the family member being sponsored meets “family member” definition under IRPA.
2.What Happens after an Appeal is Filed
To start your appeal process, you have to file a Notice of Appeal. This form usually comes with the decision that you want to appeal from.
After you file the Notice of Appeal, you will receive a letter from the IAD acknowledging that it has received your notice.
In the case of spousal sponsorship appeal, sometime after you have filed the appeal, the Minister’s Counsel will send you a record containing documents regarding your appeal.
You may also at a later date receive a letter from the IAD to appear at an assignment court on a specific time and date. You should be there on the date and time stated. If you are ready to go ahead with the appeal, the IAD will give you a date of appeal at the assignment court.
Some sponsorship appeals go through an informal alternative dispute resolution (ADR) process. If your case is chosen for ADR and you agree to ADR, this means you will sit down with the Minister’s Counsel to discuss your case. You will be questioned by the Minister’s Counsel. If your case is settled through ADR, you do not have to go through a full hearing and your application to sponsor your family member will continue to be processed. If not, you still have the right to continue with your hearing before a different member of the IAD.
When an appeal hearing date is assigned, you should be ready for the hearing on that date. If you are not ready or if your lawyer is not available on that day, you or your lawyer may ask for the date to be changed to a later date by sending a letter to the IAD explaining your situation. The IAD may or may not agree to change the date of the hearing depending on whether they think you have good reasons for making this request.
Sometime before the hearing date, you will receive a package prepared by the Minister’s Counsel. This package should contain the material the Minister has relating to your case. If you receive this package, make sure you bring it to your lawyer.
3.How to Prepare for your Appeal
The first thing you should do is to consult with a lawyer if you do not have one already.
It is your responsibility to show that the decision you are appealing is not legal. In some cases, you may also appeal on the basis of humanitarian and compassionate grounds. Speak to a lawyer about your specific case to see what grounds of appeal apply in your case.
It may be some time after you have filed the appeal before you have your IAD hearing. In the meantime, you should start collecting evidence that is relevant to your case. Depending on what your appeal is about, the evidence you need may include documents, letters, photos, information about the relationship between you and your family members, information about your children, and information about yourself (such as income and employment information).
If you would like to use these documents at your hearing, you must make two copies of all of your documents. You must send one copy to the IAD and one copy to the Minister’s Counsel. Their addresses are on the material that the IAD sends to you after you have filed your appeal. The documents must be received at least 20 days before the hearing. If you do not send in your documents in advance, the IAD member may not let you use the documents at your appeal hearing.
If your documents are not in English or French, they must be translated and the translation must be sent along with one copy of the documents to the IAD and one copy to the Minister’s Counsel. The person who translated the documents must attach a statement certifying that the translation is accurate.
Even if you have provided copies of your documents before the hearing, you must bring the original documents to the hearing if you have them.