IRCC email guidelines are a good first step
New email guidelines for immigration officials are a positive step, but must be backed up in practice to stamp out communication issues with applicants, says Toronto immigration lawyer Andrew Carvajal.
A report in the Toronto Star says the new guidelines issued by Immigration, Refugees and Citizenship Canada (IRCC) arrived following a number of disputes over missed emails between immigration applicants and decision makers at the ministry, including one that resulted in a $3,000 damages award to a rejected prospective immigrant from India.
“The most important thing is how these guidelines are put into action. My hope is that we won’t have to refer to them during a request for reconsideration or litigation, but rather that communication problems are prevented by implementing these steps as part of the day-to-day practices of immigration officers,” says Carvajal, a partner with Desloges Law Group.
The guidelines stress that email communication is IRCC's preferred method to communicate with its clients, noting that it is “efficient, cost effective, and available 24- hours-a-day, seven-days-a-week.”
Summarizing Federal Court jurisprudence on faulty communications, the guidelines note that the IRCC must be able to prove that email correspondence “was sent to the most up-to-date email address” supplied by the applicant. Once that has occurred, “the applicant bears the risk involved in a failure to receive the email correspondence,” the guidelines state.
According to the new rules, IRCC staff must ensure that applicants have consented to communicate by email, that the address entered is identical to the one supplied, and to set reasonable time limits for responses and document submission. Emails must also be sent from the office's generic mailbox, then saved and uploaded to the IRCC's global case management system for record-keeping purposes.
IRCC staff cannot rely on the “read notification” function used internally to verify an email was received because it doesn't work once the email leaves the IRCC system and reaches an outside server, according to the guidelines. Instead, they must produce a printout of the sent email and confirm that the email did not bounce back.
In the case of an “undeliverable” message being received back, the guidelines instruct IRCC officers to first check whether the email address supplied has been updated in its system, and then to use an alternate method of communication, such as regular mail.
Although many of the principles in the guidelines “appear common sense” to Carvajal, he says he is glad to see them spelled out explicitly since officers' conduct has not always met that standard in the past.
For example, he says previous court decisions have criticized IRCC officers for ignoring notifications of communications glitches, such as undeliverable responses, while it is “not uncommon that communications would be sent to an email that was typed wrong into the system or to an email that we had advised the government was no longer current.”
“In the end, the government policy should recognize how mainstream email communication is today and not discourage people from using electronic communications and filing electronic applications. It should also recognize that applicants or their counsel should be diligent about making sure that the government knows about any changes in email addresses,” Carvajal tells AdvocateDaily.com.
For reconsideration requests following a refused application that involve an alleged missing email, the guidelines instruct staff to “consider all relevant factors and the circumstances of the case to determine whether to exercise their discretion” to reconsider the application.
“As obvious as this may sound, this is the result of much litigation in the past involving undelivered email messages. Courts have recognized that it is breach of procedural fairness to deny an applicant the opportunity to respond to an officer’s concerns regarding their file as a result of a communication problem,” Carvajal says.