Immigration Detainees Granted Access to Habeas Corpus [UPDATED – November 25]

On October 20, 2015, the Court of Appeal for Ontario (the “ONCA”) released its decision in Chaudhary v. Canada (Public Safety and Emergency Preparedness) (“Chaudhary”).  The ONCA has ruled that the immigration detention review system provided for in the Immigration and Refugee Protection Act (“IRPA”) does not provide an effective forum for detainees to challenge their continued detention. Effective immediately, detainees will be able to apply to the Ontario Superior Court of Justice for habeas corpus to challenge their continued detentions.

Habeas Corpus

Habeas Corpus, latin for “you shall have the body,” is a recourse in law whereby a detained individual can apply to a court for a determination on whether their detention or imprisonment is unlawful.  If the court rules that the detaining entity is acting beyond its authority, then it must release the detainee.   Habeas Corpus is commonly regarded as a cornerstone of liberty.  It is enshrined by s. 10(c) of the Canadian Charter of Rights and freedoms, which provides that “everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Under what is known as the “Peiroo exception,” the Supreme Court of Canada in May v. Ferndale Institution stated that in immigration matters habeas corpus is precluded where federal legislation provides a complete, comprehensive and expert statutory scheme which contains a review process that is at least as broad as and no less advantageous than habeas corpus.

The ONCA in Chaudhary determined that the immigration detention review system provided for in the IRPA does not meet these requirements.

Canada’s Immigration Detention System

The IRPA contains a comprehensive scheme for detention review.  To detain someone there must be reasonable grounds to believe that the individual is inadmissible to Canada and is a danger to the public, or is unlikely to appear for a future interview, an admissibility hearing, removal, or a proceeding that could lead to a removal order.  Detention may also be ordered if the authorities are not satisfied as to the identity of the individual.  Finally, a permanent resident or foreign national can be detained when they are entering Canada if an immigration officer considers it necessary to do so for the examination of the individual to be completed, or if the officer has reasonable grounds to suspect that the individual is inadmissible to Canada on grounds of security, violation of human rights,  or criminality.

After a person is detained, the Immigration Division of the Immigration and Refugee Board will automatically review their detention.  The Immigration Division must hold its first detention review within 48 hours after the individual has been detained, or without delay afterwards.  If continued detention is ordered, then the Immigration Division must then conduct a second review of the reasons for continued detention within seven days of the first review.  If it then orders continued detention, it must review the reasons for continued detention at least once during each 30-day period following each previous detention review.

The Immigration Division must order that a detainee be released unless the Immigration Division is satisfied that:

  • the detainee is a danger to the public,
  • the detainee unlikely to appear for further examination, an admissibility hearing, removal from Canada, or a proceeding that could lead to the making of a removal order;
  • the government is taking necessary steps to inquire into a reasonable suspicion that the detainee is inadmissible on grounds of security, violating human or international rights, or criminality; or
  • the government believes that the detainee’s identity has not been, but may be, established, and the detainee has not reasonably cooperated with the government to help it establish his/her identity.

The Immigration and Refugee Protection Regulations (“IRPR”) further provide that if one of the above grounds for continued detention is identified, then before ordering continued detention the Immigration Division must also consider:

  • the reason for detention;
  • the length of time in detention;
  • whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time;
  • any unexplained delays or unexplained lack of diligence caused by the government or the person concerned; and
  • the existence of alternatives to detention.

A detainee can apply for leave to the Federal Court for judicial review of the Immigration Division’s decisions on continued detention.  The Federal Court will only consider whether the Immigration Division’s decision was reasonable based on the information before it, or whether there was a breach of procedural fairness.  The Federal Court will be very deferential to the Division.

The ONCA found the IRPA detention review scheme lacking for several reasons, including that the federal legislation provides that the length of detention is but one factor to be considered,  that continued detention can often be justified simply by relying on the reasons given at prior detention proceedings (as the Federal Court of Appeal affirmed in Thanabalasingham), and that neither the Immigration Division nor the courts are tasked with the question of determining whether the detention violates the Charter or other human rights principles, and rarely do.

As a result, the ONCA ruled that immigration detainees will now have access to habeas corpus.

The Habeas Corpus Alternative

If a detainee wishes to challenge their continued detention in superior or provincial court, the test will be much different from the one contained in IRPA.  As the ONCA stated (modified for ease of reading and clarity):

On their habeas corpus applications, the [detainees] would have to show that reasonable and probable grounds exist for their complaints [to the court that their continued detention has become unconstitutional]. The grounds will be the exceptional length of their detentions and their uncertain continued duration. The question the court will then have to address is whether, because of their length and the uncertainty as to their continued duration, the detentions have become illegal, in violation of the detainees’ ss. 7 and 9 Charter rights [which provide for the right to life, liberty, and security of the person, and the right to not be arbitrarily detained] and international instruments to which Canada is a signatory. A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal. In responding to the application, the Minister must satisfy a court that, despite its length and uncertain duration, the continued detention is still justified.

Habeas corpus is non-discretionary.  There is no requirement that leave be obtained.  As well, unlike with a judicial review where the applicant must show that the Immigration Division made an error, on an application for habeas corprus the legal burden rests with the detaining authorities once the detainee has established a deprivation of liberty and raised a legitimate ground upon which to challenge its legality.

Depending on the province, a hearing on a habeas corpus application in a superior court will likely obtained more rapidly than a federal court judicial review.

Going Forward

Chaudhary should not be viewed as yet another example of the judiciary striking down a “Harper law.”  The federal detention review scheme described above has existed since 2001, when the IRPA was introduced.

It remains to be seen whether the new Liberal government appeals Chaudhary to the Supreme Court of Canada, whether it amends the IRPA to enhance its protections of the rights of detainees such that the Peiroo exception will apply again, or whether it will allow immigration detainees access to two forums to challenge their detention.

For now, detainees and counsel frustrated with the current system should know that an alternative now exists.

[UPDATE – NOVEMBER 25, 2015]

In Warssama v. Canada (Citizenship and Immigration)Justice Harrington issued a strongly worded decision in which he ordered that the Immigration Division consider alternatives to detention if the Canada Border Services Agency (“CBSA“) could not explain why an individual could not be removed to Somalia.  It is likely that he had Chaudhary in mind, considering how often he references it throughout the decision.  Indeed, contrary to what the ONCA wrote in Chaudhary, he implied that the Federal Court could hear Habeas Corpus, without explicitly ruling so.

It seems somewhat peculiar that the Federal Court has exclusive jurisdiction to grant a writ of habeas corpus with respect to members of the Armed Forces serving outside Canada, but otherwise cannot issue a writ of habeas corpus at all, notwithstanding that it is dealing with detention in immigration and penitentiary matters day in and day out.

Perhaps the last word has yet to be written, either by the courts or by Parliament.

Indeed, considering that Justice Harrington stopped short of explicitly stating that the Federal Court could hear habeas corpus applications, the last word will have to be written elsewhere.

Canada Lists Designated Countries of Origin (Updated October 24, 2014)

The Government of Canada has published a list of the first Designated Countries of Origin (“DCO“).

The initial list of DCOs covers 27 countries, 25 of which are in the European Union (edit: see below for a list of additional countries that have been added):

  • Austria
  • Belgium
  • Croatia
  • Cyprus
  • Czech Republic
  • Denmark
  • Estonia
  • Finland
  • France
  • Germany
  • Greece
  • Hungary
  • Ireland
  • Italy
  • Latvia
  • Lithuania
  • Luxembourg
  • Malta
  • Netherlands
  • Poland
  • Portugal
  • Slovak Republic
  • Slovenia
  • Spain
  • Sweden
  • United Kingdom
  • United States of America

In September, 2010, I predicted ten countries that I thought would likely be designated.  Nine of them are on the above list, I assume Hong Kong will be added in the near future.

Continue reading “Canada Lists Designated Countries of Origin (Updated October 24, 2014)”

Citizenship Certificates

Any Canadian citizen may apply for a citizenship certificate.

The application package can be found on the Citizenship and Immigration Canada (“CIC“) website here.

The current standard processing time is 5 months.  If someone lives outside Canada or the United States, and has applied through a Canadian embassy, high commission or consulate, it may take  an additional 2 to 4 months beyond the estimated processing times to process your application.  The CIC website does list ways to expedite processing.

We have below reproduced CIC’s internal master checklist for citizenship certificate applications in the hopes that this will help you structure your application in a way that allows CIC to process it as fast as possible.

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Electronic Travel Authorization

On August 1, 2015, the Government of Canada launched the Electronic Travel Authorization (“eTA”) program.  The program is similar to the United States of America’s Electronic System for Travel Authorization. Implementation of the eTA program will allow Canada to pre-screen eTA-required travellers to ensure that they are admissible to Canada.

As of March 15, 2016, most foreign nationals who are exempt from the requirement to obtain a Temporary Resident Visa (“TRV“) to enter Canada will be required to obtain an eTA before they travel to Canada by air.  A list of countries and territories whose citizens will need an eTA to travel to Canada can be found here.  As such, it will no longer be the case that residents of these countries can simply purchase tickets and board planes to travel to Canada.  Rather, an individual will be unable to board a commercial airline to Canada unless the airline first confirms that the individual possesses an eTA through the Canada Border Services Agency’s new Interactive Advance Passenger Information system.

Americans are exempted from the requirement to obtain an eTA.

The eTA is an online application on the Citizenship and Immigration Canada (“CIC“) website.  Applicants will need to provide their passport details, personal details, contact information, and answer background questions regarding their health, criminal history, and travel history. CIC anticipates that it will automatically process most eTA applications within minutes. When an eTA application cannot be automatically approved, it will be referred to a CIC officer for a manual review.  Officers can request additional documents, and, where required, further the application to a Canadian visa office abroad for further processing, including a possible interview.

The eTA will be valid for five years or until the applicant’s passport expires, whichever occurs sooner. The cost to apply is $7.00.

The process can be summarized in this internal CIC chart below, obtained through an Access to Information request.


Bill C-35, The Cracking Down on Crooked Counsultants Act (Updated – November 17, 2015)

For years, Canadian politicians have been grappling with the issue of how to end untrained and unregulated people from providing immigration advice, also known as “ghost consulting.”  There appears to be a general consensus that tens of thousands of people each year are ripped off by ghost consultants.

The Government of Canada has launched numerous attempts at cracking down on ghost consultants, including, but not limited to, requiring licensing, creating the designated the Immigration Consultants of Canada Regulatory Council, and creating this video:

In June, 2010, the Conservative Government of Canada stepped up Canada’s efforts to regulate immigration consultants by introducing Bill C-35, also known as the Cracking Down on Crooked Consultants Act.

Continue reading “Bill C-35, The Cracking Down on Crooked Counsultants Act (Updated – November 17, 2015)”

Conditional Permanent Residency for Some Spousal Sponsorships

On October 26, 2012, Citizenship and Immigration Canada (“CIC“) implemented conditional permanent residency for certain people who immigrate to Canada under the spousal-sponsorship program.  The implementation of conditional permanent residency took affect on October 25, 2012, the day prior to CIC publicizing it.   The change was not retroactive, and will not affect sponsorship applications which were received by CIC prior to October 25, 2012.

CIC has stated that the goal of introducing conditional permanent residency is to reduce instances of marriages of convenience.

What Conditional Permanent Residency Is, and Who it Applies to

Conditional permanent residency applies to individuals who are the spouse, common-law, or conjugal partner of their sponsor for two years or less when they submit their sponsorship applications and who do not have children in common with their sponsor when they submit the sponsorship applications (“Conditional Permanent Residents“).  Conditional Permanent Residents are required to cohabit in a conjugal relationship with their sponsors for a continuous period of two years after the day on which they become permanent residents (the “Condition“).  If CIC determines that Conditional Permanent Residents have breached the Condition, CIC will declare them inadmissible to Canada, and removal proceedings will be initiated.  Conditional Permanent Residents are able to appeal such decisions to the Immigration Appeal Division, which can consider humanitarian & compassionate considerations.

Specifically, the Condition applies if the couple does not have any children in common and:

  • has been married for two years or less;
  • dated for four years, but has been married for two years or less;
  • has been in a conjugal relationship for two years or less;
  • has cohabited in a common-law relationship for two years or less; or
  • has been in a common-law or conjugal relationship for more than two years and has been married for less than two years, and the person submitted an application as a spouse.

The Condition does apply if the couple

  • has been married for more than two years;
  • has been in a conjugal relationship for more than two years and the person submitted an application as a conjugal partner;
  • has cohabited in a common-law relationship for more than two years and the person submitted an application as a common-law partner; or
  • has children in common.

Having the Condition Removed and Investigations

At the end of the two-year period, a Conditional Permanent Resident does not have to submit an application to CIC to have the Condition removed.  Instead, CIC automatically removes the Condition after two years if there is no ongoing investigation into whether the Conditional Permanent Resident complied with the Condition.

CIC conducts an investigation into a Conditional Permanent Resident either as a result of a random assessment, or as a result of information that CIC receives which leads it to suspect that a Conditional Permanent Resident breached the Condition.  During an investigation into whether a Conditional Permanent Resident complied with the Condition, the immigrant must provide evidence of their compliance with the Condition.  In other words, the sponsored spouse or partner must provide evidence that he or she cohabited in a conjugal relationship with their sponsor for the two-year period following the individual immigrating to Canada.

CIC may also conduct an investigation into a permanent resident after it has already removed the Condition from the permanent resident’s file if it receives information that the Conditional Permanent Resident breached the Condition.

Permanent residents who are the subject of ongoing investigations into whether they were previously Conditional Permanent Resident who breached the Condition may not be granted citizenship.

In other words, while the Condition will be automatically removed after the two-year period (which will save most individuals the need to complete extensive paperwork), CIC can still commence an investigation and depending on the results of the investigation instigate removal proceedings against a person who it believes breached the Condition even after the two-year period has elapsed.


To reiterate, the Condition will not apply to people who have been the spouse, common-law, or conjugal partner of the sponsor for two years or more, or, if they have been in such a relationship for less than two years, have a child together.

The Condition will also cease to apply to Conditional Permanent Residents where there is evidence that the sponsor died during the two-year period, in instances where there is evidence of abuse or neglect from the sponsor, or in instances of a failure by the sponsor to protect the Conditional Permanent Resident from abuse or neglect by another person related to the sponsor.

CIC has provided extensive definitions of what consitutes “abuse” or “neglect” that are beyond the scope of this newsletter.  We have provided at the end of this newsletter a link to the relevant CIC Operational Bulletin which discusses the introduction of conditional permanent residency. . 

More information on conditional permanent residency can be found in Operational Bulletin 480.

We have reproduced the training material for Operational Bulletin 480 below. Please note that the reproduction did not occur with the affiliation of the Government of Canada, and should not be viewed as legal advice.

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Chris Alexander – The Good, The Bad, and the Barbaric

On November 4, 2015, Prime Minister Justin Trudeau appointed John McCallum as the Minister of Immigration, Refugees, and Citizenship.  He replaced Chris Alexander, who had been the Minister of Citizenship and Immigration since July 15, 2013.  Mr. Alexander was one of 60 Conservative Party of Canada Members of Parliament who lost their seats in the October 19, 2015, federal election.

Had the Canadian public on election night not replaced CPC with the Liberal Party of Canada as government, or had Chris Alexander at least even won his own seat, it would have perhaps been difficult to summarize Mr. Alexander’s tenure as the Minister of Citizenship and Immigration.  However, at least one of the causes of the Conservative defeat was the Canadian public’s rejection of a party that increasingly encouraged what can only be described as intolerance and callousness.  Both of these descriptions will likely be remembered as the defining features of Mr. Alexander’s term as Minister.

It is difficult to write this because I do not know how much influence Chris Alexander actually had within his own department.  It was often speculated by immigration policy observers that Mr. Alexander was running CIC under the subtle direction of his predecessor, Jason Kenney, and that Canadian immigration policy was also increasingly being dictated by the Prime Minister’s Office.  I do not know how accurate how these theories are. Nonetheless, regardless as to what extent Chris Alexander’s actions were dictated by either Jason Kenney or the PMO, I can only judge Mr. Alexander’s tenure based on what occurred, and not on whatever deliberations may have transpired internally.

With this caution aside, I will now review below what I consider to be The Good, The Bad, and The Ugly of Chris Alexander’s tenure as the Minister of Citizenship and Immigration.  In light of what will be one of the defining terms of his tenure, I have renamed the “Ugly” the “Barbaric.”

The Good

Chris Alexander’s biggest accomplishment as Canada’s Minister of Citizenship and Immigration was his presiding over the launch of Express Entry, an application intake management system that ranks prospective applicants to Canada’s economic immigration programs and then only accepts into processing the number of applications that CIC can process in a timely manner.  Much like with Barak Obama’s Affordable Care Act, Express Entry initially experienced several technical glitches that CIC has mostly fixed, and will not in the long run negate its successes. (Ironically enough, as I write this the entire Express Entry portal has crashed.) Processing times in the economic immigration programs are now a fraction of what they once were, and CIC can be satisfied knowing that those immigrating to Canada through Express Entry are likely to thrive here.  Arguably the greatest testament to the overall success of Express Entry is that during the 2015 Election the Liberal Party of Canada promised only to slightly adjust how its rankings are calculated, while the New Democratic Party’s Olivia Chow pledged to create an “Express Entry system for children.”   

Mr. Alexander also introduced and oversaw the implementation of Bill C-24, the Strengthening Canadian Citizenship Act, a comprehensive reform of Canadian citizenship law.  Although some of its more controversial provisions are likely to be amended or repealed, Bill C-24 introduced several positive measures including the streamlining of processing, the regulating of citizenship consultants, ending the uncertainty over what constitutes residency for the purpose of calculating time spent in Canada, restoring citizenship to lost Canadians, and at least taking measures to address what has emerged to be a disturbingly high amount of fraudulent citizenship applications that were submitted in the early 2000s.

As well, subsequent regulatory amendments will finally enable CIC to inform the Canada Revenue Agency when citizenship officers discover evidence of tax evasion.  If the Liberals are indeed able to increase government revenue by cracking down on tax cheats, they will likely be able to look towards Minister Alexander’s information sharing reforms as a contributing reason for their achievement.

Finally, while Chris Alexander was Minister CIC changed its website in two ways that greatly enhanced transparency and procedural fairness.  The first was the publication of formal guidelines to immigration officers regarding the processing of reconsideration requests of refusals.  The second was the ongoing transferring of CIC’s operational guidelines from PDFs to text on the CIC website.  Although this is a subtle change, the result is that for the first time CIC’s internal procedures and requirements are easily searchable by the general public.

The Bad

Although Bill C-24 contained many positive provisions, it will primarily be remembered for its introduction of what has become known as “two-tier citizenship.”  Even those who support the notion that the Canadian citizenship of dual nationals should be revocable for the most serious offences (such as terrorism or treason) were generally dismayed by the realization that under Bill C-24 a bureaucrat, rather than a judge, would revoke citizenship, that the bureaucrat would not be able to consider humanitarian & compassionate factors, and that while the revocation decision could be judicially reviewed, there would be no de novo appeal.

As well, as a result of Bill C-24, the Citizenship Act now requires that all permanent residents if granted citizenship intend to continue to reside in Canada.  While cracking down on “Canadians of convenience” may be a laudable goal, requiring that new Canadians have the intention to never work or live abroad seems absurd.

Absurd is also a good word to describe the government’s rationale for why it decided that ESL students would no longer be able to work off campus, as the Conservatives decided that working in an English environment would distract students from learning English and that they should instead focus on their textbooks.  Many of the remaining reforms to Canada’s international student program remain unknown, as the CIC website states that CIC is developing a new compliance regime, and that additional details will be publicized in late 2014.

Yes. Late 2014.  Indeed, saying “we don’t know why CIC is doing what they’re doing, or what they plan on doing.. we only know that they seem to be behind schedule in doing it” appears to have become a common maxim amongst immigration representatives.

This uncertainty of what was going on at CIC was best demonstrated during what is known in immigration circles as the “CEC debacle.”  Starting in November, 2014, many immigration representatives began speculating that the application quota in the Canadian Experience Class, Canada’s most popular economic immigration program, had been reached.  CIC, however, insisted on both its website and in e-mails that the program was still open.  In January, 2015, however, CIC quietly announced that it had made a mistake, that the quota had in fact been reached the previous October, and it returned CEC applications that had been submitted thin the autumn.  Thousands of individuals and Canadian businesses were left scrambling, and many foreign workers had to leave Canada as a result.

Finally, with the exception of Express Entry, CIC’s processing times have soared in most temporary and permanent resident programs.  This was especially noticeable in the Family Class.  Eventually, it became hard to conclude anything other than that family reunification under Minister Alexander simply wasn’t a priority.

The Barbaric

One of the most memorable moments of the 2015 election was Minister Alexander’s announcement that a re-elected Conservative government would establish a tip line for reporting “barbaric cultural practices” and that there would be an integrated RCMP task force to step up enforcement of the Zero Tolerance for Barbaric Cultural Practices Act.  Many Canadians both laughed at the idea, and were at the same time aghast as they subsequently learned about some of the uglier things that had been transpiring in Canada’s citizenship and immigration portfolio.

Even when the actual measures that the Conservatives were proposing or had introduced, like cracking down on forced marriage and violence against children, were laudable, the government’s repeated description of these crimes as “barbaric cultural practices” were widely decried as promoting fear and intolerance.

Chris Alexander’s decision to appeal the Federal Court’s striking down of the CPC’s niqab ban at Canadian citizenship ceremonies was especially antagonizing.  His statement that “we need to stand up for our values.. we need to do that in citizenship ceremonies. We need to do that to protect women and girls from forced marriage and other barbaric practices..” left little doubt that Canada’s Minister of Citizenship and Immigration at best believed that the religious values of Muslim Canadians are separate from, and incompatible with, what it means to be Canadian.

It simply got nasty.  In 2014, the Federal Court ruled that the Conservatives denial of health care to certain refugee claimants was “cruel and unusual punishment” that “perpetuated the myth” that asylum seekers are bogus queue jumpers.  Minister Alexander appealed.  And when the Canadian Bar Association raised concerns about the constitutionality of Bill C-24’s revocation provisions, Minister Alexander described its members as “activist immigration lawyers” who were attempting to “drum up business by promoting the interests of convicted terrorists.”

The approach to cessation applications has also been callous. When Jason Kenney in 2012 amended the laws around cessation so that that the loss of protected person status would also terminate permanent resident status and lead to removal from Canada, he reassured Parliament that cessation would only apply to “people who claim protection from a country, receive Canada’s protection and immediately go back to that country that was supposedly the source of persecution.. and who fraudulently obtain a protected person status.”  However, the government launched cessation proceedings against long-term permanent residents who had made one or two trips back to their countries of origin to visit dying parents.  It initiated them against individuals who had simply applied for a passport despite never travelling on it.  It even launched them against individuals who the government agreed would be persecuted if they were removed from Canada.  And throughout it all, the government argued in court that when cessation proceedings were being initiated no procedural fairness was owed to those facing deportation.

Finally, Minister Alexander on numerous occasions, including after Typhoon Haiyan hit the Philippines, and when the refugee situation in Syria became a global crisis, promised prompt assistance that ultimately only materialized after intense media pressure months or years later.  Although it is unfair to blame Minister Alexander for the death of Alan Kurdi, a young Syrian boy who drowned at sea, young Kurdi’s death did sadly during the election come to symbolize the intolerance and callousness of Canadian immigration and refugee policy under Minister Alexander.

And Now What?

Reading the above, it is clear that had Minister Alexander not engaged in such hyperbole, simply dropped the niqab and refugee health care court proceedings, and addressed the CBSA’s approach to cessation, then his tenure as Canada’s Minister of Citizenship and Immigration would mostly be viewed positively.  I do not understand why things went off the rails.

It is difficult to imagine the incoming John McCallum banning the niqab at citizenship ceremonies, denying health care to refugee claimants, or promoting racial intolerance.  Indeed, Prime Minister Trudeau’s renaming of Citizenship and Immigration to Immigration, Refugees, and Citizenship suggests that the Liberal Party of Canada is going to approach immigration matters with a much greater humanitarian focus.

The Liberal election platform essentially promised only to tinker with the “Good” described above, and to amend or repeal most of the “Bad” and the “Ugly.”  It is thus easy for me to wish them the best of luck.