Since January 1, 2015, almost all prospective economic immigrants to Canada must apply through Express Entry. Express Entry is an application intake management system in which Immigration, Refugees and Citizenship Canada (“IRCC”) controls immigration application intake by requiring applicants be issued an invitations to apply for permanent residency (“ITAs” before they can actually submit their applications. The purpose of Express Entry is to minimize processing times. Indeed, when Express Entry was launched IRCC guaranteed that it would be able to process permanent residence applications within six months.
On March 31, 2016, IRCC released its Express Entry Year-End Report 2015 (the “Express Entry Report”). The Express Entry Report shows that IRCC in 2015 met its six-month processing goal. However, the Express Entry Report also revealed that IRCC has been bouncing (or rejecting, as IRCC likes to describe it) many Express Entry applications due to incompleteness.
Prior to the introduction of Express Entry, while a bounced permanent residence application was frustrating for applicants, they could for the most part easily simply re-submit their applications. However, with Express Entry there is no guarantee that an individual whose permanent residence application is rejected for incompleteness will be issued another Invitation to Apply. As such, until IRCC adopts a more flexible approach to handling technical deficiencies in applications, it is imperative that applicants check and double-check that their permanent residence applications meet all IRCC requirements.
The Express Entry Report and Application Bouncing
The Express Entry Report shows that IRCC was able to process most Express Entry applications in under six months. Specifically, for Federal Skilled Worker Program applicants the processing standard was 4.7 months, for Canadian Experience Class applicants it was 3.5 months, for Federal Skilled Trades Class applicants it was 4.9 months, and for Provincial / Territorial Nominees it was 3.8 months. There is no doubt that these are phenomenally fast processing standards.
The Express Entry Report also stated that IRCC in 2015 made decisions on 22,178 permanent residence applications submitted through Express Entry. IRCC approved 14,058 applications, and refused 2,433. Although the Express Entry Report does not specify how many applications were bounced for incompleteness, a quick mathematical calculation shows that it is 5,687. In other words, IRCC rejected for incompleteness a whopping 25.6% of permanent residence application submitted through Express Entry.
This high figure would not be surprising to anyone who reads the frustrating stories from bounced applicants on online Canadian immigration web forums. The internet is filled with stories of bounced applicants lamenting that IRCC bounced their applications for seemingly minor reasons. Many are further exasperated that their Labour Market Impact Assessments or provincial nomination certificates are now also expired, which could jeopardize their ability to be issued another ITA, and to immigrate to Canada.
Five Reasons IRCC Bounces Express Entry Applications
Until IRCC adopts a more flexible approach in how it handles incomplete applications, it is imperative that applicants ensure that they meet ALL the requirements on their personalized Express Entry document checklists. There are many reasons why applications may be incomplete, and from what I can tell here are five of the more common ones unique to Express Entry.
First, until recently IRCC required that permanent residence applicants provide police certificates from all countries that they have lived in consecutively for more than six months since turning eighteen. IRCC has now changed this requirement so that applicants have to provide police certificates for everywhere that they have lived for six months or more. If someone visited a country for two months, left for a few years, and then returned for four months on another visit, they now have to provide a police certificate for that country. Because IRCC in its personalized Express Entry document checklists does not specify which countries applicants need to get police certificates from (the checklists only say “multiple police certificates”) many applicants are unaware of this change, and what is required.
The second common reason that IRCC bounces applications also involves police certificates. It is impossible to obtain police certificates from certain countries during the sixty-day window that Express Entry applicants have to submit their applications. When this occurs, IRCC requires that applicants provide proof that they requested a police certificate from the country, and that they provide explanations of best efforts which show that they requested the police certificates as soon as possible after receiving their ITAs. If an applicant does only one of these things, and not both, then IRCC will bounce their application for incompleteness.
Third, it is imperative that Express Entry applicants constantly monitor their MyCIC accounts to ensure that they do not miss any deadlines. IRCC often requires that applicants provide new forms and documents within seven days of a request, and these short deadlines are frequently missed.
Fourth, for whatever reasons the Express Entry portal does not let applicants view what they upload. Applicants should accordingly ensure that they are uploading the correct PDFs. The best practice that I have seen, and use, is to have a separate folder for each document type, and to ensure that when a document is being uploaded it is the only document in the folder. For example, applicants should create a folder titled “PASSPORT” and ensure that there is only one PDF in that folder when they go to upload.
Finally, while there are some exceptions to providing every single documents required in the Express Entry checklist, unless an applicant is 100% sure that they qualify for an exception they should provide all the requested documents. It is surprisingly how many people don’t provide documents that are requested simply because someone in an anonymous forum said that they didn’t upload it and their application was nonetheless approved.
Time for a New Approach
Given the immense criticism that IRCC receives whenever its processing times exceed what people subjectively determine is reasonable, it is not surprising that the department is focused on fast processing times. However, it is also becoming clear that this prioritizing of processing standards may be detracting from procedural fairness. There have been hints of this before. Indeed, as shown in the 2012 partial reproduction of an internal e-mail between two IRCC Directors below, at one point there was even discussion about bulk refusing Canadian Experience Class applications in order to reduce the overall processing times.
To be clear, there is nothing to suggest that IRCC ever actually bulk refused these applications. However, the fact that it was even discussed as a possibility reveals a mentality of speed trumping procedural fairness.
As of writing the Federal Court of Canada has not yet issued a reported decision regarding the procedural fairness of IRCC’s rigidness in how it processes Express Entry applications. However, in the Family Class context, the Federal Court in Balasundaram v. Canada has offered some hope. There, Justice Annis held that “obvious slips and omissions” cannot automatically be fatal to immigration applications. He went on to write that “the failure to include an attachment to an email raises the expectation that the addressee will advise the sender of his or her error.” As Express Entry is essentially an online system with attachments, it is foreseeable that the Court would extend this principle to Express Entry.
IRCC is fond of boasting that they have met their six month Express Entry processing standard. Considering that 40% of Express Entry applications were either bounced for incompleteness or refused this is not as impressive as it sounds. Indeed, I don’t think anyone would complain increasing the processing standard from six months to seven meant that IRCC would provide applicants with the opportunity to provide documents that were accidently not uploaded.