Why the remedy of judicial review is no longer for everyone with an unreasonable refusal and what strategies we are starting to employ.
Recently the remedy of judicial review has not been as effective as it has been in the past. To qualify this, it depends on the visa office. Some visa offices will re-open a settled case quite expeditiously and in some cases we have had passport requests sent directly after re-opening. However, at other visa offices we have either had a re-refusal on essentially the same grounds OR cases that sit for months (and in some cases nearly a year) with no movement.
As a Firm, we’re starting to experiment with other remedies – namely, reconsideration, even in cases that we would traditionally have pursued litigation for. Reconsideration requests are often not done effectively, but we are learning at certain visa office (see Abu Dhabi screenshot below), that there are more robust set processes to deal with reconsideration.
Still, it is not a science and can often be an art. There will be cases where it may very well be in a client’s best interest to actually submit a new application to bolster and strengthen gaps rather than to pursue litigation which will lead only to a new opportunity to update – one that will mirror a new application.
The other major strategy we are engaging in is in pursuing litigation (particularly for clients who have already been through a consent already) not to immediately consent but rather to file an Applicant’s Record and wait for a leave decision. While this can be high-wire (particularly with leave grant rates being so low), getting more engagement from the Courts and withholding an immediate consent can yield a more meaningful re-opening process in some circumstances.
Unfortunately, the merry-go-around and cycle of despair continues for so many. Many will continue to be delayed. We suspect more mandamus claims will arise from these delays, and more systemic challenges will take place to the way these processes are being undertaken by IRCC.
