Appeal a Federal Court Immigration Decision: The Certified Question

Can you appeal a Federal Court immigration decision, and what is a certified question?

A certified question is the "serious question of general importance" that a Federal Court judge formally certifies so that an appeal can go to the Federal Court of Appeal. The judge does this in the judgment that decides the judicial review. Under IRPA s. 74(d), the higher court is open only if the judge, when giving judgment, certifies such a question and writes it out. Section 87.01 is a separate provision that lets the Minister appeal certain disclosure rulings without certification.

Citizenship judicial reviews follow the same structure under s. 22.2(d) of the Citizenship Act.

In plain terms, the question must be stated by the judge. Without one, the statute does not open an appeal on this route.

Why many Federal Court immigration cases end there

Two features of the statute help explain this, without any need for statistics:

1. The leave stage is final. No appeal lies from the Federal Court's decision on the leave application, or from an interlocutory judgment (IRPA s. 72(2)(e)). If leave is refused, there is no appeal from that decision.
2. The merits stage has a gate. Even after a full hearing, an appeal needs a certified question (IRPA s. 74(d)).

Put together, a person who loses at the leave stage has no appeal, and a person who loses after a hearing has an appeal only if a judge certifies a question. Rule 18 deals with the request before judgment is given.

How is a certified question requested?

The Federal Court's special rules for citizenship, immigration and refugee proceedings (the "CIRP Rules") control the request:

1. Before judgment. Before the judgment is delivered, the parties are to be offered a chance to request certification (Rule 18(1)).
2. A specific question. The party asking has to put forward the exact question (Rule 18(2)).
3. The judge's decision. The judge decides whether a serious question of general importance arises and, if so, states it in the judgment.

The statute and Rules reviewed for this article do not define what makes a question "serious" or of "general importance". A lawyer can advise on how the courts have applied those words.

What is the deadline for a Federal Court of Appeal notice of appeal?

Two sources speak to the time limit, and they are worded differently:

The Federal Courts Act also gives 10 days for an appeal from an interlocutory judgment (s. 27(2)(a)).

The Rules for immigration and citizenship appeals cover appeals under IRPA s. 74(d) (Rules 2 and 3). Rule 4(1) says that listed Parts of the Federal Courts Rules, including Part 6 on appeals, apply except to the extent they are inconsistent with the Act, IRPA or those Rules. How the two provisions fit together, including whether July and August are excluded in a given case, is a point a lawyer should confirm. The deadline depends on the facts and should be confirmed with a lawyer immediately.

Rule 20(2) of the immigration and citizenship Rules provides for service of the notice of appeal on all parties, with proof of service filed within 15 days after the notice is filed.

What happens once an appeal is started?

Part 6 of the Federal Courts Rules also applies to these appeals, subject to the CIRP Rules (CIRP Rule 4(1)). The usual stages under it are:

1. Notice of appeal. It sets out the relief sought, the grounds to be argued and details of the order appealed (FCR Rule 337).
2. Respondents. Unless the Court orders otherwise, the appellant includes as respondents the parties who were adverse in interest at first instance (FCR Rule 338(1)).
3. Respondent's response. A respondent who plans to take part files a notice of appearance, generally within 10 days of being served (FCR Rule 341(1)).
4. Appeal book. The parties are to agree in writing on the appeal book contents within 30 days of filing the notice (FCR Rule 343(1)).
5. Hearing and decision by the Federal Court of Appeal.

Some of these time periods may be adjusted by the Court or by the specific Rules, so they should be confirmed against the actual file.

What does the Federal Court of Appeal look at?

The statute allows the appeal because a question was certified and stated. The sources used for this article do not describe how the Federal Court of Appeal approaches the underlying decision or what it will address. A lawyer should confirm how the court frames its task in a given case.

Under Part 6 of the Federal Courts Rules, the Court may grant leave to present evidence on a question of fact "in special circumstances" (FCR Rule 351).

Costs are generally not awarded in these appeals unless the Court finds special reasons (CIRP Rule 22). Rule 23 lists a $50 fee for a notice of appeal; confirm the current amount, as it may change.

What if the judge does not certify a question?

Under the provisions described here, IRPA s. 74(d) does not open an appeal to the Federal Court of Appeal. Other steps, for example a different proceeding or a new application on a changed footing, may exist in some situations, but whether any applies depends on the underlying decision and its history. A lawyer can advise.

One more feature is worth knowing. A decision refusing leave cannot be appealed at all (IRPA s. 72(2)(e)), so a certified question is relevant only after leave was granted and the judicial review was heard. The earlier stages are explained in how Federal Court judicial review of IRCC decisions works and what the leave application involves.

When it is worth talking to a lawyer

• A Federal Court judgment has just been issued and the appeal period is running.
• A hearing is coming up and a certified question may be requested.
• The judge's reasons raise a legal point that a party may want to put forward as a question.
• The decision refused leave and you are unsure what remains available.
• A removal date or a loss of status depends on the outcome. The related guide on emergency stays of a removal order covers that.

What to gather

• The Federal Court judgment and reasons, with the date it was pronounced
• The notice of application and the leave order
• The decision under review (the refusal or order)
• The parties' written arguments and the certified tribunal record
• Any proposed question that was filed or discussed at the hearing
• Any later correspondence from the Court Registry or the Department of Justice