December 3, 2021
Informational Equity: Despite Attempting To Prevent Fraud Here Is Why IRCC’s And CBSA’s Portrayal Of Counsel Is Undermining The Integrity Of Canada’s Immigration System
Public statements made about authorized representatives on websites for Immigration, Refugees, Citizenship Canada (IRCC) and the Canada Border Services Agency (CBSA) focus their communication on unlawful and/or unscrupulous practitioners. Although the aim is important and appropriate, namely the protection of the public, the result is a distorted picture of counsel with little mention of the critical role counsel play in representing applicants. These websites also fail to consider the impact on our professional obligations as lawyers regarding fraudulent representation and document management.
In short, the presentation as it currently reads amounts to a public marginalization of counsel in a process in which they play a critical role. This is in stark contrast to other stakeholder websites, including the Federal Court and the Supreme Court of Canada websites respectively, which encourage the use of lawyers in appropriate cases. These two websites properly highlight the qualifications and expertise lawyers possess, directing visitors to obtain information and guidance. Unlike IRCC and the CBSA, these websites place the onus on the applicants to make an independent decision about hiring counsel with a balanced presentation of how they can and cannot assist an applicant.
Strikingly, there are no IRCC or CBSA postings which focus on the benefits of hiring a lawyer. This is not the approach taken across all government websites, however. In comparison, the Service Canada website although there is no mention of the benefits of immigration counsel the website provides a detailed description of the key role lawyers play in real estate and corporate transactions.
The result of these unbalanced public statements is a message that lawyers do not play a pivotal role in specifically citizenship, immigration and protected person representation and are not to be trusted. The unbalanced narrative in part fuels a perception that representation in this area of law is perilous and one that arguably could be interpreted that applicant may be equally or better served with the use of other not necessarily regulated professionals.
A. Website Postings
i. IRCC
On the main pages for IRCC and CBSA there is no reference to, or available information on, authorized representation for migrants.[1] On their webpage dedicated to providing information on immigration and citizenship representatives,[2] IRCC states the following in bolded letters with a warning sentence:
You don’t need to hire a representative!
It’s your choice. Using one will not draw special attention to your application and doesn’t mean we’ll approve it.
You can get all the forms and instructions you need to apply for a visa, a permit or citizenship for free on this website. If you follow the instructions, you should be able to fill out the forms and submit them yourself.
Beware of fraudulent representatives. Learn more about how to protect yourself from fraud.[3]
A follow up page providing information on how to choose an immigration or citizenship representative focuses almost exclusively on how to avoid being the victim of fraud, as follows:
To find a paid or unpaid representative:
- ask people you trust to recommend someone
- Be sure to get advice from several people before you choose ask questions
- Be careful of someone who won’t answer your questions
If you’re hiring a paid representative:
find out if they’re authorized
- This means they have a license to practice and give advice
- If you choose a paid representative who’s not authorized, we may return your application or refuse it
- If you give a representative money or compensate them in any other way in exchange for their services, they’re considered paid and must be authorized
- ask about the representative’s training and experience
- Ask for references and find out how long they’ve been in business
- discuss the services they’ll provide as well as their fee
- make sure to get a written contract and read it carefully before you sign it
- Make sure it lists all the services they’ll give you and clearly states the fee you discussed
If you’re using a representative who works in Canada, you can also contact the Better Business Bureau. It can tell you if it has received complaints about a citizenship or immigration consultant, lawyer or other representative.[4]
The remainder of the page provides tips on how to “protect yourself from fraud”, and includes the following advice: “Once you have chosen a representative: Do not leave original documents or photos with the representative”.[5] We are required by law and our professional obligations to confirm the genuineness of certain documents and by extension require them in our possession for periods of time. As a result, this messaging seriously undermines our ability to meet our professional obligations and perform our required duties as counsel. Generally, this same messaging is continued throughout several additional webpages providing information on immigration and citizenship counsel.[6]
ii. CBSA
For their part, the CBSA clearly states on their webpages that they administer and enforce more than ninety laws. Nowhere does the organization advise that consulting a lawyer may be beneficial. Fulsome messaging is essential, in particular from the CBSA, because this organization is specifically responsible for oversight of removals, appeals, reviews, detentions, deportations etc. – all of which require the assistance of counsel.[7]
B. Concluding Comments
The direction provided to applicants does not reference law societies, jurisprudence, and/or the directions from other advocacy organizations with whom IRCC and the CBSA consult on a regular basis. I have been discussing this issue for many years and my concern has grown that the messaging from IRCC and the CBSA is ultimately harmful to migrants given the complicated nature of immigration applications and the serious consequences of the (at worst) misinformation and/or (at best) omitted information. This inevitably impacts the delivery, management and integrity of our Canadian immigration system.
Lawyers provide a significant service to migrants in navigating the complexity of immigration law. By omitting reference to the benefits of using a lawyer, and at the same time advising that it can be risky to work with a lawyer, IRCC is effectively conveying that there is no benefit in hiring counsel. The messaging from the CBSA is even more troubling as removal proceedings, appeals, and deportation involve deprivations of liberty and/or other serious consequences. For migrants with previous contact with either Canadian or foreign border and/or criminal authorities, the need for counsel is critical.
These individuals likely already face a bar from the country and will require counsel to assist with not only the completion of forms but in the preparation of legal arguments to support their applications. From our perspective, the messaging conveys that counsel is not needed and if you choose to access support, you put yourself at risk. These issues may be particularly acute for the underrepresented, differently abled and marginalized applicants. I have been speaking at various conferences throughout Canada and in my written presentations on the use of artificial intelligence in Canadian immigration and enforcement, that accessing and navigating the technologies disproportionately effects certain racialized individuals and differently abled persons. Refugee claimants in-Canada and lower skilled labour streams are two specific examples of individuals that benefit in particular from access to counsel especially facing emerging technologies.
The unbalanced portrayal of counsel underscores sensitivities of IRCC seemingly transitioning to a plug and play self-help system. This fuel’s a perception of a system dehumanizing the process where a choice to be represented is not mandatory. Combined with technological advances, the learned behaviour over time is that all solutions are a mouse click away, perhaps through the aid of a chatbot or your friendly cyber-neighbor digital ghost representative. Yet when an error occurs there is little lenity, and the consequences are dire.
Counsel should be publicly recognized as valued stakeholders in the process of facilitating the transition of future Canadians. Representatives transcend all layers of society aiding in access to justice, which is all the more important in a techno-centric world. As stated, I have been advocating on this issue for years and have always found this public portrayal issue where the overwhelming focus is on the harm in using representatives as a lose-lose for all stakeholders.
I have met so many well-intentioned hard-working IRCC and CBSA personnel through conferences, working on committees, policy discussions or on specific cases – the mutual benefits are undeniable of having counsel at play in the process – especially for complex applications, yet it does not seem to translate to public messaging. The stakes of this public portrayal now are even higher as the technology can further distance us and the decision-maker. The need to rethink is clear. Informational equity is the foundation for the delivery and execution of an inclusive, fair and effective Canadian immigration system.
As always, thank you for reading.
Stay safe.