Why Hire an Immigration Lawyer?

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This question and answer article outlines the key issues involved in choosing an immigration lawyer.

There is no rule which says a candidate must hire a lawyer to successfully apply for Canadian permanent residency.

Many candidates apply and succeed on their own, while many who apply on their own face unnecessary delays or fail.

Taking a decision to apply for Canadian permanent residency is not done on a whim. It is a life-changing step made to improve the standard of living of an applicant and family members.

The process is costly, takes time and depends on the assessment of third-party officials who review and rate each case.

The review process needs full knowledge of rules and laws which are often revised. Policies and procedures change depending on the aims of the Canadian government of the day.

An immigration officer’s decision must consider an array of issues covered by volumes of government manuals, as well as ad hoc changes. These decisions are often challenged by lawyers and become the subject of volumes of reported case law.

The government encourages candidates to apply without a lawyer, but in reality a good lawyer protects an applicant’s rights.

The government acknowledges this:

“When lawyers and consultants present their clients’ cases in a clear and concise manner, processing is expedited and simplified.”
Canadian Embassy in Moscow’s Guidelines for Representatives. October 28, 1996.

Studies also offer proof of higher approval rates for applicants with lawyers.

A consultant is any person called on to give advice. A lawyer (attorney, barrister or solicitor) is licensed to perform legal functions. These may include:

  • Drafting documents,
  • Interpreting and applying laws,
  • Giving legal advice,
  • Representing clients in court.

The practice of law is regulated by each of the provinces. A lawyer must have the following credentials:

  • Bachelor of law degree from recognized university,
  • Law admission examinations,
  • Training under practicing lawyer.

The conduct of lawyers in Canada is regulated by the Professional Order of Lawyers (POL).

POL rules cover areas including:

  • Separate trust bank accounts for client fees,
  • Obligations of lawyers towards clients,
  • Performance of mandates.

Breaking these rules can result in the loss or suspension of a lawyer’s license.

Anyone charging a fee to give advice on immigration must be a member of one of the following:

  • Provincial or territorial law society
  • Chambre des notariés du Québec
  • Immigration Consultants of Canada Regulatory Council (ICCRC), which replaced the Canadian Society of Immigration Consultants (CSIC) in 2011.

The admission process for licensed immigration consultants in Canada is far less rigorous. Immigration consultants do not need the same education, nor are they scrutinized to the same standards.

A client not happy with a lawyer can raise a formal complaint with the POL, which has a fund to provide compensation for irregularities.

In Canada, this is not true.

Canada is a democracy with a government, legislature and judiciary acting independently. Ministers are held to account by parliament.

In immigration and other areas, the legislature gives the government power to apply the rules and laws which govern Canada’s people.

Applying the law requires discretion. A fundamental principle is that officials make decisions impartially and without outside influence.

Public officials face sanction if they are found to have not been impartial.

Private individuals face sanction just for claiming they can influence public officials.

Applicants should not work with anyone claiming to have government ties.

Canadian immigration laws and rules allow for the extensive discretion of immigration officers, exercised within precise limits.

A clear and concise application that addresses the key issues can be assessed more effectively, meaning visas are issued faster.

Examples

  • Skilled worker category

The skilled worker category has several jobs open to prospective immigrants without the need for a formal offer.

The visa officer must approve and score the candidate’s experience.

A lawyer will know the key points to highlight to maximize that score.

  • Business categories

Business categories require an applicant to have experience managing a company.

Different visa officers may reach different conclusions. One might conclude managing a large department of a company qualifies, another may not.

An experienced lawyer will know how to present experience effectively.

The Canadian immigration system is always changing to meet the policies of the government of the day.

Visa offices also have specific requirements, which are often not transparent. Success can depend on satisfying these requirements.

A lawyer with experience in Canadian immigration will address issues open to discretion in the application.

A lawyer will also highlight any issues with the assessment process, which are most often corrected without need for legal action.

The decision to move to Canada is life-changing for a family. A lawyer can help maximize the benefits of the decision and give guidance on issues arising once permanent residency is achieved.

Most of the large law firms in Canada do not provide immigration services. The area is generally covered by lawyers who practice independently.

Choosing a good lawyer requires research, and may include the following:

  • Referrals/References

This is the most reliable factor. Clients who have had a good experience will refer friends and relatives. A good lawyer should be able to put forwarded satisfied clients as references.

  • Specialization

Canadian immigration policy undergoes continuous change. A specialist, generally defined as having more than 10 years of full time experience, is more likely to be abreast of those changes.

  • Experience
    Some lawyers are vastly experienced. This does not automatically translate to expertise, but it is an important factor.
  • Contract
    This is required by all Professional Orders. You should receive a detailed written contract from your lawyer.
  • Funds in trust
    Applicants should make fees payable to the lawyer or law firm ‘in trust’.
    This is a condition demanded by Professional Orders.
    Client fees are held in a separate trust account monitored by the Professional Order. This provides a good indication the lawyer in question adheres to current rules.
    Applicants should be cautious about making any payment to a corporate entity, regardless of the recipient.
  • Initial assessments
    A lawyer should thoroughly outline the entire application process, in writing. The best known practices will do so at no charge.
  • Advertising

Some lawyers can be found through advertising. Potential clients should not use advertising alone in selecting a lawyer. Do more research first.

  • Internet

Lawyers will normally have websites to promote their services. Prominent lawyers may also have an established social media network.  Look for lawyers who write regular content on sites with in-depth information and analysis. Steer clear of law firms with sites containing a small number of outdated pages and minimal information copied from the government. A lawyer’s expertise should come across on their site content.  You may also find free assessments which offer an initial insight into your chances of success.

  • Publications

Accomplished and experienced immigration lawyers will regularly write articles appearing in industry publications.

It is a good idea to request samples of the lawyer’s published articles. Remember to differentiate between generic pieces with elementary content and those showing in-depth knowledge and analysis.

  • Canadian Bar Association

Most lawyers in Canada are members of the Canadian Bar Association (CBA).

The CBA has an immigration section with representatives in each province.

More accomplished lawyers serve as executive members of the CBA and participate in the exchange of ideas with Immigration, Refugees and Citizenship Canada.

This can indicate a lawyer has an up-to-date knowledge of the field.

  • Professional Order

All lawyers must be registered with a Professional Order in their province.

However, this registration is no measure of expertise.

  • Phone Call

Simply speaking with a lawyer will give an indication of professionalism.

You get an immediate indication of level of service, commitment and insight.

Ask the lawyer to clearly assess the process at hand. They should have no problem doing this.

The simple answer to this is no, except Quebec.

Immigration law is a federal matter, although provinces share some jurisdiction.

Anyone charging a fee to give advice on immigration must be a member of one of the following:

  • Provincial or territorial law society
  • Chambre des notariés du Québec
  • Immigration Consultants of Canada Regulatory Council (ICCRC), which replaced the Canadian Society of Immigration Consultants (CSIC) in 2011.

Quebec controls its own immigration, as per the 1991 Canada-Quebec Accord.

A lawyer in Quebec must be a member of the Quebec Law Society (Barreau du Québec). Consultants must be licensed by the Quebec Ministry of Immigration, Diversity and Inclusion.

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