July 30, 2017 – The risk of hiring an overseas immigration consultant to handle your Canada immigration case is laid bare in an ongoing case involving 57 candidates rejected en masse.
All 57 cases were Chinese candidates who used the same unlicensed immigration consultant, Beijing-based Flyabroad.
The latest development in the case has given the candidates some hope, with the Canadian Federal Court saying each application should be considered individually, and that Ottawa was wrong to dismiss them as a group.
Even with this development, the cases are likely to be tied up in courts for months and years in a file that has already dragged on since 2015.
All 57 of the candidates used Flyabroad for applications via the Federal Skilled Worker Program, and failed to declare their representative on their applications.
When the details of the case became known, the IRCC wrote to all the applicants accusing them of using an unauthorized representative. Several of the candidates argued they had only used Flyabroad for translation services, not for immigration advice.
Problems with the regulation of the immigration consultancy industry were highlighted recently when a parliamentary committee recommended the responsible organization be disbanded.
The damning report suggests even those properly licensed by the Immigration Consultants of Canada Regulatory Council (ICCRC) are not being monitored properly. The committee concluded the council was in disarray, saying the federal government should take over the job of regulation.
Persistent problems abound. A central concern is the number of unlicensed rogue “ghost” consultants who continue to offer immigration related consulting services, inside Canada and overseas, in defiance of Canadian law. Additionally, the barriers to entry are so low that new consultants can easily obtain a license to practice after completing a 320-hour course of instruction and passing a multiple-choice test, without any supervised period of working experience in the field.
ICCRC In Free Fall
The ICCRC under its current executive, is clearly in free fall and unable to self-govern. It is mired in a cycle of resignations, including five from a 15-member board this year alone, conflicts of interest, high directors’ fees, petty infighting and near 3000 complaints against current members, and unlicensed fraudsters since 2011. Its complaints and review committees are comprised in part of untrained practicing consultants and retired RCMP personnel who lack the required competency and resources to properly investigate and enforce its own codes of professional and ethical standards. The parliamentary committee recommendation looks to be the final straw.
The ICCRC was set up in 2011 because of documented irregularities regarding how the previous regulatory body, the Canadian Society of Immigration Consultants, created in 2003, was being managed. Regulating consultants was first studied in 1995 with a parliamentary report advocating a self-regulating body, tabled in October 2002 and a subsequent report in 2008.
In the six years since ICCRC was created as a not-for-profit corporation in 2011, the number of licensed consultants has increased from 1,700 to near 4,000 and its revenue base founded primarily on membership fees is by all accounts, excessive. The latest figures show it has an operational surplus exceeding $1 million.
What is the difference between hiring a lawyer and hiring a licensed consultant?
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
- Extensive mandatory continuing legal education
However, replacing a self-regulatory body with another self-regulating entity has only resulted in a like-for-like set of circumstances six years later.
The Canadian Bar Association (CBA), representing 36,000 lawyers in Canada, has had its say, withdrawing its support for immigration consultants and telling the parliamentary committee there are ‘serious questions about whether immigration consultants are capable of self-regulation’.
On the government’s part, a spokesperson for Immigration, Refugees and Citizenship Canada issued a complacent holding statement saying it was monitoring the issue, while expressing confidence the ICCRC would resolve internal issues.
“The department is 100% committed to working with the current construct of the ICCRC”, said one Director General to the parliamentary committee. Given almost 15 years of a failed history from two consecutive regulatory bodies established by Ottawa, this response defies any credibility.
A recent Federal Court decision further highlights Ottawa’s challenges. In it’s biggest case on the topic, the court found on behalf of 57 applicants suspected of using the services of an unlicensed consultant in China who were refused en-masse for doing so. The court concluded that each applicant should have been given a fair opportunity to respond to concerns by Canadian immigration authorities. The cases will now be returned to the visa office but as practitioners know, applicants should not expect their applications to be resolved anytime soon.
The way out of this decades’ long morass is clear. Ottawa should get on with the task of disbanding the Immigration Consultants of Canada Regulatory Council, without delay. In its place, and given the persistent failure of the federal government to establish a self-governing body, it should revert back to square one. It must permit representation for compensation only by lawyers who are members in good standing with a law society in Canada, or notaries with similar standing in Quebec.
Alternatively, it should consider setting up its own regulatory body with proper oversight and safeguards to ensure impartiality, within the Department of Immigration, Refugees and Citizenship Canada. There is ample precedent and strategic benefit for this. In Australia, the Office of Immigration has set up a highly successful in-house regulatory body, the Migration Agents Registration Authority.
Closer to home, the Province of Quebec, which has its own authority to manage a comprehensive immigration program, regulates immigration consultants within the Quebec Ministry of Immigration. In both instances, there is an established infrastructure that successfully regulates immigration consultants, without the repetitive problems faced by ICCRC and its predecessor.
The Immigration Consultants of Canada Regulatory Council is dead. But the immediate need to protect the public is not. Canada’s federal minister of immigration Ahmed Hussen, who has legal authority to evaluate oversight of ICCRC, must now consider implementing transitional measures to relieve its current executive and appoint a suitable temporary replacement. This could also include participation from each of the 10 provincial and territorial law societies, pending the creation of a new entity. Such action would go a long way to help preserve the integrity of our immigration system and ensure it does not become further compromised.
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