Ghost Consultants and Canada's Immigration System - LawNow Magazine

Ghost Consultants and Canada’s Immigration System

If there’s one thing most people – regardless of political stripe – can agree on, it’s that ‘crooked’ consultants are incredibly problematic for Canada’s immigration system. Stories abound in the media of unsuspecting immigrants paying thousands of dollars to an unauthorized consultant, only to arrive in Canada to find that the job or college program they were promised does not exist. Newcomers have been counselled to lie or forge documents to enter Canada, or the consultant does that for them without their knowledge. These vulnerable immigrants will often then turn to an immigration lawyer to fix the harm done by these unauthorized immigration representatives. But sometimes it is too late; even the most qualified lawyer cannot reverse the damage and save the person’s immigration status. It is likely impossible to count how many vulnerable people have been exploited by these fraudulent activities.

The CBA recommends that only lawyers be permitted to provide immigration services. It suggests that lawyers could potentially supervise consultants who work as “specialized non-lawyer staff” in law firms, or enter into partnerships with consultants. By law, to provide immigration advice as a non-lawyer, one must become licensed as a consultant through the Immigration Consultants of Canada Regulatory Council (ICCRC). The ICCRC is a federally regulated body launched in 2011 to crack down on unauthorized consultants. It sets down rules for consultant conduct and has the power to enact disciplinary measures. However, as a regulatory body, its mandate is limited to the regulation of its own members. It is not authorized to deal with those individuals who are only posing as consultants. In other words, even though the purpose of the ICCRC was to put a stop to the unauthorized provision of immigration services, it was given no real power to do so. Further, members of the ICCRC are not subject to the same strict regulatory rules and oversight as lawyers, even though they engage in the same work for similar and in some cases higher fees. The ICCRC’s own guidelines only dictate that fees must be ‘fair and reasonable.’
In at least one case, the consultant frequently required the refugees to repay the cost of their resettlement funds, which is not only unethical but contrary to immigration law.

To be fair, there are licensed immigration consultants who do provide legitimate services. Unfortunately, their reputation has been significantly damaged by the unauthorized work of ghost consultants, particularly those whose cases hit the media. Take some recent examples, such as Alfredo Arrojado, a well-known and respected member of the Filipino community in Winnipeg. A former commissioner with the Manitoba Human Rights Commission, he has been charged with working as an unlicensed immigration consultant, allegedly receiving over $90,000 in fees over the past decade. In another well-known case, a BC man named Xun (Sunny) Wang was convicted in 2015, after taking $10 million in fees to file fraudulent immigration applications. In that case, 800 of his former clients’ cases are under review by government authorities. Those people face potential deportation to China. During the height of the Syrian refugee crisis, hundreds of lawyers across the country filed refugee sponsorship applications for Syrian people on a pro bono basis, which seemed to reflect an agreement within the legal community that it was simply the right thing to do. It was later revealed, however, that some consultants were charging refugees fleeing this conflict thousands of dollars to process their applications to come to Canada. In at least one case, the consultant frequently required the refugees to repay the cost of their resettlement funds, which is not only unethical but contrary to immigration law.

Despite the existence of the ICCRC, unauthorized consultants continue to operate in several communities across Canada. It is clear that drastic changes are needed. To that end, the federal government recently formed a committee that was tasked with reviewing the situation and making recommendations for how to overhaul the industry. After weeks of hearings, the committee made 21 recommendations in a report titled “Starting Again: Improving Government Oversight of Immigration Consultants.” The recommendations include the following:

  • Disbanding the ICCRC entirely in exchange for a new body with an expanded mandate to crack down on unauthorized work.
  • More rigorous training for licenced consultants and a blacklist for ‘bad’ practitioners.
  • Increased funding for settlement agencies to better assist newcomers, and more funding to Canada Border Services Agency to enhance resources for investigation and enforcement.
  • Significantly raise awareness in foreign markets about unauthorized agents.
  • Improve Immigration, Refugees and Citizenship Canada’s call centre to provide more in depth information in languages most commonly used by prospective immigrants.

Immigration Minister Ahmed Hussen has indicated that he will review the recommendations and provide a response, but no commitments have been made so far.

By law, to provide immigration advice as a non-lawyer, one must become licensed as a consultant through the Immigration Consultants of Canada Regulatory Council (ICCRC).While many of the recommendations appear sound, it does beg the question – what will the new regulatory body do that is any different from the ICCRC? If regulation has not worked in the past, will anything change in the future, even with more robust oversight? In its response to the committee’s recommendations, the Canadian Bar Association’s immigration section has posed these questions. The CBA’s position is that despite seven years of ICCRC oversight, the incidents of unauthorized consultant misconduct have not changed substantially. In the opinion of the CBA, “there continue to be serious questions about whether immigration consultants are capable of self-regulation, even with significantly revamped oversight.” The CBA recommends that only lawyers be permitted to provide immigration services. It suggests that lawyers could potentially supervise consultants who work as “specialized non-lawyer staff” in law firms, or enter into partnerships with consultants. In any scenario, the CBA’s recommendation is that for all immigration services, lawyers maintain control over the entirety of the file and ensure compliance with law society rules.

Is there a place in the world of immigration advising for a regulated, trained consultant? For many, it may come down to a question of dollars and cents. Even if the warning stories in the media have raised some awareness about this issue, the fact remains that many newcomers continue to turn to an immigration consultant instead of a lawyer, due to the belief that a consultant charges much lower fees. In some cases, they may. However, this is not always reflected in practice, as there is no way to regulate how much a licensed consultant charges for services. Further, many clients eventually end up seeking the services of a lawyer, in the end paying double or triple the cost of what may have been required initially.

At the very least, lawyer oversight should be mandatory. There are many complex immigration applications that consultants, even regulated, are simply not trained to do. It is doubtful that a person would seek the services of anyone but a lawyer when facing criminal charges, a hostile marital breakdown or a pending commercial contract.  Navigating a person through the process of legally entering and remaining in Canada also requires the work of a legally trained professional.

Authors:

Kari Schroeder
Kari Schroeder is an experienced lawyer in Calgary in all areas of immigration and refugee law.
 


A Publication of CPLEA

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