I’m regularly asked by friends, family, colleagues and clients why our immigration system is so broken and how we got here. I supposed I’m asked because I’m considered an ‘expert.’ I led the immigration bar as national head of the largest immigration bar association group during COVID and then went on to co-found and lead another immigration lawyers’ group. I’ve been practicing immigration law for almost 25 years and I’m grateful to my colleagues in the bar who list me amongst the top in my field during peer reviews rankings. I’m called a ‘thought leader,’ the Law Society of Ontario certifies me as a specialist and I somehow received a Diamond Jubilee medal.
Before I turn to how our system is broken, let me first say that we don’t have a major problem with the number of permanent residents which have hovered around 1% of the population. Temporary residents, comprising of students, foreign workers and visitors, on the other hand, are a different story. We used to have a few hundred thousand but now have 3 million and most of them are students, graduates on work permits and family members of these two groups. Simply put, the provinces didn’t regulate the community colleges and their partnerships with private colleges and the federal government let too many in. The numbers can be brought down but this won’t fix our system.
Those who were lied to by non-lawyer ‘consultants’ here and abroad about a guaranteed pathway to permanent residence will not want to leave. Many are being re-victimized by unscrupulous non-lawyer representatives who are charging exorbitant fees for fake jobs (the fake jobs lead to more points on their immigration applications). Young female students are suffering sexual exploitation to get coveted jobs and fake refugee claims are being facilitated by non-lawyer consultants as well. For those who can’t afford a fake job or are too afraid to make a fake refugee claim, there is always the option of simply going ‘underground’ rather than leaving Canada.
Our system will remain broken until we fix who is providing legal advice. A lawyer is far less likely to ‘help’ a client with a fake refugee narrative or to arrange for a fake job offer for some extra cash. As an “officer of the court,” a lawyer has higher duty towards the integrity of the judicial process, both inside a court or tribunal and in day-to-day practice. While the vast majority of non-lawyer immigration consultants have invested very little by way of education and can pivot to another career (say, as a real estate agent), it’s entirely different for a lawyer. A lawyer must be admitted to and pass an academically rigorous 3 year law school program typically after a Bachelors degree as well as the time interning (articling) for a year and then the bar admissions process and call to the bar.
There are over 12,000 licensed immigration consultants and an unknown number of non-licensed ‘ghost’ consultants who practice immigration law by taking fees and submitting applications without disclosing their representation. There are about 2,000 immigration lawyers.
What are the implications of so many non-lawyers practicing immigration law? Not every licensed consultant is unscrupulous. However, even those immigration lawyers with cozy relationships with consultants acknowledge readily that they are shocked and horrified as to what they see even from the ‘good’ consultants who ‘don’t know what they don’t know.’ But besides under-representation, we have the large problem of immigration consultants who have learned just enough to game the system. The resulting fraud costs the system immensely. Taxpayers pay for expensive adjudications of fake refugee claims and people sail through our immigration points system based on already being active in the labour force when the job is actually manufactured or paid for or misrepresented as higher wage or higher skill.
Who let us down and how and why?
The Government / Politicians
About 8 years ago, with constant negative stories in the media about immigration consultants and after two failed attempts at self-regulation, there was pressure for the government to act. At this time, I helped lead the ‘immigration consultant file’ at the Canadian Bar Association Immigration Section and my co-leaders and I liaised with then Immigration Minister Ahmed Hussen and his office. We were quite clear that only lawyers should be practicing law. Somehow, Minister Hussen mischaracterized our position as saying that the Law Societies across Canada should govern them and of course, the Law Societies were not keen.
A federal election was looming and the coveted 905 region was in play. I’m told that politicians of all political stripes are vulnerable to support from immigration consultants who help with re-election campaigns. In any event, the Parliamentary Standing Committee studied the issue of immigration consultants and heard from witnesses including myself, representing the CBA Immigration Section. The Committee had heard from the consultant’s advocacy group (CAPIC) that the only real problem was that their regulator lacked investigative and disciplinary powers similar to those exercised by Law Societies. The Committee ended up recommending that a third attempt at self-regulation be attempted, this time with these disciplinary powers (see Recommendation 6 here Committee Report No. 11 – CIMM (42-1) – House of Commons of Canada (ourcommons.ca).
I believe then Liberal Immigration Minister Hussen and Opposition Critics Michelle Rempel (Conservative) and Jenny Kwan (NDP) know full well the damage caused by immigration consultants. Most MPs are well aware given how much of their constituency time is spent dealing with immigration issues. I wish politicians would take a principled stand on this issue. Minister Miller has recognized some other problems with our system and has shown he’s not afraid to act. If he were to recognize that a lawyer’s license must be on the hook with all immigration representation, I believe immigrant communities and the general public would approve.
The Senate
The most active Senator on immigration issues is Senator Ratna Omidvar. She has asked pertinent questions relating to immigration consultants and I believe she’s aware of the issues. The problem is that those who appear before her from the regulator of consultants (the College) and their advocacy group (CAPIC) are full-time employees who have been in their roles for many years. The only immigration lawyers who appear on these issues are volunteers with busy day jobs. I will just put it this way: the manner in which representatives from the College and CAPIC gloss over the sheer number of complaints against consultants and rampant negligence and fraud is really quite something.
The College
Current Immigration Minister Marc Miller likely feels that he has his plate full and that problems relating to consultants should be directed towards their regulator. Yet the vast majority of Board Members at the College have no prior experience in the immigration law field and the College is overwhelmed with complaints. One Board Member confessed to me that there are simply far too many consultants for them to handle. Of course, this is because so many were grandparented when the current regulator took over. This was a huge mistake. It is now marginally harder to become an immigration consultant. I say ‘marginally’ because the Queen’s University course is online and contains none of the rigor of law school. But it would have been better not to have grandparented all the consultants who merely took a substandard community college course. The other problem with the College is that discipline is so utterly lacking that consultants do not fear their regulator at all. The regulator for lawyers, the Law Societies, carefully monitor lawyers’ trust accounts and perform spot audits. They also thoroughly investigate any complaints. The contrast with the College couldn’t be any starker.
The Media
The Toronto Star ran an award winning expose on immigration consultants decades ago and Kathy Tomlinson won a Michener Award for her investigation into them in 2019:
However, in the past few years, while there have been countless stories criticizing the government on numbers, policy and overall coherence, I have seen nothing written about immigration consultants in terms of how they affect the entire system. The advocacy group for consultants, CAPIC, started to get aggressive with reporters, demanding ‘balance’ in stories. They would write to news organizations whenever an unflattering story came out. I believe this had an impact as many stories coming out today quote representatives from their current regulator (the ‘College’) and also from other immigration consultants, rather than lawyers or lawyer association groups. In most stories, the public is never informed that it doesn’t have to be this way and that perhaps there is a problem with non-lawyers practicing immigration law.
I hope some brave reporter will take the time to understand the complexities of this issue and why who can represent clients in this area matters.
The Judiciary
The Federal Court hears many cases where it’s alleged that the consultant was negligent. Generally, the Court does not interfere with the Immigration Department’s stance of ‘buyer beware’ and errors or misrepresentations made by immigration consultants are generally not excused. Most Federal Court judges have no background in immigration law and are unaware of the rampant fraud and negligence. Many would have no idea of the financial and sexual exploitation which occurs or that these victims were duped all the way through, including as early as when they were lied to in their home countries by non-lawyer consultants who promised them a guaranteed pathway to permanent residence. As an aside, the Court is also facing its own issues of ‘ghost’ representation as some licensed and unlicensed consultants are actually filing cases in the Court by using the client’s name without disclosing their representation.
The Bar
There are some highly respected colleagues more senior even to me who have either testified at Standing Committees or provided advice behind closed doors. Unfortunately, some colleagues benefit financially from referrals by immigration consultants and are reluctant to speak out against them. When I testified at the last Parliamentary Standing Committee, I was told: “they’re going to come after you.” Suffice it to say that while our Bar should be united on this issue, too many respected colleagues feel that consultants are here to stay so they may as well educate them and take work from them and keep quiet about the fraud and negligence they witness. Of course, some have seen me targeted on social media and otherwise and don’t want to endure this.
So there you have it. The long answer and the real answer to the question of why our immigration system is broken.