Why lawyers must supervise the work of immigration consultants

In a recent paper published in the Canadian Bar Review, Lisa Trabucco presents immigration consulting as an example of an area of law that has been successfully opened to non-lawyers. Yet, far from a being a model for emulation, the history of immigration consultants practising law in Canada is lamentable and often shocking.

Immigration consultants are regulated as non-lawyers authorized by statute to provide legal services in immigration and refugee matters. They are licensed after completing a community college program and meeting some other very basic criteria. Since 1995, the Canadian Bar Association has raised concerns regarding the incompetence, negligence and fraud routinely exhibited by many consultants in their representation of vulnerable immigrants and refugees. Repeated attempts to solve these difficulties through self-regulation have failed.  In 2011, oversight of registered consultants was entrusted to a new self-regulator, the Immigration Consultants of Canada Regulatory Council, which replaced a previous self-regulator. This has done little to remedy the systemic concerns.

In December 2016, the ICCRC reported an astonishing 1,710 complaints had been made against consultants in its five years of existence. This is likely under-reported – in our experience, victims choose not to register complaints, particularly when no immigration benefit will result. This is in striking contrast to the few disciplinary cases against immigration lawyers. Law societies do not track complaints by practice area. However, a search of the two main legal research services, CanLII and LexisNexis Quicklaw, reveals only 23 reported disciplinary cases against immigration lawyers across Canada from 2011 to December 2016. In Ontario, immigration lawyers even received a 50 per cent base premium discount from LawPro (our professional liability insurer) in 2015 because of the low number of claims against them.

Parliamentary intervention

In 2017, given the distressing and persistent problems with the consulting profession, the House of Commons Standing Committee on Citizenship and Immigration investigated the legal, regulatory, and disciplinary frameworks governing immigration consultants.

The committee heard countless stories of separated families, residents deported, and refugee claimants sent home in peril. Ultimately, it made 21 separate recommendations — most notably, to abolish the ICCRC as soon as possible and establish a government oversight body. It also recommended more rigorous education, training, and ethical standards for consultants, and introducing a system of tiered licensing to redefine their permitted scope of practice. Call it, if you prefer, a complete overhaul of the entire immigration consulting profession.

Even so, Ms. Trabucco’s paper cites the same findings to support greater use of non-lawyers, noting that the committee “did not recommend that regulated non-lawyers be restricted from providing […] immigration and refugee legal services” — an “endorsement” in her view. Yet, the clear trend is toward greater monitoring and restriction of consultants in an effort curb the damage being done — not a more expansive use of such professionals.

Negligence vs. competence

Admittedly, we see no appetite on the government’s part to regulate these consultants given the potential constitutional and conflict-of-interest issues. The cost to taxpayers is also likely dissuading it from doing so.

In that case, the only viable solution, which adequately protects the public, is for lawyers to supervise any work done by consultants.

That is what Professor Sean Rehaag recommended back in 2011 in a study published in the Osgoode Hall Law Journal, after examining data from nearly 80,000 refugee protection decisions spanning five years. Consultants had significantly lower success rates on claim adjudication than lawyers, he found, and therefore should not be acting, unsupervised by lawyers, “in life and death refugee claims.” In fact, lawyers should be involved throughout the refugee determination process.

Ms. Trabucco acknowledges only that refugee claimants were found to succeed more often when represented by lawyers than consultants. Then she goes on to state the study also found many examples of work done by “extremely well-qualified and conscientious immigration consultants.” She relies, however, on a cursory comment made in obiter without citation or support, while the study is conclusive in its findings that, on average, claimants received a much higher quality of representation with lawyers.

This brings us to the false argument that bad apples among lawyers are proof that such problems are not exclusive to consultants. It overlooks a qualitative distinction. The primary problem is not one of negligence but of competence. Lawyers who have typically graduated from a rigorous three-year law degree and passed the bar, are qualified and sufficiently trained to provide competent legal advice. Unfortunately, a small number practise negligently or fraudulently due to apathy, greed or some other shortcoming.

Consultants, on the other hand, simply lack the training and qualification to address the complex legal issues that regularly arise in the immigration and refugee context. This is true regardless of whether they are acting in good faith or to their maximal ability.

The solution to negligence and fraud is proper regulation. The solution to lack of competence is greater training. To interpret Federal Court and Supreme Court jurisprudence affecting the immigration status and possible safety of a client, the minimum qualification is the completion of law school. Even then, the practitioner has only a baseline qualification and ought to benefit from the guidance of an experienced immigration lawyer. Also, immigration and refugee law often intersect with other disciplines, including family, criminal, constitutional and international law. These issues are not on the radar of individuals with limited training. A short-term college program is woefully inadequate preparation for the task at hand.

With respect to the litigation skills exhibited by consultants before the Immigration and Refugee Board, Paul Aterman, then Deputy Chairperson of the Immigration Appeal Division, had this to say at Parliamentary testimony in 2017: “Counsel in a hearing needs to know the difference between evidence and argument,” he said. “Counsel needs to know what the right legal test is, what the best litigation strategy is, how to examine or cross-examine a witness. They have to be able to think on their feet. They have to be persuasive.” He concluded by saying that “there is considerable scope for improvement when it comes to immigration consultants acting as litigators.”

Though consultants cannot practise before the Federal Court, the issues that come before the court first arise during the application or tribunal stage when consultants cannot properly identify or adequately address the legal concerns. . By the time the case reaches judicial review proceedings, it is often too late to turn back the clock. A procedural court and is bound by the evidence and arguments on record.

Access to justice

The access-to-justice argument is premised on the assumption that lawyers will, on average, charge more for legal services than consultants. There is no evidence that this is true.

We regularly encounter clients who are charged inflated amounts by consultants to file applications with no chance of success or to perform simple tasks beyond what would be remotely reasonable for even the most experienced lawyer. On complex matters, we regularly deal with the aftermath of consultants using the desperation of a client in a difficult position to extract unjustifiably higher fees.

You can call that anecdotal evidence, but it is buttressed by repeated testimony before the Parliamentary Committee regarding the “exorbitant fees” charged by many consultants.

Ultimately, immigration consulting is a business, the end goal of which is to maximize profits. And yes, immigration lawyers must make a living, too. But as members of the bar, they have to be mindful of the critical role they are entrusted with in acting for the client’s best interest and upholding the fair administration of justice.

In addition, we must not discount their passion as practitioners motivated by a desire to help vulnerable people. It’s worth taking note of the availability and willingness of many immigration and refugee lawyers to provide legal services at the same cost or less than an average consultant, if not pro bono. Given our many past efforts at providing free assistance following recent natural disasters and political upheaval (Sri Lanka 2005, Haiti 2010, Philippines 2013 and Syria 2015), we find it difficult to accept the licensing of consultants being framed as an issue of access to justice.

Fortunately, there are solutions to improving competency and accountability that also can contribute to better access to justice. We can allow consultants to practise under the supervision of competent lawyers. Governments can provide greater funding for legal aid certificates and programs for immigrants and refugees. We can also expand the number and scope of legal clinics that provide services and offer training to settlement agencies and clinic workers operating under the supervision of lawyers who are happy to volunteer to do so.

It is never easy for lawyers to make arguments in favour of lawyers. Perhaps this is why for over 20 years the CBA supported a role for registered consultants practising independently (provided they could be effectively regulated). But it later changed its position in light of the sheer volume and magnitude of harm. And for good reason: Immigration and refugee lawyers are the ones who regularly see the grave consequences of allowing non-lawyers to practise immigration law. You have to be in the weeds to understand the daily impact. There’s no other or better group of individuals who can address this issue. We would say it is our professional responsibility to do so.

At a time when there is much discussion about opening the legal profession to non-lawyers, the experience with immigration consultants offers a case study of the perils and pitfalls that can lie ahead.