Making room for legal representatives

The Immigration Law Section of the Canadian Bar Association urges Immigration, Refugees and Citizenship Canada to address the serious and systemic issue of legal representative exclusion.

The problem, the Section says, “is particularly pronounced in recent program changes and policies related to the COVID-19 pandemic including implementation decisions and online filing procedures that did not appropriately build in a role for representatives.”

The Section’s submission lists several recent examples of exclusion of representatives in new digital platforms, including the initial versions of the online citizenship grant, permanent residence card renewal and other portals and platforms that do not allow representatives to submit applications on behalf of their clients. This is concerning for many reasons.

One of them is that while it is possible for representatives to assist clients in the background, “the Immigration and Refugee Protection Regulations prohibit the use of concealed representatives for certain types of applications.” As well, it is not acceptable to expect applicants to share their personal login information with a third party, even if they are a trusted representative. “The information required to set up a MyCIC account is personal and requires applicants to undertake to keep their passwords private,” the Section says.

Another issue of concern to the Section is that while lawyers are subject to rules of professional responsibility regarding the preservation and protection of electronic passwords, “these rules do not apply to consultants. The roll-out of new platforms will encourage third parties not bound by the same ethical obligations as lawyers to ghost applications and accounts.”

Excluding representatives places applicants in a difficult position, the Section writes. “Digital platforms were designed to reduce processing times and create efficiencies. Applicants must choose between having a complete service, with inevitably slower processing of a paper application, or an online process designed for self-represented applicants.”

The Section notes there are persistent issues with representatives accessing the Webform/Case Specific Enquiry system and Call Centre. The Webform/Case Specific Enquiry system is an efficient way to update or submit documents and given the challenges of the pandemic on certain IRCC offices and call centre, the Webform is often the only way to reach someone at IRCC. Excluding representatives from the Webform prevents them from actively advocating for their clients.

A critical right to legal representation

The legal processes related to immigration and refugee programs can have long-term implications for individuals. “For example,” the Section writes, “findings of misrepresentation can impact an applicant’s other immigration applications, admissibility, and the future admissibility of their family members.” It is crucial to ensure platforms are built to give access to individuals’ legal representatives so they can counsel and guide their clients appropriately.

When legal representatives are not afforded a way to access the platforms on behalf of clients, it forces applicants to proceed without legal representation which, the Section says, “is procedurally unfair and can amount to a breach of fundamental justice. It can lead to prejudicial outcomes particularly for vulnerable clients who also face cultural and language barriers.”

Racialized applicants who are more likely to face these barriers are disproportionately affected, as are applicants, such as the elderly, who have limited access to technology and depend on professional assistance to access various application forms.

“Relationships between counsel and clients are often longstanding and involve significant trust,” the submission says. “Access to legal advice is a multi-dimensional process that requires ongoing care and support, and should not be compromised for any reason, including technological developments. Compromising the right of all individuals to the assistance of counsel with their applications may also lead to unnecessary and costly litigation, which further compromises access to justice.”

Improving efficiency by involving legal representatives from the outset

The Section recognizes that some of the new platforms that exclude representatives are “minimum viable products” that are meant to be updated. “However, limiting representatives’ access to the first version of a new platform will likely reduce buy-in for a new program, frustrating some of IRCC’s goals.”

The Section gives as an example a 2016 portal for online submissions of labour market impact assessment applications for employers. “Because no role was built in for lawyers, many employers did not trust the process. Usage was low until recently when Service Canada created a portal for legal representatives. Widespread implementation quickly followed as employers gained confidence in the system. If the system’s initial design included representatives, it would have been more widely used, resulting in processing efficiencies years earlier.”

The lesson, the Section believes, is that “for a new client-facing technology to succeed, representatives should be included from the outset.”