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Pathways without counsel

Access to counsel remains critical for applicants who cannot file for themselves.

access to justice online

When in April, the federal government announced new pathways to permanent residency for foreign-born healthcare workers, essential workers and recent international graduates, it made applications accessible online. All very modern, except that there was no way for applicants to have legal counsel file on their behalf.
In May, the Canadian Bar Association Immigration Section wrote a letter to Immigration, Refugee and Citizenship Canada (IRCC) cautioning that the absence of an agent portal undermines the right to counsel and access to justice. On May 28, the IRCC confirmed it would add the agent portal but did not give any timelines.
Applicants are dissatisfied. In May, the Information Commissioner of Canada issued the report, “Access at Issue: Challenging the Status Quo,” and reported that 98% of total access requests come from IRCC. From 2019 to 2020, there were nearly 117,000 access requests filed. Less than 40,000 requests came for all other departments combined. The IRCC is ranked first in complaints with more than 4,200 complaints. The RCMP, ranked second in complaints, had only 355.
Last year the IRCC began to pivot from paper to online applications because of the pandemic. In the 2020 federal budget, the government announced $72.1 million towards updating the IRCC’s information technology system.
The CBA letter focused on how access to counsel is critical for clients who cannot file for themselves, including people with accessibility issues or those without internet access. The letter also highlighted lawyer complaints in dealing with IRCC call centres since agents cannot access their client’s completed forms.
“Lawyers were cut out of the process,” says Lisa Middlemiss, a lawyer at Gomberg Dalfen and secretary/communications officer for the CBA Immigration Section. “We have clients who are busy, or they’re not tech-savvy, and they need someone to file the application for them.”
Typically the IRCC consults with the immigration bar when rolling out new technology and hosts monthly meetings with immigration lawyers. But, according to Middlemiss, there was no mention of the new immigration portals.
The IRCC blames COVID-19 as the reason for excluding agents. In the IRCC response, Dr. Nicole Giles, Associate Assistant Deputy Minister says they, “prioritised the rapid implementation of minimal viable products digital intake tools, recognizing that the products will not be comprehensive and will continue to evolve.” They argued that screen sharing and clients being able to pause their applications was adequate for applications to seek legal counsel. Middlemiss disagrees.
“Clients don’t have time to sit with us for hours while they go through the application,” says Middlemiss. “What we have now is fragmented representation.”
The right to counsel is essential in a system where people have a short window to apply. Information on applying for the new PR programs wasn’t available until May 5, only one day before applications opened. With only 90,000 spots available, demand shut down the portal less than 24 hours after it opened on May 6. This left lawyers scrambling to advise foreign workers and students.
“I was contacted by ten different applicants wanting to apply on that day,” says Deanna Okun-Nachoff, partner at McCrea Immigration Law LLP. “If I took them all as clients, how would I decide which application to file first? Knowing I might only be able to complete one filing before the program caps were reached, I would be forced to prioritize the interests of one client over the others. Ethically I could act for only one.”
Okun-Nachoff doesn’t agree with the CBA’s approach. “In a routine situation, where someone has met the requirements is filing for permanent residency, they shouldn’t need a lawyer,” she says. “We shouldn’t make the system so complicated. This is the access to justice issue.”
One major issue is the design of the online portals. In the Information Commissioner’s report, one recommendation includes utilizing the portal to give applicants more detailed and timely updates. Most information requests are about finding out why an application was denied.  
“Our system often prioritizes enforcement over compassion,” says Okun-Nachoff. “The humanitarian goals of our immigration and refugee scheme are compromised by a strict fraud-prevention mandate. For victims of extreme trauma, in particular, intense and insensitive scrutiny can be inhumane.”
Labour advocates also point out the inequalities built into the system. To be eligible, applicants must have worked as essential workers for 12 months within the last three years but must be currently employed when applying. This leaves workers vulnerable.
“For people with employer specific work permits, it’s really hard to get out of an abusive situation,” says Jonathon Braun, staff lawyer at the Migrant Workers Centre in Vancouver. “Some people have their wages taken or are forced to work for 16 hours. They finally leave, but under this program if they leave, they might not be able to file. It can take six months or more for them to find a new job and get a work permit.”
The new pathway requires workers to have at least Level 4 English or French skills, but settlement programs are difficult to access for rural farm workers. There’s also no pathway for undocumented essential workers to gain valid legal status.
“We need essential workers,” says Braun. “For example, we have migrant workers from Mexico and Guatemala who might not speak English or French. If they’re so essential to bring them here to work without the language requirement, we shouldn’t need that for them to have a path to permanent residency.”