The Every Lawyer

Exclusion of counsel in immigration process

Episode Summary

We discuss the exclusion of lawyers in the Immigration, Refugees and Citizenship Canada's online platforms and portals, with Lisa Middlemiss.

Episode Notes

We discuss the exclusion of lawyers in the Immigration, Refugees and Citizenship Canada's online platforms and portals, with Lisa Middlemiss.

Lisa Middlemiss has been a lawyer with Gomberg Dalfen since 2013. She is passionate about Canadian immigration and citizenship issues and she advocates at the federal level as a member of the Executive of the Citizenship and Immigration Section of the Canadian Bar Association.

Click here for more information on The CBA Immigration Law Section.

The Immigration Law Section wrote to IRCC earlier this year to raise concerns about the exclusion of lawyers. 

Former CBA President Bradley Regehr sent a letter expressing concern that Immigration, Refugees and Citizenship Canada is preventing lawyers from effectively representing their clients to Immigration Minister Marco Mendicino and Justice Minister David Lametti.

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Episode Transcription

Exclusion of cousel in immigration process

Voiceover:                           This is The Every Lawyer presented by the Canadian Bar Association.

Marlisse Silver-Sweeney:   Welcome to The Every Lawyer a Canadian Bar Association podcast I’m your host Marlisse Silver-Sweeney. There’s been a lot of positive adoption of technology stemming from the COVID-19 pandemic. Can anyone say Zoom happy hour? But today on The Every Lawyer we’re discussing digital platforms causing grave concern to immigration lawyers. Immigration refugees and citizenship Canada introduced online filing procedures during the pandemic that exclude legal representatives. Programs such as the online citizenship grant don’t allow lawyers to submit applications for their clients. This could amount to a breach of fundamental justice according to the CBA, and today we’ll talk about how and why.

                                             Lisa Middlemiss will break down this complex issue for us. Lisa specialises in immigration law at Gomberg Dalfen and is currently the vice-president of the citizenship and immigration section of the Canadian Bar Association.

                                             Lisa, thanks so much for being here with us.

Lisa Middlemiss:                 It’s a pleasure. Thanks for having me.

Marlisse Silver-Sweeney:   So, earlier this year the CBA expressed concerns to Immigration, Refugees and Citizenship Canada for its new technologies which excluded counsel from the immigration process. I was wondering if you could break down a bit for us just how these new technologies deprive applicants of the right to counsel in a general sense.

Lisa Middlemiss:                 Right. No. It’s been a very troubling phenomenon that we’ve seen come about during COVID-19, actually. The department of Immigration, Refugees and Citizenship Canada has, in all fairness to them, reacted very quickly to the pandemic to understanding that it’s important to adapt immigration processes in light of a global pandemic such that, you know, paper applications become less viable and online processes are more accessible in that regard. 

                                             So they developed a number of new tools and technologies that facilitate the online filing of immigration applications. And so I can mention a couple of them to you that were developed over the course of this last year, for example, or previously, which were rolled out initially in a format that did not allow counsel to properly represent.

                                             So, you know, there is precedent for representatives being able to properly submit applications for clients. We’ve had what we call the authorized paid representative portal for years now – almost a decade, I think; maybe not quite that long – whereby we have been able to file applications for our clients under our own umbrella as a representative. So all of our clients’ applications are found in that portal. So we were rolling with that, if you will, and representing clients and submitting and in that regard. But during COVID-19 there have been some other processes that were implemented which did not have such an easy feature or that did not even have a way for representatives to submit online, and we’re still seeing some of them today.

                                             So, one of them which was quite notable amongst the immigration section membership is what we call the TR to PR portal – the temporary resident to permanent resident pathway portal – which was developed by IRCC, initially only for individuals, and, well, actually has only been developed for individuals. Because the idea was this was a one-time program whereby the minister was opening up the levels to immigrants who may not have otherwise qualified for permanent residents such as frontline workers, and some students who might have – international graduates who didn’t have, you know, one year of Canadian work experience, might not be eligible for the Canadian experience class.

                                             So the idea was go live fast within the TR to PR Pathway, let individuals apply, it will be kind of a, you know, a go-to self-representation, I believe is sort of what they envisioned. Because they needed to implement it very quickly. And the quotas filled, like, incredibly quickly. Like, if we look at the English-speaking international graduates stream, it filled in just over 24 hours –

Marlisse Silver-Sweeney:   Wow.

Lisa Middlemiss:                 – through this online filing. Yeah.

                                             The process was filled out rapidly and the guide only available the day before the TR to PR Pathway opened. And we quickly learned the day before that it was going to be very challenging to represent clients because they actually had disclaimers or mentions on the website that said that your representative could not create the portal, that the representative cannot upload documents or populate. Really, that that was not going to be possible, and in meetings with the department they suggested that the only way would be to help clients with this to – and the only way for clients to have counsel would be for counsel to screen-share with the client, the client would have the application portal open on their side, that they made in their own name, and then they would have to screen-share with the lawyer who would then provide direction, I guess, in terms of what documents to upload.

                                             But given the stakes were so high and the program numbers were filling up by the hour, and obviously, you know, lawyers handle multiple mandates sometimes under normal situations. So this precluded many applicants, in my opinion, from receiving counsel, I don’t quite – counsel. It hampered the ability of those who did attempt to guide clients through this process because they couldn’t submit on their clients’ behalf. The client ended up submitting and in some cases the individual applicant may have uploaded the wrong document. Maybe they missed the deadline to submit because they’re a truck driver and they didn’t have time to, you know, pull together an application through counsel, because counsel couldn’t submit on their behalf.

                                             So effectively immigration lawyers were side-lined in this process, which is unfortunate because these are complex processes and the TR to PR Pathway was certainly one of them. And there are applicants who have faced refusals outright because they did not properly provide the required documents.

                                             And so this is one example that we had seen. For example, I don't know, I could definitely elaborate on some developments in this regard.

Marlisse Silver-Sweeney:   That’s great. Well, thanks for starting there. I definitely have some follow-up questions for you about these issues and the platforms generally. I was wondering if, and you spoke to this briefly but if we could go into it in a bit more depth. How does something like the TR to PR platform that doesn’t allow counsel to upload documents on behalf of their clients, how does it impact that solicitor-client relationship, and what ethical considerations are lawyers held to when it comes to things like electronic passwords that people like perhaps immigration consultants might not be as bound by? 

Lisa Middlemiss:                 Thank you. Yes. Solicitor-client relationship is negatively impacted when the solicitor doesn’t have full access to the tools they need, because it involves a relationship of trust and of competence. So by barring immigration representatives from performing certain – accessing certain technologies – for example, until today, we still cannot file online citizenship applications for our clients – it specifically says on their website that representatives cannot access the online process – it hampers us in our ability to best represent the interests of the client.

                                             And it may even pose ethical dilemmas. Like, for example, with the online citizenship application, we understand that the online application processing of a citizenship application is going faster. However, we cannot actually – we cannot submit online on behalf of our clients. We must submit by snail mail or a courier if you will, but it goes through the snail mail type of paper system. So we are hampered in that our client’s application may go slower. So, for example, you could tell the client, well, you’d be able to apply on your own – it’ll go much faster – however, you won’t have any counsel. You know? You won’t be able – you know, we can’t actually handle the process and ensure all is done correctly. Or you can hire us and we will ensure that all is there and all is accurate; however, the process is going to be longer.  

So these are sort of obstacles that we shouldn’t have to be faced with, because we do have obligations under our respective law societies across Canada, and we have ethical obligations and these pose ethical dilemmas and professional dilemmas, even beyond ethics.

Marlisse Silver-Sweeney:   Right. Yeah. Well, thanks for explaining it to us and breaking it down in that way. I wanted to also ask you about, in one of the communications with Immigration, Refugees and Citizenship Canada, the CBA said the lack of counsel in some of these processes disproportionately will affect racialized applicants. Can you explain how so? 

Lisa Middlemiss:                 Right. No. It’s a very – I know it’s a very interesting point raised, and I think it relates to the fact that racialized communities in some cases may not have the same access to technology or languages. Like, for example, racialized new immigrants may not have the ability to, you know, in English or French access the platforms that IRCC has set up, and be able to submit on their behalf. And rather they need someone to counsel – counsel to submit on their behalf and navigate in the language that’s not their first language, perhaps, and be able to ensure that everything is done correctly. 

                                             Or, for example, I think we could say that in some of the frontline occupations that the minister rightfully targeted and a great – in this – it was a great overture, if you will, to include these types of occupations in a permanent residence program, which had maybe not been so prominent in the past, for sure. It’s great. It’s a great idea to include these, you know, frontline occupations – the truck drivers and grocery clerks and others and healthcare workers and or and orderlies et cetera. However, if you do not set up the technology to allow those very busy people to be able to access counsel, you sort of don’t achieve the fulsome goal that you intended to in the first place.

Marlisse Silver-Sweeney:   Right. So the technology isn’t actually matching the goal of IRCC.

Lisa Middlemiss:                 Yes. It seemed. It seemed. So it’s a good start but in terms of the program and reaching out to, quote unquote, low-skilled, you know, the minister has said, I think, before that he does not – he thinks that distinction between low skilled and high skilled is not the right one, and the pandemic has made that clear as we’ve seen the importance of, you know, different kinds of frontline workers. But the technology needs to ensure that people who wish to hire counsel or access counsel will not be disadvantaged by doing so; that they will, in fact, be able to receive the counsel that they engaged in the first place.

Marlisse Silver-Sweeney:   Right. Right. OK. And I try not to repeat jargon but a lot of the communication with the government mentions the phrase minimum viable product.

Lisa Middlemiss:                 Mm-hmm.

Marlisse Silver-Sweeney:   You see that a lot when they talk about the rollout of some of these new platforms. Can you unpack that? What are they talking about there?

Lisa Middlemiss:                 Yes. My understanding what they mean by a minimum viable product is that according to them they have been under fire to, you know, or under pressure if you will, to rapidly release the new technologies to permit applications filing online. For example, the PR representative, or the PR application portal, which they recently expanded to representatives in September, actually. So there has been one positive development in that regard.

                                             But the minimum viable product of the PR application intake portal was the first iteration, meaning that at first they said, well, it’s such a rush. They hired a company – I believe it’s called Iron Mountain – to develop the product, the technology, and they ran it through the through the trials quickly without embarking lawyers on the testing and whatnot. And the idea was just to go live with it as soon as possible to reduce the paper backlog of applications and get applications in process faster. But the by-product of that sort of rush to get it available was that, again, representatives were not integrated. So at first we were not able to submit these online PR – permanent residence – applications, and, as such, you know, we were told we’ll be part of the next step of – as the product evolves, meaning the technology, we will be integrating representatives. But there was no direct date on the horizon at first.

                                             It’s only after a lot of advocacy, I believe, on behalf of the CBA immigration section and individual lawyers, that the department then moved to upgrade the product to integrate representatives. And so it’s interesting because we started our – the CBA immigration section sent a letter to the department – I guess it was in May – to mention that we were not in favour of minimum viable products which excluded counsel, because people have a right to counsel in their immigration pathway. These are very complex processes with serious consequences on people’s life. 

                                             And we received a response back from the ministry basically suggesting that they heard us but mentioning all of the unusual exceptional circumstances of COVID-19. But we still really were perplexed and many people were disappointed, and others even, you know, I’m not sure I could say outraged, but there were people who were outraged that that lawyers could not properly access a technology which was really vital to take advantage of, you know, faster processing times, and to be able to properly represent their clients.

                                             So after that there were further discussions and our section worked closely with the CBA president, our past president as we have a new one, but past president Brad Regehr to send a letter to both ministers of justice, [the medi? 00:16:50] and Minister Mendicino of immigration, to remind them that it’s that there is a right to counsel and immigration processes and has very devastating consequences for applicants when lawyers cannot assist their clients in the way that that we need to do so and to fulfill our own mandates with the solicitor-client relationship.

                                             So after the letter that CBA president Brad Regehr sent to the ministers of justice and immigration, shortly thereafter we did hear from Immigration, Refugees and Citizenship Canada that they would be implementing an updated version of the PR intake portal, which would be a representative portal which they went live with. They honoured their promise at that point and went live with it in September, and I’m already starting to use it as other practitioners are, and it’s just – it’s just wonderful and it would have been great to have that at the outset, but glad to see they’re going in the right direction in this regard; would like to see that, of course, across all immigration technologies, including for citizenship applications.

                                             And also there’s a new process to virtually land clients, which cuts out representatives in the final most paramount stages. So we’re still looking ahead to see if there’s any willingness to bring lawyers back into that important last step of our mandates, but it’s a positive step in the right direction.

Marlisse Silver-Sweeney:   Great. OK. So, there have been some positive changes to these minimum viable products or have been some updates.

Lisa Middlemiss:                 Yes.

Marlisse Silver-Sweeney:   That’s great that you mentioned the May letter from Brad Regehr. I actually had a nice quote about minimum viable products from him, and he says: a platform that does not integrate representatives and creates barriers to access to justice should not be considered a minimum viable product. So I’m glad to hear for the sake of your clients that there have been some upgrades to the technology that allows representatives to actually online file and do their jobs. But it does sound like there are some programs still where this is lacking.

Lisa Middlemiss:                 Absolutely. Yes. No. There are, and there’s still room for further progress. But it did help to have advocacy, I believe, in this by means of a letter from the CBA president Brad Regehr in support of this important issue for access to justice, and most appreciated by immigration lawyers across Canada, because it did, I believe, probe the ministries to get this updated product and technology available to us more rapidly than they may have. 

                                             However, in other regards I think that they don’t – that Immigration, Refugees and Citizenship Canada might always not – they do not always – they’ve set up some processes which do not recognize, really, the nature of the solicitor-client relationship; that, you know, we have a duty of service until the file is fulfilled and the mandate complete. So what has been happening recently is where a permanent residence application may have been filed, even by the representative online, let’s say in the old authorized representative portal, and that did allow for certain streams to be submitted online for years by representatives. It’s the newer system to capture old paper line businesses of IRCC which did not.

                                             But, for example, someone could have assisted a client with Canadian experience class, express entry application, maybe a very complex application that may have taken several years, even, for a couple of years, let’s say, for IRCC to finalize in the context of the pandemic. And at the very end of the process, the lawyer is cut out because the client may receive an email, or the representative could get the email but it specifically says that the representative cannot respond on behalf of the client, inviting the client to contact IRCC to set up their PR confirmation portal. 

                                             And so what it involves is the client, the individual client, must then email immigration Canada and say I’m in Canada, confirm they’re in Canada, upload their PR card photo through an online PR confirmation portal. And that PR confirmation portal, they’re not opening that up, we understand, to lawyers because, according to them, they have replicated the in-person act of signing the confirmation a permanent resident document with an officer; they’ve replicated that digitally through the PR confirmation portal. And, as such, they believe – IRCC believes – that there’s no place for the representative to get involved.

                                             However, because the PR confirmation portal is such a crucial step, some clients may miss the email, they may not upload their photo properly, they may not act on the messages that they get from Immigration Canada, and, potentially, they could jeopardize something in their application that had been carefully put together by their lawyer. And at the end of the process there could be a pitfall, and meanwhile the lawyer is sort of hampered because they were mandated to assist with the permanent residence application from inception to conclusion, and meanwhile it has not been concluded.

Marlisse Silver-Sweeney:   Right. 

Lisa Middlemiss:                 So, it puts us – yeah. It puts us in a bit of an ethical dilemma and, you know, in terms of even how to capture this in retainer agreements. Because we really are mandated in most cases to go right to the very end, until the person receives their confirmation of permanent resident document, whether electronically or physical, and lands in Canada, whether virtually landing – virtually landed if in Canada – or overseas by receiving the confirmation of permanent resident document, travelling to Canada and validating with an immigration officer upon their arrival in Canada.

Marlisse Silver-Sweeney:   Right. OK. So, yes, sounds like there’s still a lot of pitfalls. I don’t want to take up too much of your time. I know that you have a busy day, but I did want to ask you one final question.

Lisa Middlemiss:                 Yes.

Marlisse Silver-Sweeney:   And that – what suggestions do you have for immigration lawyers in the meantime who are looking to adequately represent their clients in the matters that you’ve set out today in the podcast? What are you able to do until the platforms and the technologies change?

Lisa Middlemiss:                 Right. I guess one thing is to really keep abreast of trends, because there are updates. There are changes like the positive development we saw with the PR representative portal for the old paper line businesses or paper line applications of Immigration Canada being expanded to representatives. So there are positive developments. So staying abreast of the news, doing everything you can by means of the technologies where we are permitted to act, because we know we need to be using those technologies and platforms so we understand how they work.

                                             Some lawyers may decide to sort of do more of the counselling type role, you know, with screen-share, and providing guidance to a client through those Zoom and MS Teams and other services. You know? Some lawyers are able to sort of manage that in their practices and that’s great. So some people have adapted in that sense. And then other lawyers are involved in advocacy and other initiatives, you know, social media et cetera to make known to Immigration Canada that we are waiting with baited breath for them to ensure that representatives, namely lawyers, would be able to have access to all of the technologies that are required to serve our clients and ensure that all those who have counsel have access to justice and are able to be properly represented because they’ve hired a lawyer to navigate a rather complex administrative process. And so they, you know, we need all the tools in order to do our job.

Marlisse Silver-Sweeney:   What you’re saying is that immigration lawyers can advocate to be able to be included in the process –

Lisa Middlemiss:                 Yes.

Marlisse Silver-Sweeney:   – to use technology as much as they can with adaptations like screen-sharing when and if possible, and to keep abreast of the changes because it seems like it’s a rapidly changing area.

Lisa Middlemiss:                 Absolutely. And I would encourage all immigration lawyers who are listening to get involved with their section, because undoubtedly there will be other working groups formed around the issue of exclusion of counsel until it’s no longer an issue anymore. And we would welcome, you know, fresh energies and ideas in terms of how to demonstrate that these minimal viable products are inadequate and unacceptable in terms of our representation.

Marlisse Silver-Sweeney:   Thanks again, Lisa, for breaking down this very complex issue for us.

Lisa Middlemiss:                 Oh. Thank you so much. 

Marlisse Silver-Sweeney:   Thanks again to Lisa for explaining what these new online platforms mean for both immigration lawyers and their clients. We’d love to hear what you think about the issues, or whether you’ve encountered a similar problem in a different area of law. Tweet to us @CBA_news, or you can reach me at my handle @MarlisseSS. We are on Spotify, Apple Podcast and Stitcher, wherever you listen to podcasts. Subscribe to receive notifications for new episodes and leave us a review. We also have a podcast in French called Juriste branché. Thanks for listening. Stay tuned for the next episode.