Immigration Consultants and the IRB Lois D. Figg, Assistant Deputy Chairperson, Refugee Protection Division 1 November 2007 IRB/CISR 528 (02/07)

2 LSUC’s Paralegal Rules of Conduct  The IRB is currently assessing the impact of these rules on who may appear before the Board

3 The IRB’s Experience with the Regulation of Consultants  IRPA (s. 167(1)) stipulates that any person who is the subject of Board proceedings may, at their own expense, be represented by a barrister or solicitor or other counsel  IRPA (s.91) gives the federal government the authority to regulate who may represent a person appearing before the Board  In 2001, the Supreme Court of Canada ruled in Mangat:  Federal jurisdiction includes the power to establish a tribunal like the IRB and determine its powers and procedures, including who may appear before it

4 (Cont.…)  Canadian Society of Immigration Consultants (CSIC) created in 2003 by industry stakeholders  The IRP Regulations were amended in 2004 such that only “authorized representatives” may, for a fee, represent, advise or consult with a person who is the subject of a proceeding before the Board (Reg 13.1(1)):  “authorized representative” means a member in good standing of a bar of a province, the Chambre des notaires du Quebec or the Canadian Society of Immigration Consultants…(Reg 2)  An exception is made for students-at-law if they are acting under the supervision of a member of a Bar (Reg 13.1(3))

5 Transitional provisions  A counsel who is not an “authorized representative” may, for a period of four years, continue to represent, consult or advise a person for a fee, if  The counsel was providing any of those services to the subject of the proceedings on the coming into force of the regulations and  The proceeding is the same proceeding that was in progress on the coming into force of the regulations

6 Transitional provisions (cont.)  Transition provisions expire April 10, 2008  The IRB is in the process of studying old files to verify counsel, and whether they are allowed to continue to represent  The IAD is most affected by this as proceedings may involve a stay and tend to be before the Board for a longer period of time

7 Unpaid Representatives  Family, friends, international and religious organizations and NGOs who don’t charge fees are allowed to continue to represent persons before the IRB without being affiliated with the CSIC or a law society  The Government of Canada recognizes that these groups play an important role for persons with limited resources  Unpaid representatives must complete the IRB’s Notice of Representation Without a Fee form, which has the same effect as a statutory declaration

8 The IRB Registry’s Obligations  The IRB will only conduct business with immigration consultants who are CSIC members in good standing  Counsel must provide the IRB with their membership ID number and the name of the organization to which they belong  CSIC lists are posted on their Web site  The IRB Registry will make every effort to validate their standing before any proceeding begins

9 The IRB Decision-maker’s Obligations  Where counsel has not provided their information and the Registry is unable to get the counsel’s information before the outset of a proceeding, the member addresses the question of whether or not counsel is authorized  If the member determines that counsel is not an authorized representative and may not appear before the IRB, the person who is the subject of the proceeding is treated by the IRB as unrepresented

10 Contact Information Requirements  Counsel must complete a Counsel Contact Information form  The information is entered in the IRB’s case management system, allowing counsel to provide the information to the Board only once and not every time they represent a client

11 Notice of Representation Without a Fee  This statutory declaration must be completed by the subject of the proceeding before the IRB  The individual must assert that his/her counsel is not charging a fee  An interpreter's declaration may be required  Counsel must sign the document

12 Impact of the Regulatory Change on the Board  CSIC establishes membership standards, a code of conduct, complaint and discipline mechanisms, and training  The Regulations are intended to prevent unqualified and unethical immigration consultants from representing clients  Immigration consultants who appear before the IRB now meet a higher standard concerning knowledge of the law, language skills and professional ability  The Regulations, however, do not have recourse action against those who declare they do not receive a fee, unlike a law society which may move against an individual practicing law without a license

13 Impact of the Regulatory Change on the Board (cont.)  While the IRB has the right to control its own processes, it is not an investigative body. It can only rely on publicly available information to ensure compliance. There are limits to what the IRB can do to protect the system from those who are not acting in good faith  The IRB is in the final draft stages of a policy that addresses the mechanism for handling complaints about unauthorized, paid representatives

14 Impact of the Regulatory Change on the Board (cont.)  The IRB Registry spends hours determining the status of counsel before a hearing begins  There has been an increase in the number of counsel claiming that they are not receiving a fee for representing the individual