The org argues the immigration system’s backlog could grow if applicants lack right to legal advice
To help reduce backlogs for immigration and refugee matters, a legal organization has asked a federal court to declare that applicants have a right to counsel, at their own expense, in all immigration and refugee-related matters handled by three federal departments.
The challenge, filed by the Canadian Immigration Lawyers Association, is the first of its kind, according to Sujit Choudhry of Circle Barristers, one of the lawyers representing the organization.
“There have been a number of previous cases where individuals who were denied the right to counsel sought legal recognition of the right to counsel in relation to them in a specific context,” Choudhry told Canadian Lawyer on Monday. However, Choudhry said there has never been “such a comprehensive challenge” to the current framework on immigration and refugee applicants’ right to legal representation.
CILA filed an application record with the Federal Court of Canada in early September, after first asking the court for permission in May to file its challenge against the Ministers of Immigration, Refugees and Citizenship Canada; Public Safety and Emergency Preparedness; and Employment and Social Development Canada. According to Maureen Silcoff, a partner at Silcoff Shacter who also represents CILA in the case, the federal government has indicated that it plans to ask the court to strike the proceedings.
In its filings, CILA noted that s. 167(1) of the Immigration and Refugee Protection Act and s. 10(b) of the Charter of Rights and Freedoms give applicants before the three federal departments the right to counsel in specific contexts, such as when they appear before the Immigration and Refugee Board or are detained. The right to counsel does not apply in other circumstances, including applications for temporary residence visas and permanent residence, exams and interviews for spousal sponsorship, labour market impact assessments, or refugee eligibility.
The right to counsel is not guaranteed across “large and significant components of the immigration and refugee system,” CILA argued.
The organization noted that while there is no legal prohibition on applicants retaining counsel for their cases, in many circumstances, the three federal departments also lack an obligation to recognize applicants’ counsel and interact with them. CILA argued that while certain IRCC and ESDC application forms purport to recognize the right to counsel, the two departments often refuse to deal with applicants’ counsel or communicate directly with the applicants themselves.
Silcoff, who has practiced refugee and immigration law for nearly 40 years, said that IRCC allows counsel to be present in spousal sponsorship interviews, for example. In practice, however, the department bars those lawyers from interrupting or participating in their clients’ interviews.
Choudhry, meanwhile, points to ESDC’s practice of frequently communicating directly with workers seeking temporary, employment-based residence instead of talking to the employers and lawyers who filed the applications.
In both examples, allowing lawyers to actively represent their clients can help make proceedings more efficient.
“IRCC is extremely backlogged,” Silcoff says. “People wait years and years for fairly routine applications to be processed, and then if things don’t go well, people end up either at the Immigration and Refugee Board if there is an appeal, or more likely, at the federal court.
“Having the right to counsel recognized would make the system more efficient and would benefit everyone involved,” she argued.
“The immigration refugee system has become Byzantine in its complexity,” Choudhry says. “The complexity arises not just from the Immigration and Refugee Protection Act and the Immigration and Refugee Protection regulations, but an enormous body of jurisprudence interpreting that statute and [those] regulation[s], and then layered on top of those a huge apparatus of ministerial instructions, especially in relation to economic immigrants and also temporary public policies.”
He argued the immigration and refugee system “is vastly more complicated than it was a generation ago and… the barriers to accessing the system are even greater for people who have barriers of language, education, culture, mental health, or trauma.”
In a statement on Monday, IRCC spokesperson Danielle Hickey said the department is reviewing the application. Hickey added that IRCC cannot comment on the matter because it is before the courts.
ESDC and Public Safety and Emergency Preparedness did not respond to a request for comment.
