For years, Canadian politicians have been grappling with the issue of how to end untrained and unregulated people from providing immigration advice, also known as “ghost consulting.” There appears to be a general consensus that tens of thousands of people each year are ripped off by ghost consultants.
The Government of Canada has launched numerous attempts at cracking down on ghost consultants, including, but not limited to, requiring licensing, creating the designated the Immigration Consultants of Canada Regulatory Council, and creating this video:
In June, 2010, the Conservative Government of Canada stepped up Canada’s efforts to regulate immigration consultants by introducing Bill C-35, also known as the Cracking Down on Crooked Consultants Act.
The Cracking Down on Crooked Consultants Act resulted in the following changes:
- Section 91 of the Immigration and Refugee Protection Act (“IRPA“) was amended so that no person can knowingly represent or advise a person for consideration – or offer to do so – in connection with an immigration proceeding unless the person is a member in good standing of a law society, or a member of a body designated by the government. Importantly, the prohibition does not extend to people who will not be paid for their services.
- The Government of Canada has a great deal of control over any body designated to regulate immigration consultants. Indeed, it may make regulations requiring the designated body to provide Citizenship and Immigration Canada (“CIC“) with any information for the purpose of assisting the government in evaluating whether the body governs its members in a manner that is in the public interest, is professional, and is ethical.
- Any unauthorized person who represents or advises a person with regard to an immigration matter will have committed an offense. This applies to all stages in connection with the immigration proceeding or application, including before the application has been made. There will be a five year limitation period to commence an action against such an individual. The offense is a summary offense with a maximum penalty of two-years imprisonment or a $50,000 fine.
- The government may make regulations requiring the disclosure of information relating to the professional or ethical conduct of a lawyer or regulated immigration consultant in connection with a proceeding or application under IRPA to a body that is responsible for governing or investigating that conduct or to a person who is responsible for regulating that conduct.
Ghosts or Industry?
Previously, many people assisted individuals with CIC applications who would not have considered themselves ghost consultants. These included travel agents who completed and submitted visa applications to CIC visa offices on behalf of their clients, educational agents and international student advisers at universities and colleges who assisted students with applications for study permits; and employment agents who assisted the foreign workers they recruited with visa and work permit applications. When Bill C-35 came into force, some of these stakeholders were uncertain as to whether their activities were now illegal. I certainly did not believe, for example, that Bill C-35 was going to be interpreted in a way such that it would be illegal for international student advisers who are not licensed consultants to assist students with Post-Graduate Work Permit applications, for example.
However, CIC has interpreted Bill C-35 as prohibiting all of the above stakeholders from providing immigration advice unless they are licensed. A breakdown of what they can and cannot do is as follows:
|Direct someone to the CIC website to find information on immigration programs, application forms, and authorized immigration representatives.||Explain and/or advise on someone’s immigration options.|
|Provide services such as translation, travel arrangements, and courier.||Guide a client on how to select the best immigration stream.|
|Advise international students on how to select their courses or register.||Complete and submit immigration forms on a client’s behalf.|
|Conduct a job interview.||Communicate with CIC and the Canada Border Services Agency on a client’s behalf (except for the direct translation of a client’s written or spoken submissions).|
|Represent a client in an immigration application or proceeding.|
|Represent a client in an Arranged Employment Opinion or Labour Market Opinion application (unless they are the employer).|
|Advertise that they can provide immigration advice for consideration.|
As of November 2015, since the coming into force of the Cracking Down of Crooked Consultants Act, 412 cases of “ghost consulting” have been reported to the Canada Border Services Agency (“CBSA”). CBSA opened 71 of those cases, and 53 are currently being investigated. Charges have been laid in 12 cases, with 10 currently before the courts. There has been one conviction.