Addressing Ghost Consultants

Meurrens LawImmigration Consultants

For years, Canadian politicians have been grappling with the issue of how to end untrained and unregulated people from providing immigration advice, a practice commonly known as “ghost consulting.”  There appears to be a general consensus that tens of thousands of people each year are scammed by ghost consultants.  As well, even though they are not licensed, ghost consultants harm the reputation of the immigration consulting profession broadly.

The Government of Canada has launched numerous attempts at cracking down on ghost consultants, including, requiring licensing, creating the designated the Immigration Consultants of Canada Regulatory Council, and creating videos.

As well, in June, 2010, the previous 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.

As a result of the Bill C-35, section 91 of Canada’s Immigration and Refugee Protection Act (“IRPA“) now provides 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, a paralegal in certain jurisdictions or a licensed immigration consultant.

Any unauthorized person who represents or advises a person with regard to an immigration matter will have committed an offence. This prohibition applies to all stages in connection with the immigration proceeding or application, including before the application has been made. There is a five year limitation period to commence an action against such an individual.  The offence is a summary offence with a maximum penalty of two-years imprisonment or a $50,000 fine.

As well, Immigration, Refugees and Citizenship Canada can return for incompleteness an application that was submitted by an individual who received the paid assistance of a ghost consultant and did not disclose it.

Some examples of situations of people who have faced serious consequences for ghost consulting include an Indian international student in Canada who was banned from the country after the Canada Border Services Agency discovered that he had been offering to prepare study applications for students for a fee to a ghost consultant in Richmond was sentenced to seven years for being the mastermind of a massive immigration scandal.

However, resource and evidentiary issues have for the most part meant that ghost consultants go largely unpunished.  As of November 2015, since the coming into force of the Cracking Down of Crooked Consultants Act, 412 cases of “ghost consulting” had been reported to the Canada Border Services Agency (“CBSA“).  CBSA had opened 71 of those cases, and 53 were being investigated.  Charges were laid in 12 cases.  There has been one conviction.

One issue is that applicants who retained ghost consultants who advised them to commit misrepresentation or to even falsify the contents of their application without the applicants’ knowledge do not benefit from providing evidence to immigration officials.  For this reason, in 2017 the House of Commons Standing Committee on Citizenship and Immigration recommend to the Government of Canada:

That, when Immigration, Refugees and Citizenship Canada suspects that an application has been prepared by someone other than the applicant, who has been paid for their services and who is not an authorized representative (“ghost consultant”), IRCC should continue to process the application, advise the applicant of their suspicion, and inform the applicant how to find a properly licensed authorized representative. IRCC should then also allow the applicant the opportunity to review the information provided by the “ghost consultant” and, if in good faith, the applicant or someone on the applicant’s behalf has submitted an application which contains any error or misrepresentation not authorized or previously known to the applicant, the applicant should be permitted to correct the errors or misrepresentations made by the “ghost consultant”.

As of writing the government had not yet enacted the Standing Committee on Citizenship and Immigration’s recommendation, perhaps for the reason that it arguably could reward people who hire ghost consultants by giving them a second kick at the can, so to speak.

Am I a Ghost Consultant?

The prohibition on providing immigration advice does not extend to people who will not be paid for their services.

Previously, many people assisted individuals with immigration applications who would not have considered themselves ghost consultants.  These included travel agents who completed and submitted visa applications to IRCC visa offices on behalf of their clients, educational agents, 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.

It is now clear that IRCC has interpreted Bill C-35 as prohibiting all of the above stakeholders from providing immigration advice unless they are licensed.  International student advisors who provide immigration advice to students can only do so if they are Regulated International Immigration Student Advisors. Most companies now either have licensed consultants or lawyers working for them either as employees or on retainer.

The one exception appears to be that travel agents are allowed to complete Electronic Travel Authorizations on behalf of their clients.

For those who are unsure whether what they are doing constitutes providing immigration advice that could contravene Canadian immigration legislation, the following table should be useful.

Can Do

Cannot Do

Direct someone to the IRCC 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 program.
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 IRCC and the Canada Border Services Agency on a client’s behalf (except for the direct translation of a client’s written or spoken submissions).
 Review someone’s resume. Represent a client in an immigration application or proceeding.
Represent a company in a Labour Market Impact Assessment application (unless of course, they are am employee of the employer).
Advertise that they can provide immigration advice for consideration.