Why do Canadian immigration applicants turn to lawyers?


If you can pay a trained professional to help you file a tax return, and you can retain the services of a civil litigator to assist you in a commercial dispute, why then are you not given the same right to hire experienced counsel to assist you with your immigration application? Especially when the application in question involves a fundamental human right, such as the right to stay, live, work, or study in Canada?

Here is an example to help understand the gravity of the issues that face applicants for permanent residence in Canada. The example is fictional, but based on real stories of clients we have worked with.

Marko and his family came to Canada when he was transferred as a foreign worker to work as a supervisor in the agricultural sector. He is 40, has no formal education, and though he speaks English, he is not able to achieve a high score on a standardized language test. In short, Marko is not eligible to apply for permanent residence via Express Entry. But, the Government of Canada, in response to a very obvious and pressing need for the kind of labour Marko provides, announces a new program for people like him – people our labour market desperately needs, but who do not fit into any of our usual immigration programs – Temporary Residence to Permanent Residence.

The program is very welcome, but hastily planned and rolled out. Additionally, pursuant to IRCC’s rules, Marko is not allowed to have an authorized representative to file this application for him, meaning he has to navigate the new untested portal, known for glitches and problems on top of lack of appropriate guidance on how to use it, completely by himself. Marko tries his best to create his application and upload the documents relying on often unclear instructions he is not able to fully comprehend. He hopes that he has done everything correctly, as he is concerned about being fully transparent and compliant, but some of the instructions feel like they can be interpreted in different ways. Finally, having made his best effort, he submits his application. He waits for months to hear back. His family is eagerly anticipating the news. They have now been living in Canada for five years, and he has two new children who were born here.

In time, Marko receives news from Immigration, Refugees and Citizenship Canada (IRCC) and it is completely devastating. His application is refused as incomplete because he failed to include both the certified translation of the police clearance, and the police clearance itself. Also, he paid the wrong processing fee, having miscalculated a minor detail, providing $50 less than what was required. There is a cap on the length of time allowed for a work permit in Marko’s category, and after five years he is maxed out. He can not extend the permit, which means that he has no options left. Marko has to uproot his family after five years and leave Canada. His employer is left to struggle for qualified workers in a competitive labour market which is experiencing a severe shortage of people with Marko’s qualifications.

This is by no means a rare scenario. One small and completely unintentional error can be fatal to an individual’s ability to become a permanent resident in Canada. Something as inane as not uploading a document that was readily available, but the person just did not understand the (often confusing and contradictory) IRCC instructions, or selecting the wrong box on an application form, or miscalculating a fee by $50, are all real scenarios we have seen that threatened to ruin a future of a whole family, who in many cases invested everything in the hope of following the available pathways for permanent immigration to Canada. There are even worse examples whereby applicants are determined to have misrepresented material facts, often just due to their unintentional misreading of the guidelines. 

These immigration schemes exist in the first place for the very purpose of attracting and enticing people like Marko to come and invest their talent and skill into Canada. Just like Canadian Tax Law, Immigration Law is complicated. There are many programs, options, rules, regulations, acts, precedents, forms, documents, and various other hurdles. What’s worse, these are typically in a state of flux as they need to be sufficiently malleable in order to quickly respond to changing labour and demographic needs our country is experiencing.

It is good for an immigration policy to have this kind of flexibility, however, in practice this means that things are always changing, and staying on top of the complicated scheme is the work of specialized, educated, qualified, and licensed professionals. Given a choice to apply on their own or hire an immigration lawyer to prepare their file, many people would choose the latter, because they understand how much is at stake. Not giving people that choice is a very big disservice to both the applicants and the employers who are desperate to employ their talent. And when we consider the personal implications of a life changing decision to uproot a family and invest everything to pursue an available immigration program in Canada, only to be denied the right to retain expert assistance and ultimately fail on a banality, it is no less than a violation of human rights.  

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