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The following commentary is intended to provide insight into some of the issues involved in retaining legal counsel in the Canadian Citizenship & Immigration field.

  1. I understand that one can apply for Canadian permanent residence without hiring a lawyer. Is this true?

    There is no rule of thumb, written or unwritten, which prescribes that one must engage counsel to successfully apply for Canadian permanent residence. Many individuals do apply and succeed on their own, while many who apply on their own incur added delays or even fail.

    The process of applying for Canadian permanent residence often arises from a well-planned decision to improve one's livelihood and to provide the applicant with options which are potentially life-long for the accompanying family members involved. The process, in addition to being costly and time consuming, depends, in part, on the subjective assessment of third party person(s), who are given the qualified discretion to review and "rate" a number of subjective factors submitted by an applicant.

    The process of assessment requires a thorough understanding of laws and regulations which are regularly being revised, and policies and procedures which are modified frequently to meet the objectives of the current Government of the day. The decision-making process which flows from the exercise of such qualified discretion also requires the consideration of a number of issues, which are the subject of volumes of Government of Canada processing procedure manuals and government operations memorandums, by immigration officers. Indeed, a number of decisions rendered by visa officers are often challenged by effective counsel and become the subject of volumes of reported case law.

    While it is the Department's preference to propagate the myth that one can apply without representation, the reality is that the rights of applicants are often preserved, and even enhanced, when represented by effective legal counsel. Admittedly, even the Government of Canada acknowledges in its own writings that "When lawyers and consultants present their clients' cases in a clear and concise manner, processing is expedited and simplified" - (Canadian Embassy, Moscow, "Guidelines For Representatives" - October 28, 1996).

    As well, recent studies now provide empirical evidence which confirm higher approval rates of applications represented by immigration professionals.

  2. When it comes to my future settlement plans, I believe in the saying "penny wise is pound foolish"; but what is the difference between hiring a lawyer and hiring a licensed consultant?

    A consultant is any individual who is called on to render advice. A licensed lawyer, (attorney, barrister, solicitor) is an individual lawfully permitted to perform legal functions such as draft legal documents, interpret and apply legal statutes, provide legal advice and represent persons before courts, administrative agencies, tribunals, etc. The practice of law is regulated by each of the provinces. Admission to practice law in a particular province entails the completion of a Bachelor of Law degree at a recognized university, followed by the successful completion of law admission examinations and the completion of a period of training under the guidance of a practicing lawyer.

    Once admitted to practice law, the conduct of lawyers is strictly regulated by the provincial Professional Order of Lawyers, which imposes a complex series of rules governing the dealings of member lawyers. These complex rules cover a wide range of issues which, inter alia, include: the requirement to maintain separate bank accounts representing counsel fees paid by clients (Trust Accounts), the relations between lawyer and client, the performing of mandates and the obligations of lawyers towards their clients. Non adherence to the rules of conduct is sanction able and can result, depending on the nature of the infraction, in the temporary suspension or permanent removal of the lawyer's license.

    Current rules in the Canadian immigration industry now require that all fee charging representatives, used at any stage of an immigration application or proceeding be a member in good standing of either a provincial or territorial law society, the Chambre des notaries du Québec or the Immigration Consultants of Canada Regulatory Council (ICCRC) created in June 2011, replacing the Canadian Society of Immigration Consultants (CSIC), as the self-regulating body for immigration consultants.

    The admission process to become a licensed immigration consultant in Canada does not require the rigorous process or the education to become a member of a provincial order of lawyers. Once licensed, immigration consultants are not closely scrutinized to the same standards as lawyers.

    While there have been some examples of lawyers who have been involved in various irregularities, the public at large and/or lessoned persons may seek direct and expedient recourse against such offending lawyers by laying formal complaints with the governing provincial Professional Order of Lawyers. In some cases, monetary compensation can be provided by the provincial Professional Order of Lawyers from a fund specifically established for such purpose.

    All factors considered, it is more advantageous to engage the services of a trained and experienced immigration lawyer, rather than a consultant. This is especially the case at the present juncture, where the Canadian citizenship and immigration field is undergoing significant change in governing legislation, regulations and government policy which all things considered provides the public with more benefits from the insight of a trained Canadian immigration lawyer.

  3. Some consultants try to reassure me that they currently have ties to various government officials in the Department of Citizenship & Immigration, or at a particular visa office abroad. In my home country, this can be important. What is the truth behind the statement, with respect to Canada?

    In Canada, this is furthest from the truth. Canada is a parliamentary democracy where the Government, the Legislature and the Judiciary act separately and independently from each other, and where ministers are collectively and individually responsible to Parliament. In the field of Citizenship & Immigration law, as in other areas of Administrative and Public law, the Legislature delegates the power to implement and apply the various laws and regulations which govern the people of Canada, to the Government. In many cases, the application of law entails the exercise of discretion. It is a fundamental principle of law that decisions rendered by public officials must be carried out in a scrupulously impartial fashion and devoid of any outside and distorting influencing factors. Indeed, it is a sanction able offence in Canada for a) persons in a public position to hold out to the public that decisions are made in a manner which is other than impartial and b) for private individuals to claim that they can influence the use of discretion by a public official.

    In fact, one well-known former immigration officer was the object of a National Headquarters memo, directing all visa offices abroad to follow standard channels of communication when dealing with former immigration officers. Prospective applicants are cautioned to contemplate against formalizing any mandate with an individual who, in any way, lays claim to providing an advantage on the basis of current or former ties to government.

  4. Why should I hire a lawyer to represent me in my future settlement plans in Canada?

    Canadian immigration laws and its attendant regulations provide for the extensive use of discretionary authority by immigration officers, which must be exercised in precise and well- defined limits. The effective assessment of a visa application and the timely issuance of visas often depend, in part, on the clear and concise written submissions addressing the various issues at hand.

    For example, under the skilled worker category, are a number of occupations which are open to prospective immigrants to Canada, without the requirement to obtain an approved offer of employment. A positive selection decision entails the approval of an applicants' prior employment experience and the crediting of the appropriate number of units of assessment under the factor of employment experience, by the visa officer. Effective submissions often serve to ensure that the issues which must be taken into consideration are effectively highlighted, thereby enabling the allocation of a maximum number of units for a particular factor.

    Under the business provisions an applicant must provide evidence of active experience in directing, controlling or managing a commercial enterprise. Managing a commercial enterprise takes on different meaning by individual visa officers. Whereas one officer may conclude that experience in managing a large department in a para government organization may qualify, another officer may decide otherwise. Competent and experienced counsel in the field will exercise all appropriate means to ensure that the applicant's credentials are effectively presented.

    The Canadian citizenship and immigration field is currently undergoing significant change from a legislative, procedural and a policy perspective. Many visa offices have their own post-specific processing requirements, which are not always transparent to an applicant. The favourable outcome of an application often depends on the recognition of these non- transparent factors and the effective and timely submission of an application with the post-specific supporting documentation which address the issues at hand.

    In practical terms, experienced and committed legal counsel in the Canadian citizenship & immigration field will effectively prepare submissions which satisfactorily address the issues where discretion is a factor. During the processing of an application, experienced counsel will be able to effectively present to the visa office instances of irregularities in the assessment process, which most often will be corrected, thus avoiding the need to avail the use of the judicial system.

    Most important, however, is that the decision to relocate from one's country of origin is often highly consequential for the family in question. The retaining of legal counsel, in addition to ensuring that the benefits of this decision will materialize into the desired result for the applicant and can likewise provide for useful guidance in the face of the ongoing issues of concern which come into play once the applicant has become a permanent resident.

  5. How do I go about choosing an effective lawyer to represent me in my future settlement plans in Canada?

    Most of the large law firms in Canada do not provide counsel in the field of citizenship and immigration law. Consequently, this area of practice generally comprises of professionals who practice independently. When choosing an effective immigration lawyer a prospective applicant is often required to rely on self-directed research efforts. These efforts may include the following:

    • Referrals - This is often the most reliable measure. It goes without saying that well-served individuals will refer friends and relatives.

    • Advertising - Some lawyers can be found through conventional advertising. However, selecting an immigration lawyer through an advertisement does not ensure that the professional is effective. Additional complementary measures outlined below should be considered.

    • Internet - The Internet has become a valuable reference tool for information in the area of Canadian citizenship & immigration. A number of lawyers have developed Internet World Wide Web sites as a means of promoting their services. When viewing a particular Internet Web site, attention should be given to those sites which offer substantive, value-added information. This is opposed to those web sites which simply adapt a "here we are approach" or, offer either minimal information or information, which is a mere replication of that which is available from standard government sites. Effective web sites will readily convey a profound level of expertise on the part of the writer to the reader by offering detailed insight and analysis into the more controversial and discretionary issues in the field.

      As well, some sites will enable the reader to receive an on-line assessment of qualifications, which can provide the prospective applicant with preliminary insight into the chances for success of an impending filing.

    • Publications - Some of the more accomplished and experienced immigration attorneys are published authors in industry publications featuring ongoing developments in the field.

      When selecting an immigration lawyer, request copies of a sample of such writings which the lawyer may have written. Once again, differentiate between writings which appear on web sites or paid advertising forums from writings which offer value added information and appear in independent, reputed publications.

    • Canadian Bar Association - The Canadian Bar Association is a nation-wide entity comprised of most of the lawyers from each of the provinces and two territories in Canada. The CBA is organized at the national level and at each of the provincial levels according to a number of disciplines of law. In the Canadian immigration field, the CBA has an immigration section represented by members within each of the provinces. Some of the more accomplished immigration lawyers have served as executive members of the Canadian Bar Association, Immigration Section and actively participate in the exchange of ideas with the Department of Citizenship &Immigration. Although this factor does not, in itself, infer effectiveness, it can provide an indication that the immigration lawyer in question is abreast of the current policies and issues of concern.

    • Provincial Professional Order of Lawyers - All lawyers must be registered with a Provincial Professional Order of Lawyers in the province of membership. Registration in itself, however, provides no measure of the expertise of a particular immigration lawyer.

    • Direct Communication - In many cases thorough research, combined with a direct telephone conversation, will provide some indication of the background of the individual being retained. Direct communication also provides some indication on the level of service, commitment and insight that may be forthcoming. Request that the lawyer provide clear insight into the process at hand and compare with other opinions of this nature.

  6. Does it matter from which Province in Canada the prospective immigration lawyer is situated?

    Current rules in the Canadian immigration industry now require that all fee charging representatives, used at any stage of an immigration application or proceeding be a member in good standing of either a provincial or territorial law society, the Chambre des notaries du Québec or the Immigration Consultants of Canada Regulatory Council (ICCRC) created in June 2011, replacing the Canadian Society of Immigration Consultants (CSIC), as the self-regulating body for immigration consultants.

    Although there is some shared jurisdiction on the part of the provinces, the practice of Canadian Citizenship & Immigration law is predominantly a federal matter. There is no distinction made between the legal rights conferred upon a perspective applicant and the location of the lawyer engaged by the applicant.

    However, if you intend to hire the services of a professional to represent your interests in Quebec immigration matters, only Attorneys who are members in good standing of the Quebec Law Society (the Barreau du Québec), or Consultants who are licensed by the Quebec Ministry of Immigration and Cultural Communities are permitted to act as you representative under Quebec law.

  7. What factors should I consider in selecting an effective immigration lawyer?

    The following are some considerations:

    • Specialization - The reality is that the landscape in this area of practice is currently undergoing continuous modification. A practitioner who is exclusively practicing in this area is more likely to be aware of the many issues at hand, than one who is a claimed master of many specialties.

    • Experience - Some immigration lawyers have been around for many years. While this factor, in itself, does not infer acquired expertise, experience can be one of many important factors in selecting an effective immigration lawyer.

    • Contract of engagement - This is an important element required by all provincial Professional Order of Lawyers. Prospective applicants should request from the lawyer, a detailed written contract outlining the duties and responsibilities of the contracting parties.

    • Money back guarantee - The more reputable practitioners have developed a level of expertise which enables them to stand behind the service they are offering and offer a full refund of the fees paid to the lawyer, where the visa application process is unsuccessful.

    • Funds In Trust - Applicants should ensure that fees are made payable to the lawyer or Law Firm "In Trust". This is an important condition prescribed by many of the provincial Professional Order of Lawyers. The segregating of client fees in a separate trust account monitored by the Professional Order of Lawyers provides a good indication that the immigration lawyer in question adheres to current rules of conduct. Prospective applicants should be cautious about making any payment to a corporate entity, regardless of whether the recipient is a lawyer.

    • Initial Assessments - Effective counsel, in addition to offering such service, will thoroughly outline the entire application process, in writing.

    • References - Effective and reputable counsel should be willing to provide current references of satisfied individuals who can objectively assess the past services rendered.

    • Internet - Some of the more reliable immigration lawyers in the field maintain an active value added World Wide Web site.

    • Internet - Some of the more reliable immigration lawyers in the field participate actively in providing advice to readers of blogs, newsgroups, public bulletin boards, etc. Distinction should be made however as to the type of participation offered. Some practitioners unsuccessfully attempt to convey expertise by engaging the services of technical staff to address on a volume basis, straightforward, general issues already appearing on the Internet.

    • Writings, Publications - Some of the more effective immigration lawyers actively participate in writing and publishing articles and commentaries in Industry publications on topics of current interest which serve to add clarifications and insight into the field.

      While it cannot be stated that adherence to the foregoing suggestions will ensure the engaging of effective legal counsel, prospective applicants who intend to formalize a mandate with legal counsel should be mindful of the various issues at hand. A thorough review of the important factors will likely however, minimize the incidence of disappointment.


"Let no man weakly conceive that just laws, and true policy, have any antipathy; for they are like the spirits and sinews, that one moves with the other."


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