Catherine A. Sas
( Disponible en anglais seulement )
Avis RH : Qui peut « représenter » des clients en matière d'immigration ?
HR Alert: Who Can “Represent” Immigration Clients
On June 30, 2011, amendments to the Immigration Refugee Protection Act (IRPA) were passed that dramatically changed the Canadian immigration landscape in terms of who can assist individuals in the preparation of their immigration applications for remuneration. Bill C-35 came into force which specifies that only lawyers licensed by a law society of Canada or consultants licensed by the Immigration Consultants of Canada Regulatory Council (ICCRC) are authorized to assist individuals in the preparation of their immigration applications for a fee.
Prior to Bill C-35, it was common place in Canada for many parties to assist individuals in the immigration process:
- Schools with international student divisions frequently assisted students in the extension of their study permits;
- Nanny agencies became proficient in assisting low paid nannies with their on-going immigration paper work;
- Recruiters would assist workers with work permit applications.
- Adoption agencies assisting couples in the often expensive adoption process would assist their clients;
- Human resources personnel in companies would facilitate immigration paperwork for their companies’ employees.
In addition, many unscrupulous consultants earned their living from assisting individuals both inside of Canada and particularly overseas in the preparation of immigration documentation. Frequent stories arose in the media of individuals being taken advantage of by paid consultants who were hired by unsuspecting individuals to facilitate their immigration paperwork. With a view to maintaining the integrity of the immigration system and understanding that paid representatives are necessarily a part of the immigration process, the Minster of Immigration introduced legislation entitled the “Cracking Down On Crooked Consultants” Act. The catchy title drew a lot of attention and showed that the government was serious about protecting individuals who were seeking to access Canada’s immigration system with the help of hired professionals.
The effect of Bill-C35 is dramatic in that only licensed lawyers or immigration consultants are lawfully permitted to assist in the preparation of immigration documentation for a fee. Individual applicants are required to disclose in their immigration applications whether they have used the services of a paid representative in the preparation of any aspect of their immigration application, including preliminary advice. Furthermore, the statutory changes also include the creation of a specific offence with penalties for breaching IRPA which provides for maximum fines of $100,000 and/or imprisonment for up to two years for conviction by indictment and fines of $20,000 and/or imprisonment for up to six months on summary conviction. Clearly it was the government’s intention to get serious in their efforts to protect individuals who are hiring the services of immigration professionals.
In addition to statutory legislation, the Canadian immigration process is guided by Immigration Manuals and Operational Bulletins. Shortly after the implementation of the legislation the Immigration Manuals were modified to reflect these new regulatory changes. The Inland Processing Manual-Chapter 9 (IP9) entitled “Use of Representatives,” was updated on Dec 13, 2011 to specify the individuals who may represent or advise a client for “consideration” and to clarify that authorized representatives must be members in good standing with the Canadian provincial/territory law society, Chambre des notaires du Québec, or the Immigration Consultants of Canada Regulatory Council (ICCRC). The regulations also specify that a person receiving “consideration”, such as a fee, who is not an authorized representative may not provide any immigration advice or representation at any stage of an application or proceeding. IP9 goes on to discuss how the various government departments working under IRPA are viewing these regulatory changes:
“CIC, the IRB and the CBSA are interpreting the act and regulations to mean that if immigration representation or advice is provided at any stage of a proceeding or an application, it is irrelevant when the applicant has compensated or will compensate their representative. The fact is that the representative is being compensated. Compensation includes payments or other forms of consideration such as goods or services, whether provided by the applicant or on behalf of the applicant.”
The Manual goes on to discuss the traditional stakeholders who may have assisted in the preparation of immigration applications in the past and specifically mentions the following:
a) Educational stakeholders in Canada
b) Educational agents abroad
c) Employment agencies and recruiters
d) Adoption agencies
e) Live-in care givers agents
Furthermore an internal memo from an immigration official specifically clarifies the approach of these departments with respects to HR professionals:
HR professionals, which may include employment agents or recruiters, are known to assist in various types of employments and immigration related matters. Certain functions which might normally be handled by representatives are permitted for individuals who are not authorized representatives. In general, if a person is providing services which do not involve advising or representing someone on an immigration matter then he or she is not required to be an authorized immigration representative. However, any person providing immigration advice or representation to a client for consideration must be an authorized representative to do so.
Section 5.4 of the IP 9 manual provides guidance on what stakeholders, such as HR professionals, may or may not do. With the coming into force of Bill C-35, many stakeholders are now required to be members of a prescribed regulatory body if they wish to provide immigration services to their clients, when they were not obliged to do so in the past. At the same time, it is recognized that, as part of the hiring process, some functions remain the responsibility of the employer. As such, HR professionals, who are not authorized representatives, are only permitted to engage in certain functions, such as:
- Conducting a job interview
- Making offers of employment
- Directing someone to the CIC website to find information on immigration programs or to find immigration application forms
- Providing translation, courier or medical services
- Making travel arrangements
- Directing someone to an authorized immigration representative
However, HR professionals, who are not an authorized representative, may not provide immigration advice or represent a client in connection with an application or proceeding under the Immigration and Refugee Protection Act. Examples of advice or representation in this context would include:
- Explaining and/or providing advice on someone’s immigration options
- Providing guidance to a client on how to select the best immigration stream
- Completing and submitting immigration forms on a clients behalf
- Communication with CIC and the CBSA on a client’s behalf
- Representing a client in an immigration application or proceeding
- Representing a client in an Arranged Employment Opinion or Labour Market Opinion
The thrust of the regulatory changes with respect to paid immigration representatives is whether you are receiving consideration for your services in the preparation of these documents. The compensation does not have to be paid directly by the individual applicant. The Manual provisions are clearly interpreting payment or compensation to cover any form of payment or fee such as the fees obtained by educational facilities, adoption agencies, recruitment agencies, and HR personnel who are paid for their services by their employer. The effect of Bill-C35 is to dramatically change the services which many in-house HR professionals have traditionally provided for their corporate employees in the past.