IRCC Minister Transition Binder 2021: Immigration and Citizenship Consultants - Implementation of a New Governance Regime

Background

Newcomers and applicants often rely on the advice and expertise of immigration and citizenship consultants to assist and represent them in navigating complex application processes, but can become the victims of unscrupulous consultants or other fraudulent actors.

Who are authorized immigration and citizenship consultants?

• Immigration and citizenship consultants who are members of the Immigration Consultants of Canada Regulatory Council (ICCRC – soon to be the College of Immigration and Citizenship Consultants) are authorized to provide, for a fee or other consideration, advice and representation under S.91 of the Immigration and Refugee Protection Act (IRPA) and S.21.1 of the Citizenship Act.
• Consultants are not the only individuals permitted to provide immigration and citizenship advice for consideration. Lawyers, notaries (in Quebec) and paralegals (in Ontario) are also authorized to provide immigration advice and representation under s. 91 of IRPA and S.21.1 of the Citizenship Act.

The objective

• Of S.91 of IRPA and S. 21.1 of the Citizenship Act is to ensure that those providing advice or representation have the necessary training and knowledge to assist clients. The ultimate goal is to ensure that clients receive ethical and competent advice.
• This places important limits on which individuals and organizations are authorized to provide these services.

Background – continued

• While consultants provide important services to newcomers and applicants, regulation of consultants has been a recurrent issue.
• Since 2004, two bodies have regulated consultants, with neither regulator having authorities enabled by statute to effectively regulate the profession (contrary to the norm for professional self-regulation in Canada such as doctors, lawyers, and plumbers).

• The current regulator, the Immigration Consultants of Canada Regulatory Council (ICCRC), operates under the Canada Not-for-Profit Corporations Act, which is not designed for professional self-regulation.

Key Challenges

The professionalism of consultants and the effectiveness of their regulator have been frequently called into question and studied in depth over the past decades. Shortcomings of the current regime as identified by the Standing Committee on Citizenship and Immigration in 2017 include:

Majority Consultant Directors

• Members (i.e. consultants) elect a majority of directors, and vote on bylaws, favouring the interests of consultants rather than the public.

Limited Authorities

• The regulator has limited authorities over its members (e.g. it cannot enter premises of a consultant for inspections).

Lack of Oversight

• Government oversight is very limited.

Current Status

To address the identified weaknesses, a new governance regime is being introduced:

New investments of $48.3M over four years and $9.84M ongoing to:

• Improve regulation and government oversight of immigration consultants.
• Strengthen government investigations and enforcement.
• Support public awareness and outreach activities to protect newcomers and applicants against fraudulent consultants.

The College of Immigration and Citizenship Consultants Act (College Act) received Royal Assent in June 2019 as part of the Budget Implementation Act and came into force in December 2020. The Act:

• Creates a stronger statutory regulator, the College of Immigration and Citizenship Consultants, that will have new tools and authorities for greater oversight over its licensees and new powers to deter the activities of unlicensed consultants operating outside the regime.
• Provides for additional levers for ministerial oversight.
• No Government of Canada funding will go to the College itself (the College will be self-funded by consultant membership fees).

New oversight, compliance, and enforcement measures will better protect clients from unethical consultants and help to maintain the integrity of Canada’s immigration system.

New Governance Regime

Governance

New College with tools and mandate to regulate in the public interest

• Federal statute with accountability to the public / Parliament
• Maintain self-regulation: members of the College will elect four of the nine members of the Board of the College but no longer vote on bylaws
• Robust government oversight: Minister to appoint five of the nine members of the College Board as Public Interest Directors
• New Code of Professional Conduct will enforce high professional standards, to be approved by the Minister
• New College Regulations (30+ subjects) to be developed by IRCC to support effective functioning of the College

Compliance / Enforcement

More dishonest consultants are punished and unscrupulous behaviour is deterred

• Increased resources for CBSA for criminal investigations
• Increased criminal penalties
• New system of administrative penalties / consequences will strengthen compliance to IRPA and the Citizenship Act
• College can request court injunctions for unlicensed actors

Public Education

Clients in Canada and overseas are better informed of the risks of using unauthorized consultants

• New IRCC outreach positions overseas in place; will raise awareness of ghost consultants
• Robust IRCC communications strategy to be in place
• Fact sheets will be available in multiple languages

Key Implementation Elements

A fair and transparent appointments process was conducted, with 16 candidates meeting all criteria. Final step is for the Minister to formally appoint 5 individuals to the Board via a Ministerial Order.

The College Act requires that IRCC prescribe the functioning of the Registrar, Victim Compensation Fund, complaints process, investigations, reporting, and the handling of personal information.

1. Decision on Continuance for College Opening Completed
   • Following a Ministerial Order, the College is set to open on November 23, 2021.
2. Ministerial Appointments of Public Interest Directors Decision Pending
   • College Opens November 23, 2021
3. Code of Conduct In Development [Redacted]
   • Minister to establish a Code of Conduct for consultants to establish strong ethical and professional standards. [Redacted]
4. New College Regulations In Development [Redacted]
5. IRCC Administrative Penalties Regulations In Development [Redacted]
   • The new Act enables a new system of administrative penalties and consequences for violations related to the provision of immigration and citizenship advice and representation. [Redacted]

Key Decisions and Next Steps

Early decision on Ministerial appointment of Public Interest Directors

Context:

• The College is set to open on November 23, 2021.

Decision required:

• While not strictly required in order for the College to open, an early decision on the appointment of five Public Interest Directors is highly recommended [Redacted].

Next steps:

• Once a ministerial decision on appointees is made, interest of the candidates will be reconfirmed and signatures sought for letters of appointment. The Ministerial Order will also be finalized and published.

Future steps requiring ministerial approval

• Final publication of the Code of Conduct anticipated [Redacted].
• New College Regulations are in development [Redacted].
• IRCC Administrative Penalties Regime regulations are also in development [Redacted].

Item for ministerial awareness

• Under S. 91 of IRPA and S. 21.1 of the Citizenship Act only lawyers, notaries and paralegals can provide advice and representation for consideration. Some stakeholders have raised questions regarding the impacts of this legislation on organizations such as non-governmental organizations. The Department is currently exploring ways forward on this issue.

Annex a: Current Roles and Responsibilities

Key Stakeholders

• ICCRC
• Educational institutions
• Provinces / territories
• Service provider organizations and other non-governmental organizations
• Canadian Bar Association
• Canadian Association of Professional Immigration Consultants
• Federation of Law Societies (and individual provincial/territorial law societies)
• Clients

Immigration and Refugee Board (IRB)

• Detects unprofessional or illegal conduct
• Refers concerns to ICCRC or CBSA

IRCC

• Detects unprofessional or illegal conduct
• Refers concerns to ICCRC or CBSA
• Public awareness
• Reviews information on ICCRC performance

Authorized Consultants

• Usually declare themselves to IRCC or the IRB
• Pay membership fee to ICCRC and must abide by ICCRC’s code of ethics

Represent clients at proceedings

Submit applications for clients

ICCRC

• Current arm’s length regulator
• Sets standards, code of ethics, authorizes and disciplines members

Unauthorized Consultants (Ghosts)

• Unlicensed and usually not declared on application forms
• Not always detected by federal departments (if overseas, no federal jurisdiction)

CBSA

• Investigates many IRPA offences

IRPA & Citizenship Act Offences

• Being an unauthorized consultant
• Misrepresentation or counselling misrepresentation

Royal Canadian Mounted Police

• Investigates some IRPA, Citizenship Act and Criminal Code offences

Criminal Code Offences

• e.g. fraud, extortion, theft

Clients

• May complain to ICCRC, CBSA or a Member of Parliament about mistreatment by a consultant

Provinces / Territories

• Some (e.g. Quebec, Saskatchewan) regulate immigration consultants in their jurisdictions
• Provinces and territories also have jurisdiction for regulation of recruitment