Immigration lawyers take Canadian government to court over immigrants’ right to legal counsel

The Canadian Immigration Lawyers Association (CILA) has filed an application to the Federal Court of Canada arguing that immigrants and asylum seekers should have a guaranteed right to legal counsel in many parts of the immigration process where this right does not currently exist.

What is the CILA case about?

The CILA is asking Canada’s Federal Court to recognize that immigration applicants have the right to hire a lawyer and that government officials must communicate with those lawyers. This would also give immigrants and asylum seekers the right to a lawyer during “high-stakes” proceedings, including border examinations and interviews.

Presently, immigrants can choose to hire a lawyer or regulated consultant to help with applications, but this is optional. As well, in many situations Canadian officials are not required to deal directly with the lawyer.

The current system also does not give asylum seekers the right to legal counsel during border examinations. These meetings are often high stakes, determining an asylum seeker’s ability to enter Canada. The CILA case argues that asylum seekers should have the right to a lawyer during these interactions.

CILA argues that the current system is unfair and confusing for applicants, who often face language barriers, cultural differences, and complicated rules. The case has been filed against three federal departments: Immigration, Refugees and Citizenship Canada (IRCC), Employment and Social Development Canada (ESDC), and Public Safety Canada, which oversees the Canada Border Services Agency (CBSA).

Why it matters for immigrants to Canada

Immigration forms, interviews, and border examinations are high-stakes situations. A small mistake or miscommunication can lead to life-changing consequences: families may be separated, individuals facing violence may not be granted temporary resident permits, and businesses may lose critical foreign talent.

CILA says this creates discrimination, because those with less education, limited English or French, or trauma may struggle to defend themselves without a lawyer present.

What are the current rules for immigrants?

In Canada, immigrants and asylum seekers have the right to legal counsel at hearings before the Immigration and Refugee Board (IRB) and when someone is detained or arrested, under section 10(b) of the Charter of Rights and Freedoms.

However, there is no automatic right to counsel in many other parts of the system, including in applications for permanent and temporary residence, as well as during meetings and interviews with immigration and border officers.

How is the Canadian government responding?

Immigration, Refugees and Citizenship Canada told The Globe and Mail that it is aware of the application and is reviewing it, but could not comment further since the case is before the court.

In its legal filings, the federal government has also signaled that it will try to strike down the application by arguing that CILA does not have “standing” to bring the case. This means the CILA may not be the right party to represent the interests of newcomers in court.

Would this change save Canadian taxpayers money?

The CILA argues that giving immigrants and asylum seekers the right to legal counsel would save money for Canadian taxpayers. “This dynamic ends up costing Canadian taxpayers tens of millions of dollars in proceedings,” states the CILA brief, citing these costs are “due to appeals and litigation that could be avoided if the federal government corresponded with immigration lawyers in the first place.”

However, it is unclear how the CILA’s proposed changes would be financed and if the changes would reduce costs. Would Canadian taxpayers foot the bill for asylum seekers’ right to legal counsel during border examinations? How much would this cost? And – how would these new legal requirements impact processing times in an immigration system already facing backlogs and delays?

What happens next?

The Federal Court must first decide whether to allow the case to move forward. If it does, and if CILA is successful, the outcome could be significant. The court could declare that newcomers have the right to counsel in a much broader range of immigration matters. That would force the government to change its policies. This could include updated rules, forms, and portals.

For now: nothing changes. Immigration applicants can still hire a lawyer when preparing applications, though this is not required. And asylum seekers must continue to conduct border examinations without the right to legal counsel.

What newcomers should know today

If you are currently applying to immigrate to Canada, you have the option to hire a lawyer or consultant to help with your application.

In some cases, this can be a wise decision. For example, applications for permanent residence are complex and even a single mistake can be grounds for refusal. Having an immigration lawyer or consultant review a PR application can catch critical errors. Additionally, applicants facing complex situations like past refusals or criminal inadmissibility can benefit from legal advice.

If you decide to work with a lawyer or consultant: be cautious. There are many immigration lawyers and consultants who will try to charge prospective newcomers exorbitant fees for unnecessary services or for applications with little chance of success.

If you are seeking help with your case, Moving2Canada recommends a handful of regulated Canadian immigration consultants.

Moving2Canada will continue to monitor this case closely. For updates on this story and other important immigration news, sign up for our free newsletter.