Immigration lawyers are suing Ottawa over right to represent clients

Lawyer Sujit Choudhry explains why the the Canadian Immigration Lawyers Association is suing the federal government over newcomers' alleged lack of access.

A lawyers’ group says it is suing the federal government in a bid to boost legal protections for newcomers in “high-stakes” immigration and refugee cases.

The Canadian Immigration Lawyers Association (CILA) wants to force three federal departments to recognize the right for newcomers to have access to their lawyers in all stages of the visa application process. The non-profit organization named Immigration, Refugees and Citizenship Canada (IRCC), Public Safety and Emergency Preparedness, and Employment and Social Development Canada as defendants in Federal Court documents.

Immigrant and refugee applicants can hire lawyers to represent them, but the federal government often prevents counsel from helping clients for a wide range of immigration and refugee matters, said Sujit Choudhry in a recent video interview with CTVNews.ca. Choudhry is representing CILA in the Federal Court case.

“What we’re trying to do is to establish through a court order the right to be represented by counsel throughout the entire system,” said Choudhry, a principal at Circle Barristers in Toronto.

“So it covers the whole spectrum of immigration matters, and that’s why it’s so consequential. Without there being an official recognition of the right to counsel, there is no right for individuals to have a lawyer involved in any of these processes,” Maureen Silcoff, a refugee and immigration lawyer who is also representing CILA in the federal lawsuit, said during the same video interview with CTVNews.ca.

“And we’ve seen how applications and interviews can go off the rails, how it causes harm to people, how these are high-stakes matters.”

Choudhry said CILA is not arguing for the federal government to pay for legal counsel for applicants but rather to be “legally obliged” to recognize counsel people have hired at their own expense in applications, interviews and examinations. This would mean the lawyer is the “exclusive point of contact” for other parties to communicate with and can make arguments on behalf of their client, he said.

“Those lawyers have no right to attend the interviews with their clients and to answer questions on their behalf,” Choudhry said about the current situation with asylum seekers at the U.S.-Canada border, as an example.

The federal government only recognizes the “right to counsel” during Immigration and Refugee Board hearings and detentions, according to CILA in Federal Court filings. CILA says the right doesn’t apply in interviews, examinations at a port of entry, and applications, including for permanent and temporary residency and citizenship.

The allegations have not been proven in court. CILA is in the early stages of litigation. It began the process earlier this year to sue the government departments in Federal Court and filed evidence in early September. CILA said it is waiting for a response from the federal government to the case.

Employment and Social Development Canada, as well as the Department of Justice, referred CTVNews.ca to IRCC for a response to the legal action. Public Safety and Emergency Preparedness didn’t respond to CTVNews.ca’s request for comment.

IRCC said it is reviewing CILA’s lawsuit.

“We can’t comment further as the matter is before the courts,” IRCC spokesperson Matthew Krupovich said in an email to CTVNews.ca on Friday.

Lawyers often excluded: CILA

The exclusion of lawyers in many stages of the application process makes the immigration and refugee system inefficient and unfair, Choudhry added.

CILA said it also worsens the backlog of court cases at the Immigration and Refugee Board, as well as Federal Court. CILA said appeals and litigation stemming from restricting access to lawyers can cost taxpayers tens of millions of dollars.

“So the problem is that when individuals have gone to the trouble of hiring a lawyer and the government doesn’t deal with the lawyers, then everybody loses,” said Choudhry.

The problem can lead to mistakes and make the process inefficient since applicants are left to deal with the federal government on their own and may not understand the legal concepts, Choudhry said. This can result in applicants providing inaccurate information that may hurt their applications in what can be a complicated process, he added.