Legal action urges requirement for lawyer presence in meetings between border officials and migrants

A legal challenge is seeking to expand the right to a lawyer for immigrants and asylum seekers in “high-stakes” proceedings that impact their ability to enter or remain in Canada.

Currently, extensive portions of the immigration and refugee system do not afford people the right to be represented by a lawyer, says the proposed application for judicial review by the Canadian Immigration Lawyers Association, or CILA.

Asylum seekers, for example, do not have the right to counsel during border examinations where they must mount complex legal arguments to gain admission into Canada. As previously reported by The Globe and Mail, lawyers are typically forbidden from being present during these interviews.

Applicants for permanent and temporary residence visas, as well as Canadian businesses seeking to hire foreign nationals, also do not have the full right to counsel. While there is no bar on individuals or businesses hiring a lawyer to help them with these matters, there is no corresponding obligation on Canadian officials to recognize or communicate directly with those legal representatives.

The consequences of a negative or erroneous decision in a visa application or border examination are significant, the CILA application argues:

“Spouses may be separated from each other. A victim of domestic violence may not obtain a temporary resident permit. A business can be left without a temporary foreign worker’s expertise. An asylum seeker can be denied entry at the border.”

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Isabelle Dubois, a spokesperson for Immigration, Refugees and Citizenship Canada, said the department is aware of the application and is currently reviewing it, but couldn’t comment further as the matter is before the federal court.

In Canada, the right to counsel is guaranteed at the Immigration and Refugee Board, which is an independent tribunal, or when an immigrant or asylum seeker has been arrested or detained.

The legal challenge says the failure to recognize the right to counsel in other immigration matters is discriminatory and unconstitutional. That, CILA argues, is because immigrants may face significant obstacles in applications and interviews owing to linguistic, educational, cultural barriers or mental health issues.

In court filings, the government has indicated its intent to strike the application, arguing that CILA lacks standing to bring forward a public interest case on behalf of impacted individuals.

In 1993, the Supreme Court ruled that an Iranian asylum seeker arriving at the Canadian land border did not have the right to a lawyer during the border agency’s secondary in-depth interview process. The federal government has applied that finding to a broad range of settings where people are not detained, the application says.

However, that court decision was made before Canada signed a refugee treaty with the United States that significantly transformed asylum policy at the land border, said Maureen Silcoff, one of the lawyers representing CILA.

The Safe Third Country Agreement bars many asylum seekers from entering Canada if they have passed through the U.S., requiring them to request refuge in the first of the two countries they arrive in.

However, there are exceptions – including for people with close family in Canada or who face a significant risk of inhumane treatment in the U.S.

For asylum seekers, an erroneous decision made under this agreement at the Canadian border could result in being returned to the U.S. and detained or deported as part of the Trump administration’s unprecedented immigration crackdown, said Ms. Silcoff.

“The landscape has completely shifted,” she said.

Sujit Choudhry, co-counsel on the case, said the legal challenge raises urgent “economic and humanitarian” concerns. “There’s some very practical issues at stake here for businesses and for human beings,” he said.

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The 846-page CILA application includes affidavits from immigration lawyers and a former border services officer who argue that a broader right to legal counsel would also improve efficiency in an immigration system that is currently bogged down by backlogs.

This is because lawyers have the expertise to interpret Canada’s immigration rules and provide government officials with accurate information – which would reduce the likelihood of miscommunications, shoddy applications and erroneous decisions.

“We think this is a win-win-win,” said Mr. Choudhry.

The application calls IRCC’s messaging about the right to legal counsel convoluted and contradictory.

IRCC’s website advises visa and work permit applicants that they do not need to hire representation, although it also provides forms that allow applicants to appoint a lawyer.

When applicants do so, however, government officials often circumvent those lawyers by refusing to communicate directly with them, failing to grant them full access to online portals, or denying them full participatory rights in their clients’ interviews and examinations, the application says.

Lawyers play a crucial support role for people navigating an increasingly complex immigration system, the application argues. Even without a language barrier, that system – and the layers of regulations governing it – is difficult to understand, said Mr. Choudhry.

“It’s Byzantine.”