Vol. 145, No. 12 — March 19, 2011

ARCHIVED — Regulations Amending the Immigration and Refugee Protection Regulations

Statutory authority

Immigration and Refugee Protection Act

Sponsoring department

Department of Citizenship and Immigration

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issue

In 2004, the Regulations were amended to ensure that only persons who were authorized representatives could, for a fee, represent, advise or consult with a person who was the subject of a proceeding or application under the Immigration and Refugee Protection Act (IRPA). The term “authorized representative” was defined in the amendments as a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Canadian Society of Immigration Consultants (CSIC). The primary intent of this change was to enhance public confidence in Canada’s immigration program.

The Regulations were amended in response to persistent and credible reports that some unscrupulous immigration consultants, both in Canada and abroad, were facilitating people smuggling and fabricating documents permitting foreign nationals to enter Canada illegally. Certain consultants who held themselves out as experts had no training or experience in handling complex files. Others made false promises, and charged exorbitant fees for their services. In a number of reported cases, consultants charged fees for an unfulfilled promise to file immigration applications, while providing bogus file reference numbers and advising clients that the Canadian government has refused the application.

In 2003, CSIC was incorporated as an independent, federally incorporated not-for-profit body operating at arm’s length from the federal government and in 2004 they were recognized in the Regulations as the organization responsible for regulating paid immigration consultants (who are not lawyers or members of the Chambre des notaires du Québec). According to the December 1, 2003 Immigration Consultants Program Contribution Agreement (CA) between CIC and the then newly established CSIC, the primary objective of CSIC was “to enhance public confidence, preserve the integrity in the immigration program and protect vulnerable clients by providing them a recourse mechanism where they have been given inappropriate advice.” At that time, the Government committed to stakeholders that should CSIC fail to fulfill its central role of consumer protection and maintaining professional standards, the Government would take action to remove its recognition of CSIC members. (see footnote 1)

Over six years later, concerns about the regulation of immigration consultants persist. In 2008, the House of Commons Standing Committee on Citizenship and Immigration (Standing Committee) undertook a study of the immigration consulting industry. The Standing Committee travelled throughout Canada over a three-week period to hear from witnesses. These witnesses included, among others, members of CSIC, the Canadian Bar Association, the Canadian Association of Professional Immigration Consultants, the Royal Canadian Mounted Police and the Canada Border Services Agency (CBSA). In June of 2008, the Committee issued a report, summarizing its findings, entitled Regulating Immigration Consultants.

The analysis undertaken by the Standing Committee raised concerns regarding the current practice of the regulation of immigration consultants and its potential impact on public confidence in the immigration program. The Committee stated that it had heard from “a number of immigration consultants across the country, many of whom expressed great dissatisfaction with the way CSIC is currently governed.” Consequently, it is proposed by CIC that a federal regulator with a strong governance and accountability framework would provide efficient and effective regulation of immigration consultants, which in turn would support Canada’s long-term immigration objectives as well as bolster public confidence in the immigration system.

Objectives

The intent of the proposed Regulations is to better protect applicants to immigration processes and enhance public confidence in the immigration system by recognizing a regulator of immigration consultants that has demonstrated that it meets the necessary organizational competencies to effectively regulate immigration consultants.

Description

This regulatory amendment proposes to remove the reference to the “Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003” from the definition of “authorized representative” under section 2 of the Regulations. This would have the effect of ending CSIC’s ability to act as a body that regulates the activities of immigration consultants for the purposes of IRPA and thus removing the recognition of its members as “authorized representatives” under the Regulations.

This regulatory amendment would replace CSIC with the Immigration Consultants of Canada Regulatory Council (ICCRC), taking into consideration the report of the Selection Committee following the Call for Submissions published in the Canada Gazette, Part I, on August 28, 2010, and that ended on December 29, 2010. The Selection Committee was composed of four external experts and three senior public servants — including two from CIC and one from CBSA — who examined the submissions received in response to the Call for Submissions.

Finally, a transitional provision would permit persons who are members in good standing of CSIC immediately before the coming into force of the proposed regulatory amendments to be able to continue to consult with, advise and represent persons for a period of 120 days following the coming into force of the proposed amendments. Such a provision would ensure continuity of service, and protect applicants to immigration processes as well as the livelihoods of the former CSIC members.

Regulatory and non-regulatory options considered

Many options were considered to address the lack of public confidence in CSIC, including the introduction of new stand-alone legislation to re-establish the body using a law society model.

It was acknowledged that, considering CSIC’s arms-length status, CIC had limited ability to affect the organization’s practices. The concerns with CSIC related to its core governance mechanisms and the legitimacy of such mechanisms as perceived by its membership, by Parliament and by the public.

A legislative approach to reconstitute CSIC as a statutory body, as suggested by the House of Commons Standing Committee, was rejected due to concerns about a lengthy and resource intensive implementation process. While CIC has not initiated such changes as recommended by the Standing Committee, it seeks to move forward with the legislative changes to IRPA found in Bill C-35, which would strengthen government oversight of the regulator and should improve discipline of its members through the information sharing provision.

Consistent with the selection factors outlined in the Call for Submissions published in the CanadaGazette, Part I, in August 2010, ICCRC has demonstrated that it meets the necessary organizational competencies to effectively regulate immigration consultants. It has also demonstrated the ability to foster a culture of transparency and openness in order to be properly accountable to its membership and to the Canadian public. The proposed entity has demonstrated its commitment to sound financial management and reporting, as well as a plan to ensure a membership base that would provide for the sustainability of the body through the promotion of membership to qualified practitioners. By proposing fee reductions, it is believed that members will get better value for their money, belong to an entity that practices good financial management and creates an incentive for new consultants or “ghost” consultants to participate in a legitimate association that provides support and oversight.

Benefits and costs

Overview

In identifying the costs and benefits of designating a new entity to regulate immigration consultants, the baseline was established against which all incremental costs and benefits were measured. The established baseline is the situation where CSIC will continue to operate and govern the industry in its current form. It is recognized that no organization remains static and that CSIC may reform and improve accountability and achieve overall efficiency gains. However, because it is not possible to predict the operational actions of CSIC over the study period with any certainty, CIC has chosen to measure all impacts from the current situation.

The baseline is then compared with the option to create a new governing body. In this case, it is assumed that CSIC will no longer perform the function of governing immigration consultants and thus will cease to operate for that purpose. ICCRC will be designated to provide the same functions as CSIC with a commitment to enhanced standards of competence, integrity, accountability, viability and good governance.

The regulatory change generates an overall net benefit to society because it supports the creation of a body that provides good governance, accountability and integrity to immigration consultants as well as to Canada’s overall immigration programs. It is also understood that the mechanisms proposed by ICCRC for the rigorous assessment of the competence of prospective members and procedurally fair and effective complaint and discipline mechanisms, as well as certification procedures, would contribute to more effective management of the immigration consultants industry.

The total estimated cost for the analysis period (2011–2020) for the option that would create a new governing body to replace CSIC is approximately $3.6 million. These costs can be largely attributed to start-up and transitional costs. The total corresponding estimated benefits of the proposed regulation is $11.2 million, largely due to a commitment by the ICCRC to reduce membership fees. By comparing the quantitative costs and benefits of both scenarios, it is estimated that the proposed amendment would generate a monetized benefit in the range of $7.6 million (PV) over the analysis period.

Results and summary table

Costs and benefits	Base year	Year 1 (2012)	Yearly average	Final year	Total (2011–2020)
A. Quantified impacts, in millions of dollars (PV)
Benefits
Dues reduction — members	0.0	0.9	0.7	0.6	6.6
Labour efficiency gains/ Director fees — ICCRC	0.0	0.3	0.2	0.2	2.0
Labour efficiency gains/Staffing — ICCRC	0.0	0.6	0.3	0.2	2.6
Total benefits	0.0	1.9	1.1	0.9	11.2
Costs
Start-up costs — CIC	0.03	0.03	0.02	0.0	0.2
Corporate support costs — CIC	0.5	0.4	0.2	0.0	2.0
Transition costs — CIC	0.2	0.2	0.06	0.0	0.6
Loss of repayable contribution – CIC	0.5	0.0	0.05	0.0	0.5
Transition costs — Province(s)	0.1	0.0	0.01	0.0	0.1
Costs for unemployment insurance for CSIC staff — Government of Canada	0.0	0.08	0.008	0.0	0.08
Salary loss for staff — CSIC staff	0.0	0.1	0.01	0.0	0.1
Total costs	1.3	0.8	0.4	0.0	3.6
Total net benefits	–1.3	1.1	0.7	0.9	7.6
B. Qualitative impacts
Benefits	Based on ICCRC’s submission for the public selection process, the organization has committed to enhancing the protection of the Canadian public and those who use the services of immigration consultants through the implementation of various tools and measures, including the development of awareness campaigns on issues of fraud and available resources among immigrant communities, immigrant service providers, as well as the general public. It is believed that such commitments, coupled with strong management and regulation of immigration consultants would lead to increased public confidence in the immigration system.
	Based on ICCRC’s submission, the organization intends to install mechanisms for the rigorous assessment of the competence of prospective members and provide procedurally fair and effective complaint and discipline mechanisms, as well as robust certification procedures to accredit consultant training and continuing education programs. This is anticipated to lead to better quality representation from consultants at the Immigration and Refugee Board (IRB), and avoid unnecessary delays since poorly trained consultants may prolong IRB proceedings or may fail to present proper evidence on behalf of their clients.
	As the successful candidate, the ICCRC has demonstrated the commitment to enhanced standards of competence, integrity, accountability, viability and good governance in the immigration consultants industry.
Costs	All identified costs have been quantified.

A full cost-benefit analysis report is available upon request.

Benefits

New regulator

By meeting the selection factors outlined in the August 28, 2010 Call for Submissions, the ICCRC would be well placed to uphold the primary objective of ensuring that the public is well served by ethical and professional immigration consultants through its own effective regulation of those consultants.

The proposed new regulator is expected to provide, among other things, a procedurally fair and accessible complaint and discipline mechanism, a code of conduct, errors and omissions insurance for members, as well as liability insurance for the body itself, a compensation fund, and a commitment to provide full services in both official languages to both members and clients. It is assumed that the Government of Canada would provide funds to aid the entity in start-up expenses so that it can ensure continuity of service and protect applicants to immigration processes as well as the livelihoods of former CSIC members.

It is projected that the ICCRC would incur incremental savings in director’s fees since it has proposed to reduce such fees from a reported $55,000 per year to $12,000 per year. While the ICCRC has suggested hiring six additional directors, the significant reductions in the fee structure would lead to an overall net savings. It is also projected that the ICCRC would incur savings in salaries and benefits from the current staffing levels. With respect to staff members, the ICCRC has proposed hiring 18 staff in the first two years and 24 staff for years three and onwards, which would result in a net salary savings to the ICCRC.

Immigration consultants

Immigration consultants would benefit from a governing body that is more accountable and transparent to its members. To this end, the selection factors outlined in the Call for Submissions published in the Canada Gazette, Part I, on August 28, 2010, included competence, integrity, accountability, viability and good governance. These competencies serve to ensure that any new not-for-profit regulator is accountable and transparent. It is expected that this would, in turn, address the concerns raised by the Standing Committee, and immigration consultants alike, in their calls for a more accountable and transparent governing body.

Furthermore, the proposed new entity, in passing on its operational efficiency gains would seek to reduce fees. This fee reduction would represent a benefit for members. It is proposed that the current average fee (which does not include errors and omissions insurance) of $2,095 will be reduced to $1,550, which is more in line with comparable legal associations. It is not expected that fee reductions will result in a loss of services to members, but will be achieved by operational cost savings.

The general public and applicants to immigration processes

The ICCRC has demonstrated through its successful candidacy in the public selection process that it has the necessary competence, integrity, accountability, good governance and viability to effectively regulate the immigration consultant profession in the public interest. It is expected that measures to strengthen the accountability and transparency of the governing body would provide a qualitative benefit by improving public confidence in this body’s ability to regulate immigration consultants in a manner that protects applicants to immigration processes, as well as the integrity of the immigration program. Through the promotion of membership to qualified practitioners, the ICCRC will make efforts to include the largest number of consultants while maintaining rigorous entry standards. Mechanisms will be put in place in order to ensure that the competence of prospective members is rigorously assessed, and that complaint and discipline mechanisms are procedurally fair and effective. The ICCRC has also committed to enhancing the protection of the Canadian public and those who use the services of immigration consultants through the development of awareness campaigns on issues of fraud and available recourses among immigrant communities and immigrant service providers, as well as the general public. Through the better regulation of the profession, applicants to immigration processes should in turn be offered better consultation, representation and advice as well as better protection.

Immigration and Refugee Board

The ICCRC has committed to putting mechanisms in place for the rigorous assessment of the competence of prospective members and for providing procedurally fair and effective complaint and discipline mechanisms, as well as certification procedures and procedures to accredit consultant training and continuing education programs. This would, among other things, ensure better quality of representation from its members. It is anticipated that better quality representation would lead to better and faster decisions at the IRB by avoiding unnecessary delays caused by poorly trained consultants who often prolong IRB proceedings or fail to present proper evidence on behalf of their clients, thereby having a negative impact on the integrity of the immigration system.

Costs

Board of directors and staff

According to the 2008–2009 Annual Report, 9 directors were reported to be collecting fees, and there were 29 staff members. It is recognized that, where CSIC is replaced by the ICCRC, the impact upon existing CSIC board members and staff would be significant, as they would lose their positions in the event that CSIC was subsequently wound down as a result of decreased membership and revenue. This impact has been reflected in the cost summary.

Immigration consultants

Immigration consultants can be expected to have concerns about the proposed transition to a new governing body. The ICCRC has demonstrated that it recognizes the importance of a smooth transition to a new regulator and has taken into consideration the many factors necessary for such a transition to be carried out effectively. The proposed transitional provision in the Regulations would also further ensure that members in good standing of the current body would continue to be authorized to represent applicants for a specified period of time after the coming into force of the regulatory amendments, providing them with time to register with the proposed new entity. The ICCRC would make every effort to ensure that members and their immigrant clients experience minimal disruption during the 120-day transition phase.

Citizenship and Immigration Canada and the Government of Canada: One-time repayable contribution to CSIC and funds available to the ICCRC

It is unlikely that the $500,000 repayable contribution to CSIC would be repaid to CIC once the new entity is designated, given that CSIC would not have reached 3 000 members at the time of the proposed change and would therefore be under no obligation to repay the contribution. However, CSIC could have reached a membership level that would have required them to pay the repayable contribution back to the Government of Canada, had a new regulator not been chosen. We therefore treat the $500,000 as an incremental loss to the Government of Canada. Furthermore, there was an additional $700,000 investment made by the Government of Canada in CSIC at its establishment. However, this money was not due to be repaid and thus is not considered to be an incremental cost in the analysis.

Transitional costs to the Government of Canada and to the provinces

Citizenship and Immigration Canada would, during the lead up to and during that transitional period, incur general operational costs in updating their manuals to reflect the name of the new regulatory body. These costs would be absorbed through departmental budgets. A total of up to $1,000,000 would be provided as a repayable contribution by the Government of Canada to the new entity to assist with start-up costs. The net cost has been calculated as the opportunity cost of the contribution by the Government.

Rationale

A range of options were considered to address the aforementioned issues with the existing regulator. In particular, consideration was given to the introduction of stand-alone legislation to establish a federal regulator using a law society model as recommended by the Standing Committee. This latter approach was rejected due to concerns about a resource-intensive and lengthy implementation process. It was determined that the most time and cost-effective approach would be to work within the existing regulatory framework and establish a public selection process to identify the regulator best placed to govern immigration consultants in the public interest.

In order for CIC to ensure enhanced governance and accountability, an agreement between CIC and the ICCRC would be required. The agreement would ensure that the new governing body would remain accountable to CIC. This would, in turn, support the integrity of the immigration system while maintaining the CIC’s arm’s-length relationship with the regulator. If the agreement were to provide for funding, it would also make provision for CIC to further ensure that the organization is fiscally responsible and well-governed.

Consultation

On June 12, 2010, a first Notice of Intent was published in the Canada Gazette, Part I, proposing a public selection process with the objective of identifying a governing body for recognition as the regulator of immigration consultants. The Notice of Intent solicited comments from the public on the proposed selection process. A total of 98 comments were received, a number of which expressed concerns about the current situation and suggesting measures to strengthen the transparency, accountability and effectiveness of the regulation of third party representatives.

Comments were received from a number of provinces which suggested, among other things, that the successful candidate should initiate outreach and awareness-raising campaigns, assure and maintain the competency and quality of service and establish mechanisms for dissatisfied members and others to influence the regulator’s internal functioning.

Finally, comments were received from various third parties, including CSIC. These comments included a recommendation that the regulatory body be accountable to its membership, to the public and to the Government of Canada; that a single federal body regulate the profession; that strict reporting and accountability requirements be put in place; and that the regulator promote a culture of transparency. In addition, it was recommended that the selection of the regulatory body be fair, transparent and public.

Call for Submissions

Following the Notice of Intent, and after considering the comments that were received, selection factors were developed to ensure that any entity serving as the regulator of immigration consultants would have the capacity to support Canada’s immediate and long-term immigration objectives, as well as maintain public confidence in the immigration system.

Citizenship and Immigration Canada published a Call for Submissions on August 28, 2010, soliciting submissions from candidate entities interested in performing the responsibilities of a governing body for the regulation of immigration consultants. Candidates were given four months to submit their proposals.

Focusing on membership, competence and compliance, complaints and investigations, and discipline, the ICCRC has demonstrated that it has the capacity to meet established organizational competencies that serve as selection factors for this process. The ICCRC has also demonstrated an understanding of its public protection role and of the vulnerability of its primary constituency, the would-be users of Canada’s immigration programs.

Selection Committee

The Department established a Selection Committee comprised of four external experts and three senior public servants — including two from CIC and one from CBSA — to examine the submissions received in response to the Call for Submissions. The external members of the Committee were selected for their expertise and experience in matters related to corporate governance, regulatory bodies and immigrant settlement services.

After considering the submissions and other relevant factors, the Committee reported the results to CIC, which in turn provided a recommendation to the Minister of Citizenship, Immigration and Multiculturalism as to which organization(s) demonstrated the necessary competence, integrity, accountability, good governance and viability to effectively regulate immigration consultants so as to preserve the integrity of the immigration system. Based on this recommendation, the ICCRC was chosen as the regulator best placed to govern immigration consultants.

Provincial and territorial consultations

Regulatory harmonization would be assured in consultation with the provinces and territories. Inter-governmental discussions were undertaken and a request for recommendations regarding the public selection process to identify a governing body for recognition as the regulator of immigration consultants was requested from provinces and territories. Provinces and territories responded to the Notice of Intent, all indicating their support for the proposed approach and the need for strong management and regulation of the immigrant consultant industry.

Implementation, enforcement and service standards

Citizenship and Immigration Canada would negotiate a contribution agreement with the ICCRC outlining specific terms and conditions.

Upon the conclusion of the negotiations between CIC and the proposed regulator, CIC would prepare communications products to support the transition process and to update operational procedures.

In addition to transitional measures in the proposed regulatory amendments that would ensure continuity of service for both consultants and their clients during the transition to a new governing body, the ICCRC would also implement further measures to ensure fair admission processes both for members of the existing body as well as for those in the process of becoming members of the regulatory body. Efforts would also be undertaken by the ICCRC to ensure that such transitional measures are communicated clearly to individuals to whom they apply. Through the use of a contribution agreement and consistent with the Call for Submissions published in the Canada Gazette, Part I, on August 28, 2010, CIC would ensure that the chosen entity pursues its commitment to exercise a high level of competence, integrity, accountability, good governance and viability.

Contact

Mark Davidson
Acting Director General
Immigration Branch
Citizenship and Immigration Canada
365 Laurier Avenue W
Ottawa, Ontario
K1A 1L1
Telephone: 613-941-8989
Fax: 613-941-9323
Email: mark.davidson@cic.gc.ca

PROPOSED REGULATORY TEXT

Notice is hereby given that the Governor in Council, pursuant to subsection 5(1) and section 91 of the Immigration and Refugee Protection Act (see footnote a), proposes to make the annexed Regulations Amending the Immigration and Refugee Protection Regulations.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Mark Davidson, Acting Director General, Immigration Branch, Department of Citizenship and Immigration, 365 Laurier Avenue West, Ottawa, Ontario K1A 1L1 (tel.: 613-941-8989; fax: 613-941-9323; email: Mark.Davidson@cic.gc.ca).

Ottawa, March 7, 2011

JURICA ČAPKUN
Assistant Clerk of the Privy Council

REGULATIONS AMENDING THE IMMIGRATION AND REFUGEE PROTECTION REGULATIONS

AMENDMENTS

1. The definition “authorized representative” in section 2 of the Immigration and Refugee Protection Regulations (see footnote 2) is replaced by the following:

“authorized representative”
« représentant autorisé »

“authorized representative” means a member in good standing of a bar of a province, the Chambre des notaires du Québec or the Immigration Consultants of Canada Regulatory Council incorporated under Part II of the Canada Corporations Act on February 18, 2011.

2. Subsection 13.1(2) of the Regulations is replaced by the following:

Exception

(2) During the period of 120 days after the coming into force of this subsection, subsection (1) does not apply to a person who immediately before the coming into force of this subsection was a member in good standing of the Canadian Society of Immigration Consultants incorporated under Part II of the Canada Corporations Act on October 8, 2003.

COMING INTO FORCE

3. These Regulations come into force on the day on which they are registered.

[12-1-o]

Footnote a
S.C. 2001, c. 27

Footnote 1
Canada Gazette, Part II, April 14, 2004: http://gazette.gc.ca/rp-pr/p2/2004/2004-04-14-x/html/sor-dors59-eng.html.

Footnote 2
SOR/2002-227