Do not ‘do it yourself’ in immigration law

Kelly Goldthorpe

In a time where access to (mis)information is readily and easily available, many people believe that can be an expert after attending law school at “Google University.” Do-it-yourself law occurs in many different practice areas. People are drafting their own wills and getting divorced without legal assistance. They are attending court as self-represented litigants. In important matters affecting key aspects of a person’s life, including immigrating to a new country, many are choosing to go at it alone.

In the DIY law context, online will kits have been prevalent for years. These kits come with instructions and forms to create a last will and testament. This sounds easy enough, but an online will kit does not take into consideration family situation, estate planning and tax mitigation. An online form cannot evaluate a person’s needs, even ones they didn’t even know existed. While DIY wills may be cost effective and look easy, mistakes can be expensive and unpleasant, resulting in long court challenges and ruined relationships. In the end, for anything slightly more complex or non-cookie-cutter, it may be more problematic than it’s worth.

Of course, it is trite for an immigration lawyer to opine on the importance of having representation in immigration applications. Canada’s immigration system is complex with laws, regulations, policies and instructions that constantly change and are increasingly technical. Errors in immigration applications can have devastating and long-lasting effects on peoples’ lives.

Despite the importance of these matters in peoples’ lives, Immigration, Refugees and Citizenship Canada (IRCC) says in bold letters: You don’t need to hire a representative! The Department says that using a representative does not mean the application will be approved and does not draw special attention to an application. IRCC makes forms and guides available for free on its website. IRCC’s position is to simplify the process in order to reduce the need for representation. The website offers application guides, checklists and FAQs aimed at helping applicants navigate the system. It says that by following instructions, people can complete their applications and submit on their own.

Recently, IRCC cut off the ability for representatives to assist applicants in the new temporary resident to permanent resident pathway application portal. The online application available to the first 90,000 applicants prohibited representatives from submitting the application on behalf of their clients. IRCC warned that the portal is a tool to be used by applicants and while representatives “could certainly help prepare the documents,” it is applicants who must upload to the portal and be the one to click “submit.” Of course, this was met with frustration by lawyers who felt marginalized by the move, who believe that ultimately, it is the applicant who will be negatively impacted by this decision to prevent lawyers from submitting on their clients’ behalf.

Immigration matters are unavoidably complex. Additionally, IRCC processing can be unforgiving. People don’t know what they don’t know. Many learn the hard way that the devil is in the details. A missing document, incorrect form, misinterpretation of the question or failure to check the correct box on an application form can have devastating results. Statistics show that applicants who retained a lawyer to assist with their temporary residence application had a lower rate of refusal (10.4 per cent) than those who went at it alone (19.3 per cent).

Entire applications have been returned unprocessed as incomplete for trivial reasons, such as a missing postal code or an unchecked box. One of the most common examples of errors on an immigration form is the answer to the following question: “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” If a person who has been denied a visa to the United States or any other country answers “No” to this question, that person could be investigated for misrepresentation, which would then come with a five-year bar on any immigration application to Canada.

Another frequent error is failing to include family members such as common law partner, spouse or dependent children on an application. This may be through the mistaken belief that including such family members would cause delays in processing. However, a failure to declare family members may result in a lifetime ban on their sponsorship in the future.

Ultimately, when mistakes happen, lawyers are then called upon for assistance. However, litigation takes time and money. It is more expensive and difficult to fix a mistake than to prevent it from happening to begin with. A refused application could result in removal from Canada and then it becomes a race against time to prevent deportation. Resubmitted applications delay family reunification and migration to Canada. A refused immigration visa or application is part of a person’s immigration history and is something that must be disclosed in future applications.

It is understandable for people to want to try to do their own application when the government of Canada explicitly says that a representative is not needed; when affordability is a concern and when an abundance of information is out there waiting to be mined; where anybody who does some reading online can claim to be an “expert.” While it may seem self-serving to encourage people to consult immigration lawyers for immigration services, in reality it may be in the applicant’s best interest to have major life decisions be guided by someone with expertise. A law degree from Google University may be about as valid as a diagnosis from Doctor Google.

Kelly Goldthorpe is an immigration lawyer at Green and Spiegel LLP.

Photo credit / Jane_Kelly ISTOCKPHOTO.COM

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