2 JULY 2010


CATHERINE MARX

Senior Policy Analyst

Social Policy and Programs – Citizenship and Immigration Canada

Ottawa, Ontario

CANADA GAZETTE

Vol. 144, No. 24 — 12 June 2010

GOVERNMENT NOTICES

DEPARTMENT OF CITIZENSHIP AND IMMIGRATION

IMMIGRATION AND REFUGEE PROTECTION ACT

Dear Ms Marx:

Thank you for your clarification which I received by email.

Instead of presenting you with a policy white paper or full submission brief, I feel it is best not to duplicate the comments presented to your office by fellow stakeholders. In short, I will simply comment on under-discussed aspects of immigration consultancy regulation.

Even though I studied law in the UK and the US, I chose to qualify as an immigration consultant because I wanted to work immediately in the field without the delay caused by articling in a law firm. I have also worked as an immigration practitioner in both the United Kingdom and the Republic of Ireland. Therefore, I bring both a legal and global perspective that is unique amongst my immigration consultant colleagues.

One of the congenital flaws of the Canadian Society of Immigration Consultants (CSIC) is the governance structure that the previous Government designed:

not only do the Bylaws give an unwise amount of discretion for the Board of Directors to disqualify member-proposed motions and member candidates, the very heart of CSIC’s constitutional crisis is its lack of accountability.(1). One of the selection criterion for a self-regulatory body should be the candidate organization’s proposed Accountability Structure.


The current regulatory organization has a shocking lack of accountability in which excessive penalties can be imposed by the registration staff with no appeal beyond the Registrar.

I would suggest that we adopt the Accountability model from the UK regulator, namely the Immigration Services Tribunal, which is an arms-length body that reports to the Ministry of Justice, is headed by a retired judge, is comprised of immigration consultants and stakeholders, and is tasked with the power to set aside or vary decisions of the Registrar of Immigration Consultants.

In short, the enumerated selection criteria for the self-regulatory agency should include a requirement to design an arms-length ombuds tribunal to whom consultants can appeal the decisions of the Registrar.

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(2). An important selection criterion for the self-regulatory body should be the candidate organization’s proposal for Ministerial Oversight therefore bringing the self-regulation of immigration consultants under the scrutiny of Parliament.

During the debacle of CSIC’s replacement of self-regulation with self-aggrandizement, one of the most serious failures of Canadian civil society was the official indifference by both Ministerial staff and Members of Parliament. Complaints about both the principles and practices of CSIC were met with disclaimers that as a private corporation operating at arm’s length to the federal government, nothing could be done and therefore consultants should use “internal measures” to seek redress. The tragedy is that there were and are no internal measures; the previous Government had set up the Bylaws of CSIC in such a way that a self-seeking managerial group could dismiss any complaint, any member-proposed bylaw, and any appeal without formal review.

Moreover, if the Parliament of Canada mandates membership of CSIC as a condition for consultants to practice then there is the constitutional issue of giving a federal regulatory role to a private organization without providing federal oversight. This reaches to the level of legal unconscionability.Therefore, the enumerated selection criteria should require candidate bodies to design a governance structure that includes Ministerial Oversight so that the self-regulatory agency is answerable to Parliament and parliamentarians.


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(3). A vital selection criterion for the self-regulatory body would be the aspirant organization’s demonstration that its candidacy commands the support of a majority of immigration consultants and therefore is truly self-regulatory.

Under the current regulatory regime, there is no self-regulation of and by immigration consultants. Canadian immigration consultants are regulated by former consultants that were appointed to the Board of Directors of CSIC by the previous Government who have used the Bylaws to cling to their authority. While CSIC’s governance principles are flawed, its governors are oppressive. The current managerial group compounds their personal thirst for positions of authority with a particularly short-sighted understanding of the regulatory mandate:

The “regulator” of a Self-regulating profession is not the same as the regulator of an industry such as public utilities or telecommunications companies. In those industries, the regulator is a government watchdog which exercises oversight in the public interest with legal authority as a counter-balance to the market power of the industry.

This watchdog/policeman model has been misapplied to immigration consultants and has created a situation in which the offices of CSIC have adopted a siege mentality in a war against the membership.

A self-regulatory agency is not a “regulator” from above—it is the practice of consultants regulating fellow-consultants.

In order to correct this misunderstanding of self-regulation by both the management and the membership of CSIC, it may be necessary for the new self-regulatory body to have a dual mandate of protection of the public interest (consumer protection) with supporting the development of the profession (consultant advocacy). There are precedents for this in other professions in Canada and more recently the Law Society of Scotland overwhelmingly voted to retain their “dual mandate” in Referendum 2:Should the Law Society of Scotland as statutory regulator continue to be responsible for promotion of the interests of, and the representation of, solicitors in Scotland?


Seventy-three percent of Scottish solicitors said yes.

Another aspect to consider is the electoral system for the new self-regulatory body and consultants would be wise to adopt the Law Society “bencher” model so that Directors are elected by their nominating regions and bring the concerns of their regions to the Board’s attention. The current CSIC arrangement is profoundly flawed.

Finally, any shortlisted candidate organization’s proposal for the self-regulatory role should be approved formally by the current membership of CSIC before being implemented by the Minister.

The enumerated selection criteria should require candidate bodies to prove that they understand self-regulation, require them to design a functional democracy, and insist that they seek a mandate from authorized consultants before the Minister will assign the self-regulatory role. In other words, the selection process must include a professional referendum.

In summary, I submit that the following areas of self-regulatory practice are under-discussed by my colleagues and immigration stakeholders:

 An Ombudsperson Tribunal for immigration consultant appeals of Registrar decisions;

 Ministerial Oversight so that Parliament and parliamentarians can communicate with the self-regulatory body; and

 Balancing the public interest with professional advocacy in the Self-regulatory Mandate .

Finally, the Selection Criteria must include a requirement for any successful bid for the self-regulatory role to be approved by a majority of consultants in a professional referendum.

I thank you for the opportunity to register my comments on the profession of immigration consultancy.

I remain, yours sincerely,

Garreth Westwood, MA(Econ) CFP JD(Cand)

Accredited Immigration & Citizenship Law Practitioner