*Blog posts are not legal advice.
It's a classic scenario for an immigration lawyer; you take over a file where there were critical mistakes made by the previous immigration professional. The mistakes led to a refusal of an application, and the clients are now facing deportation.
Many people work their entire lives to come to Canada. They put their hopes, trust and savings into an immigration professional that promises to deliver results.
In reality, immigration law is complicated with several moving parts, constant changes in law and policy, and unpredictable results. The consequences of a professional error can be dire for applicants. For instance, the error can lead to loss of immigration status, which can lead to the inability to work and earn income, loss of opportunity to sponsor family members and/or deportation from Canada. At law, these consequences are referred to as "damages."
So what do applicants typically do in these scenarios? They complain to the professional, file a disciplinary complaint to the regulatory body, and submit a subsequent application to try and restore their status. These steps are important, but non-exhaustive.
What other avenues are available?
In Canada we have a sophisticated civil litigation system where professionals are held accountable for mistakes they make when there are measurable damages. Furthermore, immigration lawyers and consultants are insured, so if there is an award, monies can actually be paid out. Oftentimes if there was a clearly identifiable error, the insurer's lawyer will offer to settle so an applicant can be compensated for some of the damages caused without having to take the matter to trial. Money isn't everything, but it always helps.
But pursuing a civil claim is more than just about money. Section 3 of the Immigration and Refugees Protection Act contemplates that applicants are entitled to "process." If a professional causes an error and it's laid out in a civil complaint — and then a subsequent application is submitted to Canada Immigration — the argument can be made that a reason for the Officer to lend credence to the application is that he/she did not receive the benefit of proper process (because of the error which led to the refusal). While this may be one of many arguments in the application, the civil complaint will substantiate the position that the applicant was "deprived" of process because of the professional error.
When an immigration lawyer takes over a file, they have an obligation to fight for their clients. Furthermore, immigration lawyers have an obligation to further the profession and promote the cause of justice. The possibility of litigation should force immigration professionals to tread carefully through the challenging practice of immigration — to the benefit of the applicants that rely on our services.
So why is immigration law the new personal injury law? Because like physical injuries, immigration injuries happen every day to regular folks that deserve compensation for their losses.