Section 91 of the Immigration and Refugee Protection Act: Clarification From CIC Regarding Human Resources Personnel

On June 30, 2011, Bill C-35, a proposed amendment to the Immigration Refugee Protection Act (“IRPA”) was passed into Canadian law. The amendment addresses who is authorized to assist individuals in the preparation of their immigration applications to Canada.  Now Section 91 of IRPA, section reads as follows:

91. (1) Subject to this section, no person shall knowingly, directly or indirectly, represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act

(2) A person does not contravene subsection (1) if they are

(a) a lawyer who is a member in good standing of a law society of a province or a notary who is a member in good standing of the Chambre des notaires du Québec;

(b) any other member in good standing of a law society of a province or the Chambre des notaires du Québec, including a paralegal; or

(c) a member in good standing of a body designated under subsection (5).

 (5) The Minister may, by regulation, designate a body whose members in good standing may represent or advise a person for consideration — or offer to do so — in connection with a proceeding or application under this Act.

(9) Every person who contravenes subsection (1) commits an offence and is liable

(a) on conviction on indictment, to a fine of not more than $100,000 or to imprisonment for a term of not more than two years, or to both; or

(b) on summary conviction, to a fine of not more than $20,000 or to imprisonment for a term of not more than six months, or to both.

Since section 91 was passed, there has been confusion with regards to what might constitute as “advising” or “assisting” with an immigration matter and whom it was meant to include as unauthorized representatives.  In response, CIC has provided some guidance on this matter by way of manuals and references on its website but it also has, more recently, provided more direct and specific guidance in relation to how section 91 relates to specific groups—namely those within Canadian universities who are in the business of advising current and potential students and faculty on various immigration applications.  It has been largely interpreted, (as well as confirmed by CIC) that these same principles apply to Human Resource professionals within an organization.  Generally, CIC has stated that HR Personnel who do NOT fall under one of the “authorized representative” groups (ie. licensed Canadian lawyer or immigration consultant) are prohibited from conducting the following activities:

• Explain and/or advise on someone’s immigration options;
• Guide a client on how to select the best immigration stream;
• Complete and/or submit immigration forms on a client’s behalf;
• Communicate with CIC and the Canadian Border Service Agency (“CBSA”) on a client’s behalf (except for the direct translation of a client’s written or spoken submissions)
• Represent a client in an immigration application or proceeding;
• Advertise that they can provide immigration advice for consideration; or
• HR personnel cannot complete application forms, such as work permits and visa applications, on behalf of workers recruited.

Further, CIC has released a letter to Canadian universities instructing them on what they can and cannot do with regard to advising their international students and faculty on immigration matters. The letter includes a list of options they may consider doing in order to ensure their activities comply with the new provisions. The options given to Canadian universities were as follows:

1. Hiring or entering into a contract with one or several authorized representatives, as described in Section 91(2) and (3) of the IRPA, to handle the services they provided in connection with immigration applications, if they do not meet the requirements of the new provisions.
2. Having certain employees or education agents become an authorized representative.
3. If abroad, referring clients to a visa application centre, which are authorized service providers for CIC and provide application advice and support services to clients.

CIC has confirmed that, to date, no similar letter has been requested by any HR associations.  However, should a letter be requested by any HR associations it would read in a near identical fashion.   As such, the above options should be considered by HR personnel.

CIC Operational Bulletin 317, dated June 30, 2011, provides further guidance on what unauthorized representatives are able to do, without contravening Section 91. It states:

In general, if a person is providing services which do not involve advising or representing the applicant then he or she are not required to be authorized. Examples of services falling into this category would include:

• Directing someone to the CIC website to find information on immigration programs;
• Directing someone to the CIC website to access immigration application forms;
• Directing someone to an immigration representative;
• Providing translation services;
• Providing medical services (i.e. medical exams, DNA testing); and
• Making travel arrangements.

The purpose of Section 91 is to protect clients, and to ensure that those providing advice are all subject to the same requirements and are required to achieve the level of expertise necessary to assist in often complex immigration matters. Those who are paid to provide services to their clients are therefore prohibited from providing advice to clients with regards to immigration applications, unless they are a lawyer in good standing with a law society of a province, or an immigration consultant authorized by the Immigration Consultants of Canada Regulatory Council. Therefore, according to CIC, HR personnel are no longer able to provide advice, nor represent employees or prospective employees, with regards to their specific immigration needs.

For more information please contact a member of the Immigration Group at Miller Thomson.