Creating barriers to access to justice should not be considered a minimum viable product

  • August 30, 2021

Testing and implementing new technologies cannot deprive applicants of their right to counsel. That is the message from Canadian Bar Association President Bradley Regehr to Immigration Minister Marco Mendicino and Justice Minister David Lametti in a letter expressing concern that Immigration, Refugees and Citizenship Canada is preventing lawyers from effectively representing their clients.

The Immigration Law Section of the CBA wrote to IRCC earlier this year to raise concerns about the exclusion of lawyers. IRCC responded that because of the pandemic it was prioritizing rapid implementation of new digital tools deemed “minimum viable products” that are designed to evolve.

As Regehr writes, “a platform that does not integrate representatives and creates barriers to access to justice should not be considered a minimum viable product.” The CBA is pleased to see new digital products replace outdated systems, which will no doubt improve efficiency in the processing of applications, but IRCC “must not impede lawyers’ ability to represent clients at pivotal stages of their immigration applications.”

“For example,” the CBA letter reads, “the Temporary Residence to Permanent Residence Pathway Programs introduced during the pandemic require a permanent residence application to be submitted by the applicant – not the representative – through an online portal.” While the CBA supports recognizing the contributions of essential workers and recent international graduates, it notes that the quota of 40,000 applications for English-speaking international graduates was reached in just over 24 hours. Which meant applicants had to submit their applications under intense time pressure.

Legal representatives could only counsel on the form and content of applications, but were unable to submit applications on behalf of their clients and ensure everything was in order. “If a client incorrectly uploaded a document or failed to upload a requisite form to the portal, IRCC could refuse their application,” the letter says. These are devastating consequences for an applicant.

Other recent digital platforms that have denied access to lawyers include the new Permanent Resident Digital Intake tool. As well, individuals can apply for grant of citizenship online, but representatives are forced to use the much slower paper application. “Without access to online portals and an ability to submit applications, representatives cannot adequately assist their clients. Some may opt to self-represent, which will reduce their likelihood of success,” the CBA letter says.

IRCC’s response to the CBA Immigration Law Section that representatives can advise clients even if they are not allowed to create digital portal accounts and submit online applications on behalf of their clients is inadequate.

So is IRCC’s suggestion that screen-sharing technologies can help legal counsel assist clients in real time. “Some clients—such as essential workers who work around the clock—retain counsel because they do not have time to carefully upload application documents to an electronic portal. Others may have difficulty navigating the required technology.”

Immigration applicants have a right to be represented by counsel, and IRCC’s digital portals and platforms must reflect that right. “While we understand that IRCC intends to eventually build in a role for representatives in its new tools, applicants and their representatives are harmed when the initial version of a new tool excludes counsel,” Regehr says.

IRCC should immediately allow representatives to access existing platforms and portals, and build new ones with access for counsel built in from the start. Only then will those portals and platforms be considered minimum viable products.