Even though lawyers often complain that the services we provide are unappreciated or undervalued, we are frequently guilty of falling into a routine of processing applications as if they are part of an assembly line as opposed to adding real value to the application process. What gives us the opportunity to distinguish ourselves from certified consultants and unauthorized consultants is our legal training. Our ability to research and analyze issues gives us the skill set to be proactive as well as reactive when unexpected issues arise. Lawyers that spend all of their time just working on files, without maintaining their substantive knowledge base, risk missing key issues or being negligent. The comments that follow are the top 10 research tools that immigration lawyers should utilize on a regular basis.
Read the legislation
Whether you have the Department of Citizenship and Immigration Act on your desktop (bookmarked as a favourite), or keep a hardcopy beside your desk, many of the answers to questions that arise in an application can be found by reading and interpreting the legislation.
Read the immigration manuals
Citizenship and Immigration Canada and Canada Border Services Agency employees consult policy and program chapters of the Operations Manuals for guidance in the exercise of their functions and in applying the Immigration and Refugee Protection Act and its Regulations.
Ask a colleague
Establish relationships with other immigration lawyers so that you can freely call them to discuss a potential case on a no names basis. So long as no one lawyer abuses this arrangement, most lawyers are happy to assist and typically may even learn something themselves by going through the analysis of the fact pattern that you have put in front them.
If you are a recent call, you may not have had the opportunity to establish relationships with other immigration lawyers and may feel that you have nothing to offer in exchange. Consider retaining an immigration lawyer to be counsel to your law firm. In your quote for legal fees, you should take into consideration that you may have to hire external counsel. Alternatively, this may just be a cost of business you should factor into your business plan.
CBA listserv
Posting an inquiry on the listserv is another means of consulting other counsel. If you do not currently subscribe to the listserv, enroll online on the CBA Listservs Enrolment website.
Call a government officer
Running a case scenario by an Officer can be helpful, in that it can often reassure or provide a level of confidence that you are on the right track, and that the application will likely be met with success once reviewed. It can be frustrating when an Officer knows less about the legislation and issues than you do. This can make you less confident about a particular difficult fact scenario. Frequently, an Immigration Officer will not see the case at all the way you would have liked them to have viewed it. This drives home a strong reminder that the role of counsel is one of advocate. Be sure to advocate your client’s position and provide the Officer with as much supporting information and documentation to support the interpretation and outcome you are seeking.
Never become too dependent on calling any one government official. There are many different decision makers, and accordingly, different Officers may view a particular case differently. Furthermore, it is important to value the resources that we have at our disposal and not to abuse these resources. Constant telephoning and consultation with the same Officer may either annoy the Officer or leave the Officer with the opinion that you do not know anything, which could lead the Officer to question the value that you are providing to your clients. It goes without saying that it is important to always be respectful of an Officer’s viewpoint and not be confrontational. It is also important to remember that these types of calls are not binding, and you cannot assume that a favourable input from an Officer during a telephone call will necessarily mean you will succeed when the application is actually filed and considered.
Attend PD programs
Attending PD programs is paramount for all practitioners. So much so, that governing Law Societies across Canada have instigated mandatory professional development. In addition to the substantive law that one might learn by attending a CLE, there are the various personal relationships that one can establish. Often government officials will be in attendance and there is an opportunity to develop a personal rapport with a government official who could be a valuable resource in the future should you need to bounce a case by them. Furthermore, it gives you an opportunity to meet other immigration practitioners who again may be a source of information or reference in the future.
CIC websites
If distance and time are likely to restrict your ability to attend a CLE, another valuable source of information is the government websites. Benchmarked favourites, like the processing time page, the page listing countries that require medical examinations and the dollar value for low income cut-offs for sponsorship cases and for settlement fees.
Another valuable source of information on the government website are the Operational Bulletins, which in exceptional circumstances are used for one-time only instructions or to provide urgent instructions to staff for a brief period, while the relevant operational chapters are being updated.
Case law
Although not every file in your office will require you to refer and rely on case law, even those practitioners who have more of a solicitor’s practice (filing, applications) than a barrister practice (litigator/courtroom) should be familiar with recent cases.
There are many online resources which provide case law, including CanLll, which is a non-profit organization managed by the Federation of Law Societies of Canada. CanLll’s goal is to make Canadian law accessible for free on the Internet.
Quicklaw, which is a fee-based online comprehensive collection of cases from all levels of courts and tribunals. Given that there are costs associated with Quicklaw, it is recommended more for immigration practitioners who appear before Tribunals and various levels of Court.
Some of the decisions made by the Immigration and Refugee Board may be found on its website. While the collection of decisions is not complete, it is helpful to review the decisions that have been identified by the IRB as “decisions of public interest” and “persuasive decisions.”
Paid publications
Carswell’s Annotated Immigration and Refugee Protection Act provides counsel with both the actual legislation as well as key cases that have been applied under particular sections. Canadian Immigration & Refugee Law Practice 2010. Lorne Waldman (Butterworths). provides an overview of the legislative framework of Canadian immigration and refugee law and guiding principles for the exercise of discretion by the Immigration and Refugee Board.
Immigration Criminality and Inadmissibility. Mario D. Bellissimo, Louie R. Genova (Carswell). This text provides a comprehensive analysis of the legislative framework and the jurisprudence in the area of immigration, Criminality and Inadmissibility. It also provides practical tips and effective tactics for managing a file.
ImmQuest, Cecil L. Rotenberg, Q.C. and Mario D. Bellissimo (Carswell). This monthly publication provides up-to-date information, including succinct summaries of relevant issues in groundbreaking cases, as well as practical advice on the daily concerns faced by immigration practitioners.
Lexbase, Richard Kurland (Lexbase Inc.). Lexbase is a monthly publication with annotations of Federal Court of Canada decisions in immigration and citizenship cases rendered during the previous 30 days.
Free publications/resources
There are a number of free publications and resources that may offer practitioners assistance with substantive legal issues, as well as practice management issues.
The Immigration and Refugee Board website
Community Legal Education Ontario (CLEO)
The Law Society of Upper Canada and other Law Societies
Conclusion
Our ability to conduct research, analyze a fact situation, and develop an immigration strategy, and implement and advocate that strategy on behalf of our clients is what distinguishes and justifies the legal services that we provide. It is incumbent on each and every one of us to uphold our professional obligations both to our clients, to the government, and to each other as fellow lawyers by providing competent services and legal advice. Quite simply, this cannot be done in isolation without relying on a variety of research tools.
About the Author
Barbara Jo Caruso is a founding partner of Corporate Immigration Law Firm. She is certified by the Law Society of Upper Canada as a specialist in citizenship and immigration law. She would like to acknowledge the contribution of Ms. Brenda Wong, an associate of Corporate Immigration Law Firm for her assistance with this paper.