It has come to my attention recently that the very important section 91 of IRPA is often misinterpreted by education agents so let’s break it down a bit.
Representation or advice for consideration
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 the submission of an expression of interest under subsection 10.1(3) or a proceeding or application under this Act.
Marginal note:Persons who may represent or advise
Many educational agents or unauthorized consultants claim that they are able to help for free or a recovery administrative fee basis because they are not being paid immigration service-related fees directly by the client. This unfortunately is an overly narrow reading of s. 91 IRPA.
If the application’s success (i.e. student getting a seat at the school) pays you, you are receiving consideration (albeit on what we often call ‘contingency’). Furthermore, even if you do not actually sign a Use of Representative Form but are contributing (i.e. advising) as it pertains to immigration advice on a study permit application – you are advising with respect to an application.
It is also not simply good enough to have a ghost-signing RCIC on your contact list, or hire one internally for your organization. While the former might squeak by on ethical standards or not get caught, the second clearly does not change the issue of consideration. Furthermore, in most cases if you try and seek remuneration or some benefit back, that too could constitute consideration. For example, if an RCIC promises you to send all of their possible student referrals for schools, while you send it back to them for the immigration work, that could constitute consideration in relation to an application for both of you.
I have heard from a colleague that often times educational consultants or former RCICs will contact newer consultants, hoping they can utilize them to help sign-off on immigration applications. In exchange, work is promised and fees are split. Be very cautious of these arrangements with respect to your own level competency but most importantly your obligation to the clients to disclose where their fees are going and who they are being split with. As lawyers, we have strict ethical obligations not to split fees with third-parties other than lawyers. While the wording is much looser currently for consultants, expect the new regulatory/ethic codes for the College to step up significantly on this front.
When representing your client’s best interest (which in some cases may be withdrawing or deferring one’s admission or choice of educational institution), reaping benefits from an institution paying you to recruit for them is indelibly a conflict.
Whenever I advise a student from any institution where I might even have the slightest advisory relationship, I always disclose in writing what that relationship is and ensure they know that my advice will be confidential. Another common book in the shady educational agent playbook is to have the agent act as a ‘family friend’ or ‘relative’ or in the worst cases I have seen even attempt to stand in for the client. Remember, as a practitioner, your regulatory obligation to confirm your client identity – which includes asking the individual to turn their camera on to confirm they match the ID they provided.
I wish IRCC made Section 91 Clearer and Provided Examples
IRCC has been touting for quite awhile recently a very pro-self representative angle. While it is laudable that IRCC is making their platforms much more self-representative friendly, one of the consequences has also been the use of this language to support further ghost consulting and undisclosed consulting. I have seen agents, in the guise of being family friends or interested parties, assist on immigration applications and even appoint themselves as counsel, full well-knowing they will benefit from the student if the application is approved.
The way it currently works (in almost all cases other than rare exceptions in one Province in Canada) is there is no requirement for institutions to disclose to the student, what percentage of their tuition goes to the agent, no requirement for the agent to disclose to their student client, what percentage they are making, and ultimately the immigration process becomes this barrier or vehicle. I cannot think of any other industry where there are no checks and balances.
What Should the Role of Education Consultants Be in Canada? Should They Be Provincially/Nationally Regulated? I Argue Yes.
Overall, Canada needs to have a honest assessment of the role we would like education agents to play in our immigration system. They are inevitably a gatekeeper of institutional opportunity. They are able to expand a school’s reach into countries and communities and give them business leads. Taking a free market approach, shouldn’t schools be unrestrained in their ability to fill seats (i.e. if one is willing to pay, then why not)?
The problem at the heart of international student recruitment though is you are dealing with vulnerable populations of younger individuals, unaccustomed and unfamiliar with the laws of Canada or standard business practices. Many students come from countries where one cannot get an elite opportunity without paying up for it – relationally or financially. When someone offers an opportunity, sugarcoats it, does not disclose their full interest, this can create harm and perpetuate serious misunderstandings with the rules-based, due process laws and regulations we try to promote here and a broad. A student who is unaware of what they are getting themselves into in Canada, the true cost of tuition, and the realities of the city they are moving to – this can create further harm from a mental health aspect.
On the other hand, Canada is losing tons of money (we’re talking 10% – 25%) of a student’s first year tuition. I have also heard of arrangements that go beyond just the first year and are continuous upon enrollment. These entries are also the launching point often for other labour-based exploitation practices. A quite common practice abroad is for an educational agent to secure a seat for a client in Canada and then work with other recruiters to then find the student employment via an LMIA to transition them off studies they never wanted to attend in the first place.
It is indisputable that educational agents contribute directly to the high cost of international tuition, one that has had a major impact on student well-being, but also of their families around the world. Imagine if the 10% to 25% per student went to actually providing international students with resources – proper school counselling services, academic advisors, wellness and cultural staff to help them adapt and deal with the culture shock and emotional letdown that a new environment can bring along.
In my mind, the very least that needs to be done is professional regulation. As it is in Manitoba (although I have questions about the follow-through), all DLIs should be required to share their list of recruiters/agents publicly.
There also should be clear regulation that every agent who also performs immigration services, must also be s.91 IRPA compliant, vetted somewhere during the study permit process.
If I had it my way, similar to what is occurring with foreign workers in representative spaces, I don’t believe any one who has a contingency interest in the student obtaining a seat (i.e. student recruitment) should also be providing immigration services on that file.
Finally, I would also set a mandatorily-disclosed max cap or range for student recruitment to ensure educational agent fees do not extend to an ongoing yearly exploitation or result in the offshoring of tens of thousands of dollars per student.
There are certainly barriers to this. I understand there also may be Provincial/Federal jurisdictional issues, as most labour recruitment issues are Provincial. Many Provinces were also pressured by institutions not to require tracking or registry of student recruitment agencies.
I know such an opinion might make me extremely unpopular in student recruitment circles, but I have to think first and foremost for my clients, the students, who are often given poor advice, a pipe dream, and a major tax on their admission to Canada – with nobody watching or caring for their well-being.
My two cents on this important issue and a topic that is sure to rise to prominence in the years to come. In a future post, we will look at what other countries do to regulate this and as well explore how Manitoba is doing with their model. More to come for sure!