Most Canadians are unlikely to be aware that the penalty for having used a fake university admissions letter is the same penalty for someone using forged identity documents like a fake passport: deportation and a 5-year ban from Canada. That same penalty also applies for misrepresentation that occurs at the application stage, whether or not the person’s application is approved, or if they enter Canada. As well, a person who submits their own study application and uses a fake university admissions letter is treated the same as a person who hires an immigration consultant who submits a fake university admissions letter without that person’s knowledge. All of it is the same in the eyes of Canada’s immigration laws.
How Immigration, Refugees, Citizenship Canada (IRCC) has handled the “fake university admissions letters” scandal, and the subsequent stories that came out of that scandal including Karamjeet Kaur and Lola Akinlade, has highlighted immigration laws that follow the “mandatory minimum” punitive approach, and need reform. Although mandatory minimum penalties are not the norm in Canada, remnants of the “mandatory minimum” punitive approach to public policy can be found across institutions, which should be reformed.
Mandatory Minimum Thinking is Bad Thinking.
The Immigration and Refugee Protection Act (IRPA), which sets out the punitive measures for various immigration violations, has aspects to it that seem to have been tabled with the effects of these policies coming second to rhetoric and symbolism. The section that deals with “misrepresentation”, which lumps all misrepresentation together, is Section 40 and came into effect in 2002 to replace the former Immigration Act, 1976. Then, in 2013, the IRPA underwent another round of legislative updates and increased the penalty for those found inadmissible under this section. Those changes increased the penalty for misrepresenting information on an application from two to five years.
The “misrepresentation ban” mandates a blanket approach to any and all misrepresentation, and it considers any act of misrepresentation being equal in its offence. Misrepresentation often encompasses a broad range of fraudulent activities including submitting fraudulent documents like fake identity documents, fake employment records, fake admissions letters; providing false information like lying about personal details, identity, and qualifications; and it can be omitting relevant information that could affect the outcome of an immigration application.
The focus of the current legislation seems to be more on immigration officers being able to manage large volumes of applications without having to weigh on the severity of each case, rather than getting each immigration case file right 100% of the time. It also only allows for a judicial review of the decision of the immigration officer in extenuating circumstances, requiring substantial evidence to override a ban.
Despite that this legislation around misrepresentation was tabled with the intention of ensuring the integrity of Canada’s immigration system and discouraging all forms of fraud, there were circumstances that were beyond what anyone could have imagined might happen. What legislators could not have accounted for was the different levels of culpability that may arise related to “misrepresentations”. As an example, the case of an immigration loophole that might be exploited by fraudulent immigration consultants. Because of situations like the “fake university admissions letters” scandal, not having flexibility and failing to account for different circumstances that are bound to arise in such situations makes it impossible to get immigration right 100% of the time.
Accounting the cost of deporting aspiring Canadians with great Canadian potential.
Whether deporting individuals, like Karamjeet Kaur or Lola Akinlade and her family, or the countless others whose names we will never know, is a good idea needs to be accounted for. It is even more important if we consider how our immigration rules place the onus for everything in an application on the applicant. The starting point for every interaction between an aspiring Canadian and immigration officer, related to the “fake university admissions letters” scandal, has been, “You had to know about everything regarding your application, including that the immigration consultant that you and other applicants were using was secretly involved in crime” With that as the starting point for every interaction, it is impossible not to penalize victims of fraud during the pursuit of culprits.
Trying to account for the costs that each deportation order and 5-year ban has has challenges. What is possible, however, is to carry out an economic analysis of the “fake university admissions letters” scandal, based on the lay-est of metrics like whether these aspiring Canadians were in the process of completing their studies or had completed their studies, and whether they were employed – in accordance with their study and work permits. Additional metrics could include whether they were responsive to Canada’s immigration authorities, after they were told about their fake university admissions letter or whether they went into hiding.
All of the variability involved with the “fake university admissions letters” scandal makes context and discretion important, but it also highlights the lack of fairness and proportionality in our immigration laws. When we deport and ban individuals and families without much consideration for the totality of their circumstances, losing out on aspiring Canadians like Karamjeet or the Akinlades, it has a net negative result on Canada. Yet we deport them and disregard their great Canadian potential because our immigration laws are rigid in the wrong places and fail to make decisions that are in the public interest of all Canadians.
Canada may be the best-positioned country when it comes to population potential, and a country whose greatest advantages will only be realized after it becomes proportionally populated. Our geographic positioning has afforded us the conditions for an immigration-positive society, and we would probably all be better served by reforming “mandatory minimum” aspects of our immigration laws that fail to put the public interest of all Canadians at the forefront.
