The Use of Artificial Intelligence in Immigration Law
Artificial intelligence (AI) is increasingly being adopted by governments to assist with, and in some cases replace, human decision-making. In Canada, this shift raises important legal and ethical questions, particularly in the context of immigration law, where administrative decisions can have long‑lasting effects on individuals and families. Procedural fairness requires that AI systems used by public institutions be subject to meaningful regulation and safeguards to reduce the risk of arbitrary or opaque outcomes.
One challenge in regulating AI is the absence of a single, globally accepted definition. Different jurisdictions have adopted their own interpretations. The European Commission defines AI as systems that display intelligent behaviour by analysing their environment and taking actions, with some degree of autonomy, to achieve specific goals. These systems may be purely software-based, such as voice assistants, search engines, or facial recognition tools, or embedded in physical devices like autonomous vehicles and drones. This definition is often referenced because it captures both the autonomy and analytical capacity that distinguish AI from more traditional technologies.
Immigration Legislation and AI in Canada
Canada’s Immigration and Refugee Protection Act (IRPA) was amended in 2017 to expressly permit the use of electronic and automated systems in immigration decision-making. Section 186.1(5) allows the Minister or an officer to use an automated system to make decisions, determinations, or conduct examinations under the Act. Section 186.3(2) further authorizes regulations that require applicants to submit applications, documents, and information through electronic means.
Together, these provisions create the legislative foundation for automated decision-making within Immigration, Refugees and Citizenship Canada (IRCC). Once implemented, applicants may be required to interact with these systems as part of the immigration process.
Automated Decision Systems Used by IRCC
The federal government formally signalled its intention to expand the use of AI through its White Paper Series, Responsible Artificial Intelligence in the Government of Canada. The stated objective is to improve administrative efficiency and consistency. For IRCC, automation has been driven in part by the significant volume of temporary resident applications, including study permits, work permits, and visitor visas.
In 2018, IRCC conducted a pilot program using automated decision-making tools for certain temporary and permanent residence applications from China and India. Under this program, low-risk applications were approved without officer review, based on rules derived from prior decisions. IRCC reported substantially faster processing times for these cases. At the same time, the department acknowledged that tasks involving contextual judgment and fraud detection continue to require human involvement.
On April 1, 2020, the Treasury Board implemented the Directive on Automated Decision-Making. This policy responds to legal and ethical concerns by requiring federal institutions to assess risks before deploying automated systems. A key component of the Directive is the Algorithmic Impact Assessment, which must be completed early in the design phase of any automated decision system.
The Directive establishes four impact levels, ranging from systems with minimal and reversible effects to those with very high and potentially irreversible impacts on individuals or communities. Higher impact levels trigger more extensive requirements, including peer review, public notice, human oversight, explanations of decisions, contingency planning, and formal approval before deployment.
Ethical and Constitutional Considerations
The use of automated decision-making by public institutions raises concerns about compliance with the Canadian Charter of Rights and Freedoms. Charter protections related to fundamental freedoms, life, liberty and security of the person, protection against unreasonable search or seizure, and equality rights may be engaged when AI systems influence law enforcement or administrative decisions.
Facial recognition technology illustrates some of these risks. These systems generate biometric profiles, often called feature vectors, and compare them against large databases of images. Studies conducted in the United States have shown higher rates of false positives for certain racialized groups, particularly Black and Asian individuals, with Black women experiencing the highest error rates. Errors may arise from image quality, aging, or similarities in facial features.
If Canadian authorities were to rely on biased or inaccurate AI outputs, resulting searches, detentions, or adverse immigration decisions could raise serious Charter concerns. In the immigration context, mistaken identity or biased risk assessment may lead to application refusals, allegations of misrepresentation, or detention, with significant consequences for affected individuals.
AI Tools Used in Legal Practice
AI tools marketed to lawyers generally fall into several categories, including document management, document analytics and generation, electronic discovery, legal knowledge automation, legal research, and predictive analytics. Document management and analytics tools assist with reviewing and organizing large volumes of information. Drafting tools use machine learning to support the preparation of contracts and litigation documents.
E‑discovery software can analyze large datasets to identify relevant records more efficiently than traditional keyword searches. Legal research platforms increasingly use AI to help locate and summarize relevant case law and legislation. Predictive analytics tools attempt to identify patterns in past decisions to assess possible outcomes, although such tools should be approached with caution given their inherent limitations.
Lawyers’ Professional Responsibilities
The use of AI in legal practice also engages lawyers’ professional obligations. In Ontario, the Rules of Professional Conduct require lawyers to act competently and to protect client confidentiality. Competence includes investigating facts, identifying issues, advising clients on appropriate courses of action, and performing legal services conscientiously, diligently, and in a timely and cost‑effective manner.
Confidentiality obligations require lawyers to safeguard all client information unless disclosure is authorized or required by law. When AI systems lack adequate security measures, there is a risk that client data may be exposed through cyberattacks or system manipulation. These attacks can exploit vulnerabilities in algorithms to alter system behaviour or extract sensitive information.
Lawyers considering the use of AI tools must therefore assess both the benefits and the risks. In some circumstances, AI may support efficiency and accuracy, but its use should be consistent with professional duties and informed by an understanding of how the technology operates.
Comparative Perspective: Brazil
Brazil has implemented AI tools within its court system to address judicial backlogs. The Supreme Federal Court uses an AI system known as VICTOR to analyze extraordinary appeals and identify those connected to matters of general importance. The system performs tasks in seconds that would otherwise take much longer.
The Superior Court of Justice uses a separate system, SOCRATES, to group similar cases and screen those that fall outside its jurisdiction. A further iteration, SOCRATES 2, is being developed to assist judges by summarizing key case elements and relevant precedents. While these initiatives demonstrate potential efficiency gains, they also highlight the ongoing need to address concerns about transparency and bias.
Regulation and Transparency
Many ethical concerns surrounding AI stem from the risk of biased outcomes, technical errors, and misuse of personal data. Transparency is a central issue. Unlike human decision-makers, AI systems may not be able to provide clear, understandable explanations for their conclusions, which complicates challenges to adverse decisions and raises procedural fairness issues.
At the federal level, privacy protection is grounded in the Personal Information Protection and Electronic Documents Act (PIPEDA), which predates modern AI technologies. There is growing recognition that legislative reform is required to address contemporary data practices, including enhanced enforcement powers for the Office of the Privacy Commissioner of Canada.
The Law Commission of Ontario has also examined these issues in its report, Regulating AI: Issues and Choices. The report recommends proactive legal reform, including baseline requirements for all government AI systems, enhanced transparency, mandatory AI registers, detailed impact assessments, compliance with the Charter and human rights legislation, data standards, access to remedies, and independent oversight.
Conclusion
AI is increasingly shaping how immigration decisions are made in Canada. While automation may improve administrative efficiency, it also introduces legal, ethical, and professional responsibility concerns. Clear regulatory frameworks and meaningful human oversight are necessary to preserve procedural fairness and protect individual rights.
For lawyers, understanding how AI tools function and how they affect professional obligations has become an essential aspect of modern practice. In the immigration context, it remains critical that applicants have access to human review of negative decisions, particularly where outcomes may have permanent consequences for their lives.
