Immigration and Refugee Legal Aid Cost Drivers

4. Domestic considerations

4. Domestic considerations

4.1 The dynamic relationship between immigration policy and asylum policy

The volume of the immigration and refugee legal aid caseload, or more specifically, the number of refugee claims made in Canada, is the principal cost driver for immigration and refugee legal aid. The overwhelming majority of legal aid costs in this area are incurred in relation to refugee status determination and related legal proceedings involving refugee claimants. Consequently, factors that influence the number of asylum claims made in Canada can be seen as secondary cost drivers. The dynamic relationship between the regular immigration system and the refugee determination system appears to be a major factor in this equation.

In earlier times, when Canada was wide open to immigration from Europe, many of those who arrived through regular immigration channels were fleeing from repression and political persecution. Many among the thousands of immigrants who came to Western Canada in the early part of the 20th century and in the aftermath of World War II were simultaneously seeking new economic opportunities and fleeing from repressive regimes in Eastern Europe. If all that is required to gain entry to a country like Canada is that one apply to the immigration authorities and buy passage from one's country of origin, there is little need to subject oneself to the vicissitudes of the refugee determination process. Refugees are rational people and they will normally seek out the easiest and surest path to safety.

There is also a flip side to this picture. If the barriers to regular immigration are inordinately high, prospective immigrants to Canada will naturally gravitate to the refugee determination process as an alternative path of access. There has been no systematic study of this phenomenon, but experienced observers of the refugee determination process in Canada are aware of the fact that a significant number of the refugee claimants who have sought asylum in Canada in recent years had relatives who were already established in Canada, many of whom had originally come themselves as refugees [53]. At one level, this is to be expected since family members are likely to be subject to the same sort of persecution that drove the original refugee to seek asylum in Canada. It is only normal that other claimants from the same family gravitate to a country where a relative had already been granted asylum. But the phenomenon continues long after the conditions in the source countries that gave rise to the original claim have changed.

It is an open question whether some of the people in this "second wave" of asylum seekers are in reality prospective immigrants who do not qualify to come to Canada through regular immigration channels. Many of them lack the formal education and language skills required to meet the basic qualification thresholds to come as independent immigrants, and the relatives in Canada are often not well enough established to act as sponsors. As a result, some of these people may be driven to use the refugee determination process as an alternative channel for gaining entry to Canada for purposes of family reunification. More in-depth study is required before any definitive conclusion can be reached as to the extent to which the asylum process may be being used this way. Without a clear measure of how pervasive this phenomenon is, one cannot measure the impact on legal aid costs. It is reasonable to surmise that increased emphasis on measures to reunite refugee families as early as possible in the process might reduce reliance on the refugee determination process as a means to effect family reunification. This, in turn, could help to reduce legal aid costs.

A number of respondents interviewed in connection with a study on family reunification carried out by the author for the Canadian Council of Refugees (Frecker, 1995) noted that limited access to Canadian consular services in certain parts of the world, particularly in Africa [54], drives some individuals to turn to the asylum process as an alternative to making a regular immigration application. When one comes from a country where objective conditions provide good prospects for making a successful asylum application, and one faces major logistical problems and lengthy delays in pursuing a regular immigration application, claiming asylum offers an attractive alternative method to immigrate to Canada.

Many of these individuals have valid refugee claims, but they would be just as happy to come to Canada through regular immigration channels if that were a practical and accessible option. The significance of this with respect to legal aid costs is that in most provinces, in particular the provinces where most immigrants to Canada settle, asylum determination proceedings are covered by legal aid, whereas immigration applications are not. If more cases of this type could be handled through regular immigration channels, in all likelihood, there would be a decrease in the number of immigration and refugee cases funded by legal aid.

4.2 The dynamic relationship between overseas selection of refugees and inland determination of refugee claims

Canada is recognized by the UNHCR as one of the leading countries for resettlement of refugees who cannot be repatriated to their country of origin. In recognition of the work done by Canada in the early 1980s with respect to resettlement of over 80,000 displaced persons from Indo-China, the UNHCR awarded the Nansen medal to the "people of Canada". This was the first time ever that prestigious award was granted to an entire country.

There is a widely held belief among the general public that the inland refugee determination process favours queue jumpers, many of whom are less deserving of Canada's protection than are the millions of refugees living in desperate conditions overseas. Critics also allege that the inland determination facilitates entry into Canada of individuals who have not been subject to any effective security screening. These views have been aired with particular vigor in the wake of the terrorist attacks in the United States on September 11, 2001 [55]. Proponents of these views advocate that Canada should restrict inland asylum procedures and place more emphasis on overseas selection. It might reasonably be assumed that if asylum determinations took place overseas, the demand for legal aid services for refugee claimants in Canada would decline, or at least fall outside the mandate of any legal aid authorities in Canada.

Each year, the Canadian government sets targets for the number of sponsored refugees who will be brought to Canada from overseas. The Canadian government sponsors some of these and others arrive under private sponsorship arrangements. Over the past 10 years, there has been a sharp decline in the number of privately sponsored refugees [56]. The reasons for this are complex, and beyond the scope of this report to address. But one might reasonably surmise that increased overseas selection of refugees and an easing of the administrative impediments to sponsorship of refugees from overseas would reduce the need for asylum seekers to make their refugee claims in Canada. Since claim volume is the dominant immigration and refugee legal aid cost driver, a reduction in the number of refugee claims made in Canada should result in reduced legal aid costs.

It is unclear, however, how overseas selection of refugees or increased private sponsorship of refugees from abroad are linked, if at all, with the spontaneous arrivals that drive the inland refugee determination process. There is little, if any, evidence that people who are pursuing claims through the CRDD process might otherwise have come to Canada as sponsored refugees. Only a small portion of those who claim refugee status in Canada have come from situations which would have made them likely candidates for private sponsorship or overseas selection prior to their having come to Canada. Furthermore, refugees sponsored from overseas are selected, in part, on the basis of their expected ability to settle successfully in Canada. Refugees who present their claims in Canada are not required to demonstrate such capacity. So the two groups cannot readily be compared.

While the objective of increasing overseas selection and facilitating private sponsorships is laudable, it is unlikely to reduce the number of persons who come on their own to Canada to claim asylum. People may be genuinely in need of Canada's protection, whether they are selected overseas or they travel to Canada on their own. Like other signatories, Canada is bound under the Refugee Convention not to return Convention refugees to a country in which they have a well-founded fear of persecution based on any of the listed grounds. One can anticipate that among the millions of foreign visitors to Canada each year, there will continue to be a large number of asylum seekers, regardless of how many refugees Canada selects overseas. Therefore, increased private sponsorship and overseas selection of refugees are unlikely to affect the number of inland claims, and consequently, are unlikely to have any significant impact on immigration and refugee legal aid costs[57].

4.3 Impact of domestic enforcement policies on demand for legal aid

4.3.1 Detention of immigrants and refugee claimants

Ever since the arrival of the four boatloads of Chinese migrants off the coast of British Columbia in 1999, active consideration has been given to increasing the detention of illegal migrants to discourage irregular immigration flows. Increased detention of migrants and refugee claimants has major cost implications for legal aid programs. Experience with the BC marine arrivals provides clear illustration of these implications.

First, when individuals are detained for lengthy periods without being convicted of any offence, there is need for regular detention reviews. The Immigration and Refugee Protection Act (s.57) prescribes that there be a detention hearing within 48 hours of the initial detention, and a review of the detention within 7 days following the initial review and every 30 days thereafter.

Many detainees are completely unfamiliar with the Canadian legal system. Often they do not speak either official language. As a result, they need some form of representation or assistance in order to participate effectively in detention reviews. To the extent that legal aid programs cover detention reviews, an increase in the number of detentions represents an additional legal aid cost.

Depending on where the detainees are held, cost for counsel to attend detention reviews or status determination proceedings and to meet with clients to take instructions may also be increased. The Chinese migrants who arrived by boat in 1999 were detained in Prince George and Allouette River where there were no lawyers with experience in immigration matters. The Legal Services Society in British Columbia had to cover travel expenses of counsel from Vancouver and Victoria [58]. These expenses would not have been as high had the claimants been detained at facilities in or near Vancouver. Similarly in Ontario, many of the individuals who are detained by immigration authorities are held in provincial jails outside the greater metropolitan area of Toronto. Legal Aid Ontario incurs travel costs for counsel to attend detention reviews at these facilities.

Apart from travel costs for counsel to attend hearings and client interviews at remote detention facilities, the logistics of representing detained clients are much more complicated than is the case when clients are able to attend at the lawyer's office for meetings. Lawyers encounter lengthy delays in getting access to their clients. Security procedures at detention facilities create major scheduling problems. The hours when hearings can be held are restricted and cases that could normally be completed in a single sitting frequently have to be adjourned (Grant Simmie, personal communication, June 14, 2002) [59]. Wherever possible, lawyers pass the cost of these disruptions on to the legal aid authorities.

The amounts paid under the legal aid tariffs in the five provinces that provide legal aid coverage for detention hearings and reviews range from a flat $200 for preparation and attendance in Manitoba to $160 for the first half day plus up to 3 hours preparation time in British Columbia (see Table 3). Given the wide variability in tariffs, it is difficult to estimate an average cost for detention hearings and reviews.

Table 3
Legal Aid Tariffs for Detention Reviews
Preparation Attendance Additional Items
British Columbia >3 hours @ $80.00 / hr. 1st half day - $160.00 2nd half day - $120.00 Visits to clients in custody - $90.00 Travel - $180 / half day
Alberta >3 - 4 hours @ $72.00 / hr
Manitoba Flat fee - $200.00
Ontario - first review >3 hours Actual time @ $70.35 / hr to $87.94/ hr. Travel > 50 km $ / hour plus mileage
- subsequent reviews > 1 hour
Quebec Flat fee - $100.00

Source:

The calculation is more complex for the other provinces because of the more open-ended nature of their tariffs. British Columbia is the only province for which available data permits even a rough calculation of the average cost per case. According to the information provided by LSS, in most detention cases legal aid is provided for only one hearing (Legal Services Society, 2001a). Assuming this to be the case, one can use the $160 tariff allowance for the first hearing as a reasonable average cost for actual hearing time. British Columbia also allows an additional amount for hearing preparation. But, according to information provided by LSS, in fiscal year 2000-01 the fee for preparation was paid in less than one third of the cases approved for legal aid (Legal Services Society, 2001a) [60]. In cases where payment was made for hearing, average payment was $93, representing roughly 70 minutes billable time, per case. Thus, it is reasonable to allow an average of one hour for hearing preparation, in addition to the time allowed for the hearing itself.

In addition to these charges, the BC tariff also provides an allowance of $90 for each visit to a detention facility to interview a client or to attend a hearing. The BC tariffs also include an allowance for travel to remote detention facilities. If there is to be increased use of detention in immigration cases, it is probable, in the short term at least, that a significant number of the detainees will be held in facilities remote from the centres where IRB operations are centered. Therefore, one should also factor in the anticipated cost for counsel to travel to these facilities. The average expenditure per case where LSS paid travel allowances in 2000-01 was $183 (Legal Services Society, 2001a).

Extrapolating from this information, one can project an average cost of $240 - $513 for each person detained who is covered by legal aid in British Columbia. This calculation is based on $80 for preparation, $160 for the hearing attendance, $90 to visit the client in detention, and $183 for travel to the detention facility. This estimate is extremely crude, but it provides some indication of the cost impact of any significant change in the incidence of detention.

The estimated cost of impact of increased use of detention in immigration and refugee cases is somewhat lower in the other provinces that provide coverage for detention reviews. The legal aid tariffs in Ontario and Alberta do not include a special allowance for visits to detention facilities and payment for attendance at hearings is limited to actual hearing time, which is generally less than the two hours covered by the $160 first half-day payment under the BC tariff [61]. Legal Aid Ontario currently covers fewer than 500 detention reviews per year, so this is not, at present, a significant legal aid cost driver in Ontario (Roderick Strain, e-mail to Andrea Long, April 1, 2002) [62]. The Ontario tariff allows for one-half hour administration time on each file (Legal Aid Ontario, 2002a). Detention hearings are typically concluded in a single sitting lasting less than one hour (IRB, 2002f). Allowing one hour for hearing preparation, it is reasonable to assume that approximately 2.5 hours billable time for detention reviews covered by legal aid in Ontario. Under the current LAO tariff, this represents an average cost for each additional detention review case in the range of $175 - $220, plus any additional amount required for travel. Applying the same time allowance for Alberta, the estimated additional cost per case there would be around $180 plus any required travel allowance. Quebec pays lawyers a flat fee of $100 for each detention review hearing, while Manitoba pays a flat fee of $200 per hearing.

For present purposes, suffice it to note that increased detention of immigrants and refugee claimants would have tangible cost implications in all jurisdictions that provide legal aid coverage for detention review hearings. But this cannot be considered a major cost driver in the overall context of legal aid programs for immigrants and refugees.

4.3.2 Ministerial "Public Danger" Opinions

Section 77(1) of the Immigration and Refugee Protection Act provides authority for the Minister of Immigration and the Solicitor General jointly to certify, with respect to a person other than a citizen or a permanent resident, that the person is inadmissible to Canada on grounds of security, violating human or international rights, serious criminality, or organized criminality [63]. Section 78 prescribes a summary process whereby a judge of the Federal Court has to review the reasonableness of the Ministers' certificate. The person named in the certificate is informed of the review and must be given reasonable opportunity to be heard, but the person named in the certificate is only provided with a summary of the information on which the Ministers have relied. If the reviewing judge determines that disclosure of the information would be injurious to national security or to the safety of persons, even the summary of the information is withheld from the person concerned.

Because of the serious consequences for persons who are the subject of a danger opinion, and because of restrictions on disclosure of information against the person named in the certificate, legal proceedings to review reasonableness certificates issued under section 77(1) pose major challenges for counsel who represent the persons concerned. These proceedings have the potential to be considerably more complex than other proceedings under the Immigration and Refugee Protection Act.

At present, Ontario, British Columbia and Alberta are the only provinces that provide legal aid coverage for submissions on these reviews. The BC tariff allows 9 hours for all work related to a submission to the Minister relating to a danger opinion. The Ontario tariff allows 10 hours. Alberta will, subject to a legal opinion indicating merit, allow up to 10 hours for the submission. Thus, the maximum cost on these submissions would be $720 in British Columbia and Alberta and would range between $670.00 and $837.50 in Ontario. LSS approved 49 certificates for submissions relating to danger opinions in 2000-01. The total expenditure on this tariff item was only $27,552, which represented less than 0.7% of the total amount paid out in fees under the immigration tariffs that year (Legal Services Society, 2001a). Legal Aid Ontario does not maintain separate data on expenditures on legal aid certificates relating to submissions on danger opinions. This item is subsumed in the category "Other Immigration", which also includes detention reviews and submissions on humanitarian and compassionate appeals. All of these items together accounted for only 2% of all immigration and refugee legal aid expenditures in Ontario in 2001-02 [64]. To date, the number of cases in which "public danger" opinions have been issued is so small that this cannot be regarded as a significant legal aid cost driver.

However, following the events of September 11 of last year and the resulting heightened concern about national security, the likelihood that this provision in the Immigration and Refugee Protection Act will be used more frequently has increased. Any significant measure to exclude suspected criminals and terrorists may give rise to calls from the immigration bar for expanded legal aid coverage to enable them effectively to represent refugee claimants who are the subject to exclusion from Canada under the process. Since this is only a possibility at this time and there is very little past experience with respect to legal aid for submissions on danger opinions, it is impossible to quantify the potential cost impact. But it should be noted that there is potential for this to become a new cost driver for legal aid should use of danger certificates increase significantly.

4.3.3 Removal proceedings

Failure of immigration authorities to remove unsuccessful refugee claimants and other persons illegally in Canada has been identified as a major problem in the Canadian immigration system (Auditor General of Canada, 1997: 17-18; 2001, 16-17). CIC has responded to this criticism by devoting more resources to removals. The number of individuals removed from Canada has increased in each of the past three years, and CIC projects that this trend will continue [65].

Legal aid coverage for immigration inquiries before the Adjudication Division, which is the first step in removal proceedings of persons who have been allowed to enter Canada, is available, subject to a merit test, in British Columbia, Alberta, Manitoba and Quebec. Newfoundland also provides legal aid for immigration inquiries on a discretionary basis. However, there is no provision for immigration inquiries in the Legal Aid Ontario tariff.

The IRB reports that roughly 64% of immigration inquiries are concluded in a single sitting and that average sitting time on these inquiries is around 1 hour (IRB, 2002d) [66]. Applying these figures to the tariffs in each of the provinces that provide legal aid for immigration inquiries, the estimated average legal aid cost for immigration inquiries ranges from a low of $100 in Quebec to a high of $320 in British Columbia [67]. Immigration inquiries represent a very small portion of all immigration and refugee legal aid costs in these provinces and inquiries are not driving legal aid costs in any significant way at the present time. The cost impact of any increase in removals will depend on how the respective legal aid authorities deal with individual applications for legal aid in relation to immigration inquiries in the future.

4.3.4 Increased focus on point-of-entry interviews

One of the major challenges in the refugee determination process is to obtain as much information as possible from claimants soon after they arrive in Canada. There is a widely held belief among immigration officers and IRB members that information provided by claimants when they first arrive in Canada is likely to reflect their true story. There is concern that claimants are sometimes counseled by people they meet in the community after they arrive in Canada to revise their stories in ways that are supposed to be more convincing (Frecker, Duquette, et al., 2002). In the past, immigration officers attempted to interview claimants at points of entry to get basic information needed to determine their eligibility to make a refugee claim. However, the quality of interpretation and the quality of the information obtained from these interviews have been very uneven. IRB members and CIC officials have a shared interest in improving the quality of front-end information gathering. The question is how best can that be accomplished without fundamentally altering the nature and purpose of point of entry interviews.

Arrangements are currently being made to increase resources at points of entry with a view to interviewing all those who make refugee claims. These interviews are intended to be more structured than in the past, though they will still be focused primarily on getting information needed to facilitate security checks and eligibility determinations (Frecker, Duquette, et al., 2002).

The Supreme Court of Canada has held that point of entry interviews are not analogous to a hearing. The purpose of these interviews is to aid in the processing of the individual's application for entry and to determine the appropriate procedures for dealing with his or her refugee claim. According to the Court, the principles of fundamental justice do not include a right to counsel in these circumstances of routine information gathering (Supreme Court of Canada, 1993, Dehghani v. Canada (Minister of Employment and Immigration).

No legal aid plans in Canada currently provide coverage for point of entry interviews. Assuming that these interviews remain essentially as characterized in Dehghani, any increase in the number of such interviews should have no cost implications for legal aid. However, if the nature of point of entry interviews changes and the interviews are used to gather information beyond that required to determine admissibility and eligibility to have the claim referred to the IRB for a hearing, one can anticipate that counsel will question whether the ruling in Dehghani still applies. Should the nature of these interviews change to the point that principles of fundamental justice require that claimants have a right to counsel at such interviews, legal aid authorities will have to decide whether involvement by counsel at these interviews will be covered. This would represent a new cost for legal aid plans.

Logistics for providing counsel at points of entry, should that become necessary, are quite complex. Some form of duty counsel system, involving either lawyers or paralegal advisors, would likely be the only practical option since large numbers of claimants must be processed within a short time when they arrive at points of entry. However, there is no right to counsel at these interviews at present. And there is no reason at this time to contemplate that legal aid will be provided for these interviews. Therefore, provision of counsel for point-of-entry interviews can safely be ignored as a legal aid cost driver unless, and until such time as, the case law changes.


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