An Analysis of Immigration and Refugee Law Services in Canada

Executive summary

This report provides a descriptive profile of the legal services available to refugees and immigrants in each of the Canadian provinces. Included in this profile are the services offered through legal aid (Part One) and the services provided by a variety of community organizations serving refugees and immigrants (Part Two). The section on legal aid considers the availability of legal advice and public legal education materials in addition to the provision of formal legal representation. The section on community organizations also focusses on the legal services offered by these groups, although some information on the settlement services available to new arrivals in Canada is also provided.

Methodology of the study

The information on provincial legal aid plans presented in Part One was collected through a review of annual reports and other relevant literature, a series of interviews with key provincial respondents, and the distribution and collection of data charts. In interviews, legal aid plan representatives were asked about the nature of staffing and service provision, and also about the strengths and weaknesses of available services and key gaps in the system currently in place. Data collection charts were prepared in advance of the interviews and distributed electronically to respondents. However, the results of the data collection process were uneven, for several reasons. Firstly, there are provincial variations in the delivery of legal aid and the tracking of caseload and client data, and legal aid representatives tended to compile data into new charts that accorded more closely with their provincial system. Second, several respondents commented that compiling the amount of data requested would require too great an investment of time. Third, respondents noted that they have received multiple requests for data from a variety of different research projects, and several participants expressed frustration with the apparent lack of co-ordination among these initiatives. In combination, these factors complicated efforts to compare the legal aid data included in the report across provinces.

The information on community organizations serving refugees and immigrants, in Part Two, was collected through key informant interviews and the distribution of data collection charts. Legal aid respondents were initially asked for suggestions of community groups to interview, with further contacts being sought from this first round of organization representatives if necessary. Interview questions covered the services offered by an organization, staffing and funding issues, as well as impressions concerning opportunities and challenges confronting the immigration and refugee law system. As with legal aid, data collection charts were prepared in advance and, in most cases, distributed electronically. However, several expressed frustration with how to classify their clients and/or services into the categories provided. One reason for this frustration is confusion over the kinds of cases that belong in each immigration and refugee law category; a second reason is that community organizations do not tend to view the immigration and refugee law process as a discrete area, and therefore do not capture data separately

Since the focus of this project is on available legal resources in the immigration and refugee law area, the interview process for community organizations focussed on those providing legal assistance. In most provinces, however, some suggested contact groups were either primarily or entirely settlement service organizations: groups offering services designed to facilitate new arrivals' transition into Canada from a broader social, economic, employment, and family perspective. Accordingly, information on available settlement services has also been provided where applicable. In addition, it is important to note that, in light of the limited sample of organizations interviewed, the information and data collected from community groups should not be considered comprehensive. While certain trends may emerge, in terms of available services, problem areas, or success stories, it should not be assumed that these trends reflect the experience of all organizations involved in the delivery of assistance to refugees and immigrants at the community level.

Summary of legal aid immigration and refugee law services

This section develops an overview of the services available through legal aid in each of the provinces providing coverage for immigration and refugee law matters. The four provinces that provide no legal aid coverage to refugees and immigrants have been omitted (Saskatchewan, Nova Scotia, New Brunswick and Prince Edward Island).

TYPES OF IMMIGRATION AND REFUGEE LEGAL AID SERVICES BY PROVINCE
Type of Service Province
B.C. Alta. Man. Ont. Que. Nfld.
General Advice or Assistance Yes Limited Limited Yes Limited Limited
Legal Advice or Assistance Yes Limited Yes Yes Yes Yes
Legal Representation Yes Yes Yes Yes Yes Yes
Duty Counsel Representation Yes No No No No Limited
Public Legal Education Yes No No Yes Yes Limited
Translation or Language Assistance Yes Yes No Yes Yes Yes

As the above table indicates, all of the provinces that provide legal aid coverage in any form for immigration and refugee law cases offer legal representation to their clients. The table below summarizes the specific immigration and refugee law issues for which legal aid assistance is available in each of these jurisdictions.

The availability of legal advice or assistance is almost as broad as legal representation, although the comprehensiveness of advice programming varies considerably by province. Alberta is the only exception, where legal advice is available only from the Immigrant Services Co-ordinator. All provinces except Manitoba offer translation or other forms of language assistance, typically as a disbursement item. Clients in need of these services in Manitoba are referred to the Interfaith Immigration Council.

General advice or assistance is provided in B.C. and Ontario, with the latter offering the most extensive system for delivering this kind of service through its network of Community Legal Clinics. Duty counsel representation is not an area in which services tend to be available for immigration and refugee law matters. Only B.C. has a system in place for providing duty counsel services in immigration and refugee law matters, and even this system operates only for detention reviews in Vancouver.

Table: COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES

As indicated in the above table, the most common areas of legal aid coverage for immigration and refugee law matters are Convention Refugee Determination hearings, detention hearings, Federal Court judicial reviews and appeals, and Supreme Court appeals. Of these, legal aid plans provide the greatest amount of service in the area of Convention Refugee Determination hearings. The universal availability of legal aid for Convention Refugee Determination matters dovetails with comments about the importance of making legal services available to refugees, given that they are often in vulnerable situations.

The fact that legal aid is available in all six provinces for detention reviews and Federal and Supreme Court proceedings, in addition to Convention Refugee hearings, suggests that coverage tends to correspond with the more legalistic aspects of the immigration and refugee law process. Legal issues that require appearances in court or before the Immigration and Refugee Board require more specialized legal knowledge and experience. Accordingly, it is arguably more important that refugees and immigrants be able to access assistance.

After Convention Refugee Determination hearings, detention reviews, and Federal and Supreme Court cases, other immigration and refugee law issues for which legal aid tends to be available are Immigration Appeals and Immigration Inquiries. With respect to the former, all of the provinces except Newfoundland provide coverage; in terms of the latter, Newfoundland and Ontario do not extend coverage.

Port of entry admissibility interviews are not covered by any of the provinces, and only Ontario covers Port of Entry eligibility determinations. Similarly, only Ontario reported regularly providing coverage for Inland claims eligibility determinations. Alberta may extend coverage in this area subject if there is a favourable legal opinion supporting the application. Alberta extends the same discretionary coverage for s. 27 Inland violations of the Act, as does Manitoba, while Quebec is the only province that provides regular coverage in this area. Representatives from Legal Aid Ontario commented that, if eligibility testing becomes more stringent under new immigration legislation, legal aid may consider extending coverage in this area.

IMPRESSIONS ABOUT LEGAL AID COVERAGE

The following tables summarize the problem areas and success stories raised by legal aid plan respondents.

Problem areas
Thematic Problem Areas Province
B.C. Alta. Man. Ont. Que. Nfld.
Approaches to Service Delivery X X X X
Funding Issues X X X X
Range of Coverage X X
Barriers for Refugees X
Lack of Language Assistance X
Low Demand X
Approaches to service delivery

Respondents from B.C. raised the ongoing question of the relative efficiency of staff lawyers versus private bar lawyer. Similarly, Quebec representatives pointed to the virtual "monopoly" private bar lawyers hold in the immigration and refugee law area, due to the lack of legal aid staff lawyer services. A respondent in Alberta highlighted the fact that private bar lawyers have been unwilling to permit paralegals to be involved in their cases. The concerns raised by legal aid representatives in Ontario include the role played by immigration consultants and the inability of community organizations to play a larger role in the delivery of direct legal assistance, given their lack of legal knowledge and training.

Funding issues

Respondents from B.C. cited a general lack of funding for immigration and refugee legal aid (and legal aid, generally) as a source of concern. Ontario respondents were also concerned about the lack of funding for immigration and refugee legal aid. The constraints imposed by tariff structures were raised as an issue by respondents in B.C. and Manitoba, while Newfoundland respondents pointed to limited staff resources as a key reason for delays in case processing. Legal aid representatives in B.C. also raised the issue of the federal-provincial jurisdictional debate over funding for immigration and refugee law legal aid (an issue noted by respondents from Nova Scotia and P.E.I. as well).

Range of coverage

Legal aid representatives in Manitoba indicated that legal aid coverage for immigration and refugee law matters is inconsistent due to difficulties in recruiting private bar lawyers. Respondents from Ontario pointed to gaps in coverage in terms of the issues handled by CLCs and the geographic distribution of CLC services.

Barriers for refugees

Respondents in B.C. highlighted the fact that the refugee system in this province is overly adversarial.

Lack of language assistance

Respondents in Ontario noted that there are not enough resources for language assistance at CLCs.

Low demand

Respondents in Newfoundland suggested that there is little demand for immigration and refugee law services in this province.

Success stories
Thematic Success Stories Province
B.C. Alta. Man. Ont. Que. Nfld.
Approaches to Service Delivery X X X X
Collaboration with Community Organizations X X
Range of Coverage X X

As indicated by the above table, far fewer success stories were highlighted by legal aid plan representatives in the provinces providing coverage for immigration and refugee law issues.

Approaches to service delivery

Respondents from B.C. highlighted the Immigration and Refugee Clinic as a success story in the province. Specialized paralegals and staff lawyers provide valuable assistance in non-tariff areas as well as a comprehensive body of knowledge about refugee source countries. Similarly, Legal Aid Ontario representatives highlighted the success of both the Refugee Law Office and Community Legal Clinics. Respondents in Newfoundland insisted that staff lawyer services are more cost-efficient, while an Alberta representative suggested that the pilot project position of Immigrant Services Co-ordinator has been a success to date.

Collaboration with community organizations

Respondents from both B.C. and Manitoba highlighted collaboration between legal aid and community organizations serving refugees and immigrants as a positive feature of the immigration and refugee law systems in their respective provinces.

Range of coverage

Legal aid representatives in both Alberta and Quebec suggested that the range of immigration and refugee law issues for which legal aid coverage may be extended in these provinces is comprehensive.

Summary of community organization immigration and refugee law services

This section presents an overview of the legal services offered by refugee and immigrant serving community organizations in all ten provinces.

Table 2: TYPE OF COMMUNITY ORGANIZATION LEGAL SERVICES BY PROVINCE

As the above table indicates, the community organizations serving refugees and immigrants that were interviewed in the ten provinces are more likely to provide assistance in areas that do not involve specific legal claims. Most notably, these include referrals, advice, and language assistance.

Referrals are a service provided by community organizations interviewed in each of the provinces. In many cases, respondents considered the provision of referrals - the connection of clients with appropriate resources - to be a key part of their services. The referral services available in Nova Scotia, New Brunswick and Prince Edward Island are described in the table as "limited" because respondents in these places noted that there simply are few resources to which to refer people on immigration and refugee law matters.

In terms of providing advice on immigration and refugee law, community organizations' advice tends to be more general than legal, typically concerning basic legal information, legal processes, and rights and responsibilities. Many agencies emphasized their role as "information providers," with quite a few respondents making a distinction between delivering information versus providing advice. These groups were uncomfortable with the idea that providing advice meant directing clients on a particular course of action. In addition, many community organizations reported dealing with a wide range of legal issues outside of federal immigration and refugee law. When asked about their legal services, respondents from these agencies often pointed first to their work on general legal issues of relevance to refugees and immigrants - income tax, social services, labour law and employment standards, family law, and so on. This was also the case for public legal education activities.

In terms of legal advice, the activity most often undertaken by community organizations is assistance with the completion of forms, although some groups will also take limited action(s) on a client's behalf (for example, making a call, writing a letter, accompanying a client to meetings). Assistance with forms is most often extended for Humanitarian and Compassionate applications, Post-Determination Refugee Claimants in Canada Class applications, and Personal Information Forms. Interestingly, respondents typically did not characterize this activity as a kind of legal advice or assistance until they were asked specifically about the form completion.

Language assistance is another area in which community organizations are frequently involved. Many of the groups interviewed have translators and interpreters on staff and/or a bank or network of volunteers with various linguistic skills on whom they rely. In many cases, these staff or volunteers will offer linguistic assistance for legal matters, including meetings with lawyers, preparatory work for hearings, and actual legal proceedings. The only provinces in which no language assistance is available for legal work are New Brunswick and P.E.I.

Overall, legal representation is not an area in which most community organizations are regularly involved. Even when organizations reported that they provide legal representation in some immigration and refugee law matters, this tends not to be a primary area of service delivery. No legal representation is provided by the organizations interviewed in Alberta, Saskatchewan, and P.E.I. In the remaining seven provinces, legal representation is most often provided by community group staff for Convention Refugee Determination, Humanitarian and Compassionate applications, and Post-Determination Refugee Claimants in Canada Class applications. After these three primary immigration and refugee law issues, additional matters for which some community organizations provide legal representation are Immigration Appeals Division cases and Adjudication Division cases.

IMPRESSIONS ABOUT LEGAL AID COVERAGE

The following tables summarize the problem areas and success stories raised by community organization respondents.

Problem areas

Table : IMPRESSIONS ABOUT LEGAL AID COVERAGE

Community agency respondents in the ten provinces identified similar problem areas to those identified by legal aid respondents, although there were some differences in the way these concerns were expressed.

Range of coverage

The range of immigration and refugee services available was a key concern of many community organizations in eight of the ten provinces. Respondents in B.C., Saskatchewan, Ontario, Quebec, Nova Scotia, New Brunswick, Newfoundland and P.E.I. all pointed to an overall lack of access to comprehensive legal assistance for refugees and immigrants. Respondents in the four provinces without any legal aid coverage for immigration and refugee law (Saskatchewan, Nova Scotia, New Brunswick and P.E.I.) highlighted this as a key reason for the shortage of legal services.

Funding issues

Inadequate funding for immigration and refugee law services was identified as a problem area by community organization representatives in B.C., Alberta, Manitoba, Quebec and New Brunswick. The respondent from B.C. highlighted past and ongoing provincial government cuts, as well as the impact of the devolution of responsibility for settlement services from the federal government to the province. Organizations in Alberta pointed out that the high cost of legal assistance means that many people simply cannot access services, an issue also raised in Quebec. Organizations in Quebec indicated that a lack of financial support prevents them from providing a sufficiently broad range of services to their clients. Respondents in Manitoba highlighted low remuneration as a key reason why there are not enough immigration and refugee lawyers available. Finally, community groups in New Brunswick noted that insufficient funding means that some organizations have to rely exclusively on volunteers.

Levels of skill and expertise

The shortage of lawyers with expertise in immigration and refugee law issues was raised as an area of concern by community groups in B.C., Manitoba, Nova Scotia and P.E.I. A respondent in B.C. further commented that IRB members do not receive sufficient training. Respondents in Nova Scotia indicated that there is a lack of trained translators in the province. A Newfoundland community organization representative suggested that greater consistency in terminology would help ensure greater consistency in service delivery. In Quebec, one respondent suggested that community organization staff who handle immigration and refugee law issues do not receive enough training (although two other respondents expressed the opposite view, as noted below).

Barriers confronting refugees

Respondents in B.C. and Nova Scotia both commented that the refugee processing system takes far too long and is subject to unreasonable delays. Insufficient levels of language and employment training services for refugees were also highlighted in B.C. and Quebec, while community organization representatives in Alberta noted that there are no organizations that have an explicit mandate to assist refugees in the province. Quebec respondents pointed out that there are too few services available for refugees. Organizations in Nova Scotia commented that the absence of a local IRB creates additional obstacles for refugee claimants.

Language and cultural barriers

Community organization respondents in Saskatchewan indicated that the justice system, overall, is poorly equipped to deal with people whose first language is not English. A Quebec organization suggested that it is too difficult to access services in English in the province, while Ontario agencies commented that legal aid is not sufficiently culturally or linguistically sensitive.

Use of call centres

Community organization respondents from Quebec and New Brunswick raised concerns about the use of call centres. They felt that a key weakness of this approach is that callers cannot speak to the same person about their case on subsequent calls.

Lack of co-ordination

Community organization representatives in Newfoundland said there is a need for more co-ordination among players in the immigration and refugee law system, including governments, legal aid and community groups. More co-ordination would better permit each of these to play the role at which they are best, leading to more efficient and effective client services.

Success stories

Table : Thematic Success Stories

As indicated by the above table, far fewer success stories were highlighted by community organizations interviewed in the ten provinces.

Approaches to service delivery

Community organization respondents in B.C. pointed to the availability of initial reception services as a positive feature (although this comment pertains more to settlement than legal services). In Manitoba, respondents highlighted the role played by the Interfaith Immigration Council in case file preparation as a success story. In Ontario, a respondent noted that the use of legal aid opinion certificates as a means of establishing merit is working well.

Co-operation and collaboration

Community organizations in several provinces pointed to co-operation and collaboration between legal and community groups (Manitoba, Ontario) and among community groups themselves (B.C., Quebec, P.E.I.) as a positive feature of the current immigration and refugee law system.

Levels of skill and expertise

Two respondents in Quebec indicated that community organization staff are well trained to provide the services they do in the immigration and refugee law area (although as noted above, one organization disagreed with this assessment).

Online resources

Respondents in Quebec and P.E.I. noted that the availability of online access to documents, forms, and statutes has been a positive development in the immigration and refugee law field.

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