An Analysis of Immigration and Refugee Law Services in Canada

Part One: Immigration and refugee law legal aid (continued)

Newfoundland and Labrador

STRUCTURE OF LEGAL AID

Delivery of services

Legal aid in Newfoundland is administered by the Legal Aid Commission (LAC). Services are delivered through a network of regional offices and area directors. There are ten regional offices, eight of which have area directors who are responsible for issuing legal aid certificates.

Newfoundland has a mixed staff lawyer and private bar lawyer (judicare) service delivery model, but staff lawyers provide the majority of services in the province. In the early 1990s, legal aid switched from a predominantly private bar lawyer service delivery model to a staff lawyer model (although private bar lawyers are still used occasionally for some cases). According to respondents, the reasons for this shift were primarily economic. It was felt that staff lawyers were able to handle cases more cheaply and efficiently than private bar lawyers, and that less administrative work was required to support the work of staff lawyers. In the immigration and refugee law area, two staff lawyers in St. John's handle all cases.

Lawyers deliver all legal aid services in Newfoundland. Paralegals or other legal professionals are not involved in either legal representation or the provision of advice, although intake workers process the financial eligibility component of legal aid applications. Applicants who are refused legal aid coverage may appeal the decision to the province's Legal Aid Director, and then to an Appeal Board composed of LAC members.

Eligibility for legal aid

Eligibility for legal aid is based on both financial and merit considerations.

In terms of financial eligibility, persons receiving social assistance are automatically eligible. Other applicants are also considered financially eligible if

  1. they cannot retain private counsel without having to dispose of assets necessary to maintain their livelihood;
  2. they cannot retain private counsel without impairing their ability to keep themselves and any dependants adequately fed, clothed, sheltered, and living as a family; or
  3. they are without funds and require immediate legal assistance to preserve their legal rights.

In civil matters, decisions about granting legal aid coverage also consider

  1. the possibility of success;
  2. the cost of proceeding relative to the anticipated loss or recovery; and
  3. the likelihood of enforcing the judgment.

TYPES OF SERVICE PROVIDED IN IMMIGRATION AND REFUGEE LAW ISSUES

The following table describes the types of services available for immigration and refugee law matters in Newfoundland.

Type of Service Provision of this Service
General advice or assistance Some advice is provided by staff lawyers, typically concerning immigration matters.
Legal advice or assistance The two staff lawyers who work on immigration and refugee law cases also review completed forms and answer questions from private bar lawyers.
Legal Representation Two staff lawyers provide legal representation in immigration and refugee law cases.
Duty Counsel Representation Some duty counsel assistance may be provided on an informal basis.
Public Legal Education Little.
Translation or Language Assistance Legal aid will hire translators/interpreters as needed.
Advice

The two legal aid staff lawyers who deal with immigration and refugee law cases will provide general and legal advice, but there is no established program in this area. The advice that is provided typically concerns immigration issues. Advice is practically a moot point with respect to refugee claims since virtually all applicants are granted coverage for legal representation. The respondent noted that legal aid staff lawyers do get relatively regular calls from private bar lawyers with questions concerning immigration matters, and they try to provide assistance. In addition, although legal aid staff lawyers will not complete Humanitarian and Compassionate or Post-Determination Refugee Claimants in Canada Class applications, they will review completed forms and offer suggestions.

Legal representation

Two legal aid staff lawyers provide legal representation for immigration and refugee law matters. These lawyers do not work exclusively in the immigration and refugee area, but rather have a mixed practice that also includes criminal, family, and poverty law cases. The respondent estimated that they handle approximately 60-70 immigration and refugee law cases each year. This constitutes a small proportion of the work done by legal aid, as a whole. The number of immigration and refugee law cases was much larger in the early 1990s, but the number of clients declined significantly when the federal government imposed transit fees at Gander Airport.

The majority of immigration and refugee law legal aid cases concern Convention Refugee Determination (estimated by the respondent at 90 percent). Very few applicants for assistance with refugee claims are denied coverage by legal aid. Financial eligibility is typically not a significant issue, since most applicants are receiving social assistance (which entails automatic eligibility). Merit considerations are also addressed for immigration and refugee law cases. The legal aid representative noted that likelihood of success is a particularly important consideration, and is evaluated by the two staff lawyers, based on their experience with immigration and refugee law cases. Overall, it is very rare that refugee claimants are denied legal aid coverage on a merit basis.

The legal aid respondent noted that many referrals for legal aid assistance in the immigration and refugee law area come from settlement organizations or directly from Immigration Department officers.

Duty counsel

There is no formal program in place for duty counsel assistance with immigration and refugee law matters, but Citizenship and Immigration Canada officials will occasionally call one of the two legal aid staff lawyers to come down and assist a person in need of legal representation. According to a respondent, this happens so rarely that there is no need for a formal system. However, this representative also noted that if the number of people in need of duty counsel assistance were to increase, a more formal system might have to be worked out. At present, the staff lawyers are known in the community, so Immigration Department officials know whom to call.

Public legal education

Legal aid does not provide a great deal of public legal education in the immigration and refugee law area. There is no established program in place, and legal aid does not produce any written materials or publications. However, the two staff lawyers are involved with some community organizations and activities and, in this capacity, have helped to organize conferences and informational or speaking events. Lawyers will also offer to speak at schools, but this is not something that happens very often - immigration and refugee law is not a visible or high priority area in Newfoundland, given the low number of people arriving. Some of the community and educational activities of staff lawyers are provided in a volunteer capacity, but a respondent noted that legal aid is "quite forgiving" about this kind of work.

Language assistance

At present, legal aid has no translators or interpreters on staff for immigration and refugee law work. In the past there was a staff translator, but the small number of cases handled now means that such a position is no longer warranted. Staff lawyers will hire translators and interpreters as necessary, with Russian being the language currently most needed. The respondent did note that it can be difficult to find local resources for some languages, with the result that they have to rely on telephone conversations with translators/interpreters in Ontario.

COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES
Stage Activity Legal Aid Coverage
Port of Entry S. 20 Admissibility Interviews No. Legal aid rarely learns about claimants until initial government processing has been completed. In rare circumstances, legal aid lawyers may be involved in the initial processing of claimants.
Eligibility determinations No.
Inland Claims S. 27 Inland Violations of the Act Yes#.
Eligibility Determinations No.
Convention Refugee Determination Division Personal information form preparation Yes. CRDD cases as a while are the primary area for immigration and refugee law work.
Determination Hearings (preparation and attendance) Yes.
Other Hearings (preparation and attendance) Yes.
Immigration Appeals Division Appeals Yes#.
Adjudication Immigration Inquiries Yes#.
Detention Hearings (first and other instances) Yes, but this is rare because persons are detained very infrequently. There is no detention facility at the local Immigration office, so the provincial penitentiary is the only option. In addition, the respondent noted that it is hard to get off the island, which makes for a different climate than somewhere like Ontario.
Humanitarian/Compassionate Applications Yes#.
PDRCC Applications No (although a staff lawyer may review completed forms).
Danger Opinions* Submissions to the Minister There has never been a case in this area. If one arose, lawyers would consider handling it because cases in this area typically involved important issues around removal.
Federal Court Judicial Review and Appeals Yes. This is a small component of the work done by staff lawyers.
Supreme Court Appeals There has never been a case in this area. The respondent noted that lawyers would like to cover a case if it arose.
International Tribunals Appeals There has never been a case in this area. The respondent noted that it is unclear whether cases in this area would be covered. It was suggested that the arguably limited efficacy of such appeals may not warrant coverage.

* Formerly Appeals to Citizenship and Immigration Minister.
# Respondents described the availability of coverage for cases in these areas as "discretionary".

No data was collected from legal aid representatives in Newfoundland.

IMPRESSIONS ABOUT LEGAL AID COVERAGE AND SERVICE DELIVERY

Problem areas
Lack of staff leading to delays

One respondent from legal aid in Newfoundland noted that, with only two staff lawyers working in the immigration and refugee law area, time constraints sometimes pose a problem. This representative noted that meritorious cases are not turned down as a result of these constraints, but delays in the processing of cases often occur. Delays are particularly common in the first stage of refugee claims - the completion of the Personal Information Form (PIF). However, the respondent noted that staff lawyers have a good relationship with the IRB in Ottawa (the primary Board that hears refugee claims from Newfoundland) - this Board is familiar with the situation in Newfoundland, and will frequently give legal aid lawyers extensions for the PIFs. According to a respondent, the Montreal IRB also sometimes hears Newfoundland claims.

Low number of cases

One respondent from Newfoundland noted that some of the problems of the current immigration and refugee law system arise because only a few cases are received in this area. For example, staff lawyers with a mixed practice find it difficult to fit the large amount of research and preparatory work required by refugee claims into their workload - when they are also juggling criminal, family, and poverty law cases. In addition, the respondent noted that it would be nice to have a translator on staff, as in the past when the immigration and refugee law caseload was higher, although it was acknowledged that current numbers do not warrant such a position. Finally, while this representative pointed out that there is no real need for a sitting IRB in Newfoundland, the absence of such a resource locally means that staff lawyers do not have regular access to the resources available through Board offices (e.g., documentation centre, library).

Success stories
Staff lawyer service delivery model

According to one respondent, the greatest strength of the legal aid system in Newfoundland is that it relies almost entirely on staff lawyers. The respondent claimed that staff lawyers are able to provide more efficient and higher quality services at a lower cost than the private bar lawyers previously relied upon in this province. Because staff lawyers are doing regular work in the immigration and refugee law area, they are quickly able to build up research and expertise. This knowledge assists in the provision of quick and high quality services in future cases. Private bar lawyers tend to handle only a few immigration and refugee law cases a year. They are less able to keep up with legislative or country changes, or to develop the kind of experience gained from daily exposure to a set of issues.

Second, the fact that staff lawyers do not operate on a certificate basis means that they can exceed - or not use up - the time allotted to particular legal issues through a tariff system. In essence, staff lawyers can devote the amount of time to a case that it needs. Conversely, private bar lawyers will sometimes bill for the entire tariff amount regardless of the amount of time needed, because of the overhead and support staff costs they must cover. In addition, private bar lawyers are less likely to put in additional work beyond tariff limits, due to the lack of remuneration.

Overall, the Newfoundland respondent suggested that staff lawyers can complete cases in about half the amount of time a private lawyer would take because they "can concentrate on the law and not on paying the bills."

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