An Analysis of Immigration and Refugee Law Services in Canada

PART THREE: THE NATIONAL PICTURE

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. For the purposes of this summary, the four provinces that provide no legal aid coverage to refugees and immigrants - namely Saskatchewan, Nova Scotia, New Brunswick and Prince Edward Island - have been omitted.

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 Ltd Ltd Yes Ltd Ltd
Legal advice or assistance Yes Ltd Yes Yes Yes Yes
Legal Representation Yes Yes Yes Yes Yes Yes
Duty Counsel Representation Yes No No No No Ltd
Public Legal Education Yes No No Yes Yes Ltd
Translation or Language Assistance Yes Yes No Yes Yes Yes

As the above table indicates, all of the provinces that provide legal aid coverage for immigration and refugee law cases offer full 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.

Legal advice or assistance is almost as broadly available as legal representation, although the comprehensiveness of advice programming varies considerably by province. For example, legal advice is offered in Newfoundland, but, since there are only two immigration and refugee law staff lawyers in the province, the amount of assistance actually available is much more limited than in provinces like B.C. and Ontario. In Alberta, legal advice is only available through the Immigrant Services Co-ordinator - a pilot project paralegal position staffed by a single person at present.

Translation or other forms of language assistance are also widely available through provincial legal aid plan offices, with Manitoba being the only exception. Clients in need of language assistance in this province are referred to the Manitoba Interfaith Immigration Council. In the other provinces, translation or language assistance is typically offered by legal aid programs on a disbursement basis, although paralegals or other staff in B.C. and Ontario also provide some services in this area. In Newfoundland, legal aid hires interpreters or translators as necessary.

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 - its network of Community Legal Clinics. In B.C., general advice or assistance in immigration and refugee law cases is primarily delivered through the Immigration and Refugee Clinic, but this office is scheduled for closure in August 2002. A limited amount of general advice or assistance is available in Alberta, Manitoba, Quebec and Newfoundland, but none of these provinces has an established system for delivering this kind of service in the same sense as B.C. and Ontario.

Duty counsel representation does not tend to be available for immigration and refugee law matters. Only B.C. has a formal system in place for providing duty counsel services in immigration and refugee law matters, and even this system operates on a referral basis and only in Vancouver. Staff lawyers in Newfoundland occasionally provide some duty counsel coverage by virtue of the fact that they are known to Citizenship and Immigration Canada officials, and can, accordingly, be contacted when appropriate. Some duty counsel coverage may be available in Alberta and Manitoba in cases where criminal and immigration and refugee law matters overlap, but this is not an established area of legal aid programming.

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, Detention Hearings, Federal Court Judicial review and appeals, and Supreme Court Appeals. Of these areas, Convention Refugee Determination is the area in which legal aid plans receive and complete the most cases. Detention Hearings happen for only a fraction of the total number of refugees and immigrants, and Federal Court cases and Supreme Court cases are quite rare.

The universal availability of legal aid for Convention Refugee Determination matters dovetails with comments about the importance of making legal services available to refugees. Respondents from several provinces noted that refugees are in a particularly vulnerable position vis-à-vis the legal system, given that they are often arriving with few or no resources, little trust in government or the legal process, and a great deal of psychological and physical stress. In addition, the legalistic nature of Determination hearings and other refugee proceedings makes it particularly difficult for newcomers to Canada to negotiate the system without legal assistance. Accordingly, the availability of legal aid for refugee matters is a crucial element in the immigration and refugee legal aid system.

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 Determination, 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 in such matters. The importance of legal expertise in certain immigration and refugee law proceedings was acknowledged by several of the community organizations serving refugees and immigrants that were interviewed in provinces both with and without legal aid coverage. As will be discussed further below, respondents from these agencies noted that their staff are more likely to assist clients with procedural matters like the filing of Humanitarian and Compassionate applications or Post-Determination Refugee Claimants in Canada Class applications. [12] In fact, respondents from legal aid in Quebec noted that coverage is not provided in that province for Humanitarian and Compassionate applications, Post-Determination applications or Danger Opinions because they are considered administrative, not legal, processes.

After Convention Refugee Determination, 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 this area; with respect to 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, although Alberta may extend coverage in this area, subject to a favourable legal opinion. Alberta extends the same discretionary coverage for S. 27 Inland violations of the Act, as does Manitoba. Quebec is the only province that provides regular coverage in this area. Interestingly, representatives from Legal Aid Ontario commented that while coverage is technically available for eligibility determinations, in reality there are few cases because most claimants are found eligible. If eligibility testing becomes more stringent under new immigration legislation, legal aid may consider extending coverage in this area. Legal aid representatives in Newfoundland reported that staff seldom know about immigrants or refugees until they have been through Port of Entry and Inland Claims processes - a key reason why assistance is generally not provided at these early stages.

Coverage for cases in the remaining four immigration and refugee law areas - Humanitarian and Compassionate, Post-Determination Refugee Claimants in Canada Class, Danger Opinions, and International Tribunal appeals - is more varied across the provinces. As noted above, however, Humanitarian and Compassionate applications and Post-Determination applications are areas in which community organizations provide some assistance.

IMPRESSIONS ABOUT LEGAL AID COVERAGE

The following tables summarize the problem areas and success stories mentioned by legal aid plan respondents when asked about things that were working well, things that were not working well, and key gaps in the current system for delivering services to refugees and immigrants in their provinces.

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

In terms of problems in approaches to service delivery, several issues were mentioned. Respondents from B.C. raised the ongoing question of whether staff lawyers or private bar lawyers deliver services in a more efficient and effective manner. This issue is of particular concern at present, given that staff positions are being eliminated in B.C., with resulting implications for the availability of advice and public legal education. 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 situation in that province in which private bar lawyers have been unwilling to permit legal aid 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 in general) as a source of concern - and a problem that will be exacerbated by the recent round of cuts implemented by the provincial government. Ontario is also concerned about the lack of funding for immigration and refugee legal aid, particularly in light of the perceived increase in the volume of cases in the province. The constraints imposed by tariff structures were raised as an issue by respondents in B.C. and Manitoba, while Newfoundland pointed to the limited staff resources available for immigration and refugee law as a key reason for delays in the processing of cases. Legal aid representatives in B.C. also raised the issue of the federal-provincial jurisdictional debate over responsibility for the funding of immigration and refugee legal aid (an issue that was noted by respondents in 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, largely due to the difficulty of recruiting private bar lawyers to handle cases in the province. Respondents from Ontario also pointed to gaps in coverage, in terms of issues for which no legal aid is available, and inconsistencies among Community Legal Clinics in terms of the issues covered and the geographic distribution of services.

Barriers for refugees

Respondents in B.C. emphasized that refugees often confront an unwelcoming and overly adversarial system upon arrival in the province.

Lack of language assistance

Respondents in Ontario noted that there are not enough resources for language assistance at Community Legal Clinics.

Low demand

Respondents in Newfoundland and Labrador indicated that there is little demand for immigration and refugee law services in the province. Because of the low demand the Legal Aid Commission does not offer certain kinds of services even though they would be advantageous and would improve the quality of the assistance available to clients (e.g., internal capacity for translation and interpretation).

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 interviewed in the provinces that provide 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. Despite the fact that the IRC is scheduled for closure in August 2002, the specialized paralegals and staff lawyers at this office provide valuable assistance in non-tariff areas, and comprise a comprehensive body of knowledge about refugee source countries that permits more efficient processing of cases. Similarly, respondents in Newfoundland insisted that staff lawyer services are less expensive, given that staff lawyers can focus on providing the amount of work needed on a case without worrying about tariff limits or the income required to cover overhead expenses.

Representatives of legal aid in Ontario highlighted the success of both the Refugee Law Office and Community Legal Clinics, in terms of being effective models for the delivery of legal aid services to refugees and immigrants (noting as well the current expansion of the clinic network). One Ontario respondent also suggested that the use of merit testing is an effective means of ensuring that services are delivered to those who most need assistance.

Respondents in Alberta suggested that the pilot project position of Immigrant Services Co-ordinator has been a success to date. Clients are able to access a new range of services (notably advice, even for those who have been denied legal aid coverage). Private bar legal aid lawyers receive assistance with the preparation of case files, thereby allowing cases to be handled more efficiently within the limits of the tariff structure.

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.


[12] One possible exception to this is assistance with the preparation of Personal Information Forms, an activity that quite a few organizations would provide (especially in Quebec).

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