An Analysis of Immigration and Refugee Law Services in Canada
Part One: Immigration and refugee law legal aid (continued)
At present, British Columbia has relatively comprehensive legal aid coverage for immigration and refugee law issues. However, the dramatic cuts to legal aid recently made by the provincial government are expected to have a serious impact on this (and all other) areas of legal aid service provision. Most notable in the immigration and refugee law area are the scheduled closure of the Immigration and Refugee Clinic (IRC) as of August 31 2002 and an anticipated 20 percent reduction in the immigration and refugee law tariff. While the provincial government has committed to maintaining some level of legal aid services for refugees and immigrants through a roster of private bar lawyers, the range of available assistance will likely be much more limited.
As a result of the erosion of legal aid funding in B.C., legal aid plan staff members were all very busy with restructuring and service delivery planning. This not only significantly complicated efforts to access data from staff for the purposes of this project, but also influenced the mood of respondents and the interpretations they provided regarding the strengths and weaknesses of the legal aid system in B.C.
The following discussion provides an overview of the services and coverage available for immigration and refugee law matters in B.C. prior to recent (and ongoing) changes. It is important to highlight that an accurate assessment of the situation confronting refugees and immigrants in B.C. will require further review of the legal aid services that remain after all of the cuts and program changes have been implemented.
STRUCTURE OF LEGAL AID
Delivery of services
Legal aid is the responsibility of the Legal Services Society (LSS) of B.C. LSS delivers legal aid services through a network of branch offices, community law offices, Native community law offices, and area directors:
- Branch offices are staffed by LSS employees, including lawyers, paralegals, secretaries, and intake legal assistants. These offices ensure ongoing community involvement through local advisory committees and/or public planning days.
- Community law offices and Native community law offices are independent bodies governed by their own boards of directors drawn from the local community.
- Area directors are private bar lawyers who take family and criminal legal aid applications and refer eligible applicants to lawyers.
Eligibility for legal aid
For all areas of legal aid, applicants' net monthly household income and asset levels must be below established limits to be financially eligible for assistance. Intake workers assess an applicant's financial assets and liabilities to determine net household income. Some income sources are excluded (e.g., the Child Tax Benefit), and some expenses are deducted (e.g., child care costs). There are five asset categories: family home, other real property, vehicles, business assets, and personal property.
|Household Size||All non-criminal cases* (including appeals)||Personal Property exemption (all cases)|
|7 or more||$2,486||$6,000|
* Income limits are slightly lower for criminal cases (including appeals).
Source: Legal Services Society 2000-2001 Annual Report.
Applicants who meet the financial eligibility criteria must also have a legal issue for which legal aid coverage is available. In general, legal aid coverage will always be provided if there is a risk of imprisonment, confinement, or removal.
According to respondents, legal aid in B.C. does not automatically require applicants for legal aid coverage in an immigration or refugee law matter to undergo merit screening at the time of application. Merit is considered only for certain Immigration Appeals (referrals for Judicial Review where a formal hearing is held in Federal Court), and for Post-Determination Refugee Claimants in Canada Class.
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 B.C.
|Type of Service||Provision of this Service|
|General Advice or Assistance||Yes. This may include referring clients to other organizations or providing them with self-help or educational materials.|
|Legal Advice or Assistance||Yes. This may include advice on legal processes, rights and responsibilities, or direction on a specific client case.|
|Legal Representation||Yes. According to estimates from the Immigration and Refugee Clinic, private lawyers handle 90 percent of immigration/refugee cases, with staff lawyers handling the remaining 10 percent.|
|Duty Counsel Representation||Yes. This service is provided only by private bar lawyers.|
|Public Legal Education||Yes. Legal aid produces a wide range of public legal education documents.|
|Translation or Language Assistance||Yes. Translation and/or interpretation services are offered as a disbursement item. Interpretation at the preparatory stages of a case is also provided by paralegals at the IRC.|
Summary advice and brief services are provided by three staff lawyers, one paralegal and two support staff employed at the IRC on a non-tariff basis. Summary advice covers applicants who are not referred to a lawyer or paralegal, but receive assistance in the form of legal information or referral to another agency. Brief service is a form of intake assistance through which people can receive up to three hours of summary legal advice or information. Applicants do not have to be financially eligible to receive this kind of assistance.
|Fiscal Year||Number of Applications Received||Number of Clients Receiving Summary Advice or Information|
Source: Legal Services Society 2001 Annual Report.
The IRC representative emphasized the importance of the summary advice and brief service components of the work of IRC staff. Frequently, people who are confused about their situation (for example, with respect to whether or not they have a legal claim) are often referred to the IRC. The IRC is currently housed in the same building as a legal aid intake office, so an effective system of cross-referral has developed. For example, if a person comes to the intake office but does not know enough about their situation to be appropriately processed, intake staff can send the person to the IRC for some initial advice. This system saves time by facilitating the appropriate processing of clients.
With the scheduled closing of the IRC, legal aid respondents in B.C. felt that the services available through legal aid will be much more limited. The concern is that immigration and refugee legal aid will be confined to intake for full representation cases only, with no staff to answer questions or provide advice, given that the IRC is currently the only office to which refugees and immigrants can come for this kind of assistance. At present, the advice function of the IRC is not limited to potential or actual legal aid clients. Staff respondents also noted that they field a lot of requests for information from community organizations. The IRC tries to be as comprehensive as possible in responding to community group inquiries, and will often "go the extra mile" by not only dispensing advice but also collecting and mailing out a package of relevant information.
Interestingly, the program reduction exercise undertaken by LSS suggested that service reductions following the closure of the IRC would not be substantial. In reviewing the IRC, LSS concluded that this office was not only more costly and less effective than the current private bar tariff service, but also that the bulk of the services being provided to refugee claimants through the IRC are in tariff matters - a function that would naturally be absorbed by private bar lawyers (and, perhaps with it, responsibility for providing summary advice). Based on these conclusions, refugee clients would not experience any clear reduction in services with the elimination of the IRC, but rather only a shift in the service provider. The only clear reduction in available services would be to the community organizations and clients who depend on the IRC for legal information, unless this function would be absorbed through the various public legal education service centres operated by LSS. What remains at issue, however, is the fact that private bar lawyers are being asked to do more with less, with possible impacts on the quality of the services provided. Also of concern is the LSS's intention to stop issuing immigration and refugee legal aid certificates at some point unless federal-provincial jurisdictional problems about legal aid funding are resolved.
Legal representation is available through both legal aid offices and the IRC. As noted in the above table, private bar lawyers handle the bulk of immigration and refugee law cases on a tariff basis. Clients may request the services of either a staff lawyer at the IRC or a private bar lawyer, and are entitled to representation from the lawyer of their choice. However, if a client does not request a particular lawyer, they are informed of the IRC option. The IRC employs only three staff lawyers, and an estimated 85-90 percent of their work time is spent on tariff-based activities. The remaining 10-15 percent is spent on advice, information requests, and public legal education activities.
There are no formal differences in the legal representation provided by staff and private bar lawyers, since both cover what is included in the immigration and refugee law tariff structure. However, the IRC respondent noted that IRC staff lawyers do not have to adhere as closely to the tariff structure's restrictions on billable hours of work as private bar lawyers. IRC lawyers generally have more latitude to "work a case as much as it needs," and thereby have a great deal more flexibility than private bar immigration and refugee lawyers working on a certificate basis.
According to a representative of the immigration subsection of the Canadian Bar Association (CBA), tariff-based time and remuneration limits pose an obstacle for private bar immigration and refugee lawyers. Although an estimated 80 percent of cases are in fact completed within prescribed limits, the coverage available within this structure is basic at best. In the respondent's view, most lawyers would agree that current tariff levels and hours are insufficient to provide quality services to refugees and immigrants. With an estimated 20 percent cut in the immigration tariff expected, the ramifications for what is already minimal coverage will be significant. The CBA respondent also noted that a 20 percent tariff reduction will necessarily impact the services currently available to refugees, since the largest proportion of legal aid work undertaken in immigration and refugee law concerns refugee claimants. Reduced services for refugees is an area of particular concern for two reasons. First, the complexity of determination and review hearings makes the availability of legal counsel particularly pressing; and, second, language and cultural barriers, combined with the psychological stresses created by the difficult circumstances many refugees have fled, undermine their ability to navigate the legal system without assistance.
|Fiscal Year||Number of Applications Received||Number of Successful Applicants Referred to:|
|Staff lawyers||Private bar lawyers||Total|
Source: Legal Services Society Immigration and Refugee Fact Sheets and LSS 2001 Annual Report.
In 2000-2001, 6.0 percent of all legal aid referrals were for immigration and refugee law matters, compared to 7.7 percent in 1999-2001 and 6.0 percent in 1998-1999.
A limited amount of legal representation for immigration and refugee law matters is provided through legal aid duty counsel. The duty counsel services are provided for detention reviews, and are much less formal and structured than those available in criminal and family law, where lawyers are paid to staff certain courthouses. The immigration section of the CBA organizes the duty counsel service. A select roster of lawyers is on-call. There is an agreement with LSS that certificates are issued retroactively to these lawyers for detention review cases. To help overcome cultural barriers, all client-lawyer contact is face to face. The service provided by the duty counsel lawyer can go beyond strict duty counsel service because, if the client wishes, the same lawyer will do the inquiry to ensure the continuity of counsel.
Public legal education
"education, advice and information about law are provided for the people of British Columbia" is an objective in the mandate of the LSS. Accordingly, LSS staff in the Legal Resource Centre, the Public Legal Education and Publishing Programs, and the Native Programs Department, provide a wide variety of services to improve public access to and education about the law. These include the publication and distribution of education and self-help materials, hosting workshops and training sessions, and assisting people with legal questions. LSS notes that the public legal education materials and activities fill a number of key needs: they provide staff with updated legal information and resources to use in the provision of services; they provide the public with information and/or self-help materials to assist with their legal problems; and they help new arrivals in Canada to learn about the legal system and access to legal aid services.
LSS also operates a Public Legal Education (PLE) Program. This program provides small grants to community groups, legal aid offices, and LSS-funded agencies in B.C. to develop projects and materials that explain the law and legal system to community members and client groups. In 2000-2001, the program approved 48 projects, as well as helping another 35 groups to complete projects initiated in previous years. Expenditures on the PLE program in 2000-2001 were $571,361 - 0.7 percent of the total expenditures of LSS.
Finally, LSS is responsible for running the Law Line, a legal information telephone service provided by law librarians for the general public. In 2000-2001, Law Line personnel responded to 12,615 requests for assistance.
With respect to IRC's public legal education work done in the immigration and refugee law area in particular, an IRC representative noted that it has occasionally produced written materials in co-operation with other community groups. The IRC also employs one paralegal who participates in networking activities within the broader community, enabling IRC staff to keep up with community needs and concerns, and to share information about legal and policy developments.
Translation or language assistance
Translation and interpretation is a disbursement item for which private bar or staff lawyers can bill, up to a certain maximum. In addition, the IRC employs one paralegal with skills in a number of languages. This person is involved in the preparatory stages of case files, where language skills are essential for establishing effective communication with clients. The IRC respondent suggested that the use of a paralegal in this capacity is likely a cost-savings measure: multilingual preparatory work not only reduces translation and interpretation expenses, but having staff capable of conversing with clients in their own languages often yields better and more complete case files.
Due to the major changes to legal aid currently under way in B.C., the amount of data that LSS staff were willing and/or able to collect for this project was limited. The data system in B.C. would likely permit the collection of separate case counts for each stage of the immigration and refugee law process, although various sub-components of these stages may not be broken out. Some data is also available on the number of cases handled by staff lawyers versus the number handled by private bar lawyers, but there is no specific data for paralegals (though this is a very small component of service delivery). The duty counsel component of immigration and refugee law legal aid services is not tracked separately. For certain stages of immigration and refugee law cases, files can likely be broken down by age, sex, and country of origin.
Despite the fact that separate statistics are kept on most stages of immigration and refugee law cases, the only stages for which data was made available for this project are Convention Refugee Determination Division (CRDD) preparation and hearing attendance, and Immigration Inquiry (II) preparation and hearing attendance. In 2000-2001, the 1,844 cases involving preparation for and attendance at CRDD and II hearings comprised 60.5 percent of all immigration and refugee law cases in B.C. This makes CRDD and II hearings by far the largest component of the work done under legal aid in the immigration and refugee law area.
Private bar lawyers conducted all of the CRDD and II hearing preparation and attendance in 2000-2001. CRDD and II hearings constituted 66 percent of all of the immigration and refugee law cases handled by private bar lawyers in that fiscal year.
|Total CRDD and II cases||SEX||AGE||Cost|
|Women||Men||18 and under||19-39||40 and over|
Source: Data collection charts for B.C.
As the table indicates, information was also provided concerning the characteristics of CRDD and II legal aid clients. As reflected above, there were almost twice as many men than women receiving legal aid for CRDD and II matters in 2000-2001, and almost 75 percent of clients in this area were between the ages of 19 and 39. The tables below present data on country of origin for cases involving preparation and attendance at CRDD or II hearings, as well as for all immigration and refugee law cases, in 2000-2001.
IMPRESSIONS ABOUT LEGAL AID COVERAGE AND SERVICE DELIVERY
One thing on which all respondents agreed - whether from LSS, the IRC or the CBA - is the need for more funding for legal aid in immigration and refugee matters. More funding would not only permit coverage of more issues and more cases, but it would also ensure that the services provided are of high quality. However, the respondents also recognized that the call for more funding is essentially fruitless in the current context, given that overall spending on legal aid is being cut back. Despite this recognition, many of the following comments about aspects of the legal aid system that are or are not functioning effectively hinge on the availability of an appropriate level of funding for these services.
Federal versus provincial responsibility for immigration and refugee legal aid
Some respondents raised the question of where responsibility lies for funding immigration and refugee legal aid. The B.C. Attorney General is arguing that the federal government should assume complete responsibility for funding immigration and refugee legal aid because immigration is an area of federal legislative responsibility. The IRC representative suggested that a positive repercussion of increased federal involvement in this area would be greater continuity in the legal aid coverage provided for immigration and refugee law both within and among the provinces. An LSS representative joined in raising concerns about jurisdictional division over funding, but noted that these "squabbles" are not new when it comes to legal aid funding for immigration and refugee law (and for other legal areas). In his words, "jurisdictional issues will simply not go away."
Tariff limits: time and remuneration
As already noted, time and remuneration limits for immigration and refugee law work are considered inadequate from the perspective of delivering high quality legal representation to clients. The majority of cases are completed within established limits only because the services provided are at a very basic level. For those cases that cannot be completed within the tariff structure, the amount of additional work needed varies quite widely. The CBA representative noted that some private bar immigration and refugee lawyers will pass a case that has reached tariff limits to another lawyer or refuse to put in extra time, but the majority do complete the additional (unpaid) work that is needed. In fact, the CBA respondent suggested that this practice is so common that many private bar lawyers are essentially operating pro bono clinics out of their offices. A representative of LSS agreed that many private bar lawyers are doing preparatory work with refugee clients on issues that are not specifically part of the tariff structure.
Staff lawyer versus private bar lawyer service delivery models
The IRC representative noted that there is ongoing debate within legal aid about the efficacy of the staff lawyer model of service delivery, with particular concern about the cost-effectiveness of this approach. This respondent suggested at the time of the interview that a staff lawyer approach to legal aid has never been subject to a comprehensive evaluation in B.C. due to the expense involved in undertaking such an endeavour. Without such an evaluation, there is no real foundation for the decision that cutting the staff lawyer and paralegal components of legal aid is the best way to achieve additional cost-savings. The respondent suggested that cuts in these areas reflect the fact that too little value is placed on the non-tariff aspects of legal aid services in general, and the provision of advice to clients and prospective clients in particular. However, now that an evaluation of the staff lawyer IRC office has been completed by LSS, it may be valuable to revisit this issue with respondents in future projects.
The IRC representative also noted that an ideal immigration and refugee legal aid system would be one that employs more, not fewer, paralegals for the preparatory stages of the legal process. As noted above, the language skills of current IRC paralegals are invaluable from the perspective of ensuring effective initial communication with clients and comprehensive preparation of case files. From this perspective, the incorporation of more paralegal services in the legal aid process would yield cost savings for the province.
Barriers confronting refugee claimants
A different kind of concern mentioned by one respondent is the "passive hostility" of Canada's refugee processing system. One respondent suggested that this is a particular problem in B.C., indicating there is a perception in that province that the government tends to discourage admitting refugee claimants. Hostility with the refugee system is particularly difficult for refugees to deal with, given that the majority are already in very precarious situations when they arrive, and do not have sufficient knowledge about or trust in the legal system to navigate it without assistance. In addition, this respondent noted that the unnecessarily adversarial character of the refugee processing system needlessly increases costs to legal aid, as well as increasing the likelihood that genuine refugees will be turned away.
The Immigration and Refugee Clinic model
As noted in other places, the IRC representative emphasized the importance and value of this office in delivering legal aid to refugees and immigrants in an effective and efficient manner, particularly in terms of providing non-tariff services like advice and public legal education.
Immigration and Refuge Clinic staff expertise
IRC staff have developed significant expertise in certain areas of law, as well as an excellent foundation of research on refugee source countries. This knowledge facilitates the operation of the IRC, since cases can be passed on to the IRC staff member with expertise in the relevant area, thereby helping to ensure that files are handled expediently and without duplication of previous work. The IRC representative noted that there is no similar provision within the private bar lawyer referral system to acknowledge or capitalize on particular areas of expertise.
Collaboration with other organizations serving refugees and immigrants
The IRC representative noted that the co-operative work that occurs between the IRC and other organizations serving refugees and immigrants is a positive feature of the existing system. At present, there is a good balance between the legal services offered by legal aid and the settlement services provided by other community groups. Once the impact of the legal aid cuts begins to register, however, this equilibrium may change. Organizations serving refugees and immigrants may be forced to take on more responsibility in the area of immigration and refugee law - services for which they are not particularly well suited, given the legal complexities and degree of expertise required.
 'Disbursement item' refers to an item or service for which a lawyer working on a legal aid certificate can claim expenses on a cost-recovery basis, usually up to certain maximums.
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