An Analysis of Immigration and Refugee Law Services in Canada
Part One: Immigration and refugee law legal aid (continued)
STRUCTURE OF LEGAL AID
Delivery of services
In Manitoba, the Legal Aid Services Society (LASS) is responsible for delivering legal aid services to provincial residents through a mixed staff lawyer and private bar lawyer (judicare) model. Both staff and private bar lawyers operate on a certificate basis, and clients are permitted to choose representation from either source. In the immigration and refugee law area, private bar lawyers now provide all legal representation, as staff lawyer services in this area were terminated one year ago.
If a legal aid client does not choose a lawyer, one is appointed by the legal aid area director. Area directors are also responsible for reviewing applications, assessing partial payments, and issuing legal aid certificates. In addition to certificate-based representation, staff lawyers and paralegals provide informal legal advice and information, particularly in the area of poverty law.
Eligibility for legal aid
For certificate cases, eligibility is determined according to financial and merit criteria. There are no eligibility requirements for informal drop-in services.
Financial eligibility guidelines consider family income and household size in the development of income thresholds. However, persons earning more than the guidelines may still be eligible for legal aid based on consideration of other factors. For example, legal aid may extend coverage to persons with income in excess of the financial eligibility guidelines on a deferred repayment basis.
Applicants are eligible for legal aid in one of three ways: without having to pay anything (fully eligible); having to pay an agreed upon amount covering part of the legal aid costs (agreement to pay); or having to pay the full cost of the case and a program fee (expanded eligibility). Some expenses - such as maintenance or child care - are deducted from income. Assets are also considered in the assessment of financial eligibility.
|Family Size||Fully Eligible (annual gross)||Agreement to Pay (annual gross)||Expanded Eligibility (annual gross)|
|More than 6||$37,000||$39,000||$43,000|
Source: Legal Aid Manitoba Web site (www.legalaid.mb.ca).
Legal Aid Manitoba notes that the figures in the above table are guidelines only. Each case is considered individually and, in general, legal aid is guided by the goal of providing access to affordable legal services to the working poor.
Since 1997, there is a $25 processing fee charged to legal aid clients. Several classes of applicants are not required to pay this fee - most notably, social assistance recipients. LASS staff also have the discretion to extend legal representation on a "certificate equivalent" basis if they believe that a client would be eligible for legal aid but do not want this person to have to submit a complete application and incur the processing fee. In 2000-2001, there were 4,753 certificate equivalent cases in Manitoba.
TYPES OF SERVICE PROVIDED IN IMMIGRATION AND REFUGEE LAW ISSUES
The following table describes the types of services available for immigration and refugee law issues in Manitoba.
|Type of Service||Provision of this Service|
|General advice or assistance||Yes, but only to a limited degree through drop-in consultations of 15 to 30 minutes.|
|Legal advice or assistance||Yes, but only to a limited degree through legal opinions provided by private bar lawyers.|
|Legal Representation||Yes. Private bar lawyers provide all legal representation in immigration and refugee law cases.|
|Duty Counsel Representation||No. Very limited assistance may be available through criminal duty counsel.|
|Public Legal Education||No. Public legal education is provided through the Community Legal Education Association (CLEA). |
|Translation or Language Assistance||No. Clients are referred to the Manitoba Interfaith Immigration Council. |
Legal aid offers a drop-in service (15-30 minute consultations) through which persons can get very limited basic advice and information on a variety of matters, including immigration and refugee law. Staff lawyers and supervised paralegals are involved in providing this service. In addition to providing information, persons may be referred to other community organizations serving refugees and immigrants, most notably the Manitoba Interfaith Immigration Council in Winnipeg.
Once legal aid has provided clients with basic assistance, they may be referred to a private bar lawyer for a legal opinion. Through this more comprehensive consultation, clients may be given legal advice about their particular case, and what their rights and options are. It is on the basis of a legal opinion that decisions about legal aid coverage are made.
As noted above, private bar lawyers provide all legal representation for immigration and refugee law cases. Staff lawyers were previously involved in this area, but service was discontinued approximately one year ago. The data included below for cases handled by legal aid staff lawyers covers only those cases that are still ongoing since the termination of the staff lawyer service in the immigration and refugee law area.
There are no duty counsel services explicitly directed towards the immigration and refugee law area. If a person has been arrested and is facing a criminal charge, they may receive some limited assistance through the criminal duty counsel program.
Public legal education
Legal aid does not offer any public legal education in the area of immigration and refugee law. However, the LASS respondent noted that there is a great deal of information and educational material available through the Community Legal Education Association (CLEA), so applicants are often referred to this organization for assistance. CLEA also runs the lawyer referral service for Manitoba.
COVERAGE OF IMMIGRATION AND REFUGEE LAW ISSUES
|Stage||Activity||Legal Aid Coverage|
|Port of Entry||S. 20 Admissibility Interviews||No.|
|Inland Claims||S. 27 Inland Violations of the Act||Coverage is provided if there is a criminal charge that may affect the status of the immigration/refugee claim. Coverage is not provided in instances where there is no accompanying criminal charge.|
|Convention Refugee Determination Division||Personal information form preparation||Yes. The Manitoba Interfaith Immigration Council completes these forms, with the costs being covered by legal aid.|
|Determination Hearings (preparation and attendance)||Yes.|
|Other Hearings (preparation and attendance)||Yes.|
|Immigration Appeals Division||Appeals||Yes.|
|Detention Hearings (first and other instances)||Yes.|
|Danger Opinions1||Submissions to the Minister||No.|
|Federal Court||Judicial Review and Appeals||Yes.|
|Appeals to International Tribunals||No.|
1 Formerly Appeals to Citizenship and Immigration Minister.
Legal Aid Manitoba classifies immigration matters as either Port of Entry (pertaining specifically to Port of Entry eligibility determinations and other matters in this area) or general Immigration matters (covering all issues outside of Port of Entry, including refugee cases). The following tables outline the number and cost of the cases handled in these areas by private bar, and the remaining cases being handled by staff lawyers. Also included is information on the characteristics of all immigration and refugee law legal aid clients in Manitoba.
|Fiscal Year||Certificates Issued||Certificates Paid||Total Cost||Cost per Case|
POE = Port of Entry
2 Since there is only one Port of Entry case in each of 1999-2000 and 1998-1999, these cost figures reflect the cost of only the single case in each year. As such, the Total Cost and the Cost per Case figures are the same. Source: Data collection charts for Manitoba.
|Fiscal Year||Certificates Issued||Certificates Closed||Cost||Cost per Case|
Source: Data collection charts for Manitoba.
|Women||Men||Under 18||18-35||36 and Over|
3 The numbers in these boxes do not correspond to the total number of women and men listed in the three age categories presented in this table. The reason for these small discrepancies is unknown. Source: Data collection charts for Manitoba.
IMPRESSIONS ABOUT LEGAL AID COVERAGE AND SERVICE DELIVERY
Low tariff levels
A key problem area in Manitoba is the low tariff levels for immigration and refugee law work: the hourly rate paid by legal aid to private bar lawyers in this province is the lowest in Canada. As a result, it is difficult to find lawyers who are willing to do legal aid work, whether in immigration and refugee law or other areas. This lack of private bar lawyer interest does not directly limit the number of certificates that are issued for immigration and refugee law (or other) matters: provided that clients meet eligibility criteria, a certificate for coverage will be issued. However, a respondent from legal aid in Manitoba noted that finding a private bar lawyer to take on a case can sometimes require "arm-twisting" on the part of staff, and that the lack of lawyers can result in delays in the processing of a case.
Inconsistent approach to service delivery
The LASS respondent noted that the approach to legal aid service delivery in Manitoba is inconsistent, in the sense that two people in the same situation may not receive the same degree of assistance. This raises questions about the equitability of legal aid, as well as the regional distribution of services (e.g., whether more services are available in urban centres than rural regions).
Liaison with Manitoba Interfaith Immigration Council
Although the LASS representative did not feel that there is a great deal that is working well in the current system of delivering legal aid to refugees and immigrants, one positive area is the liaison between legal aid and the Interfaith Immigration Council around the preparation of Personal Information Forms. Not only is the collaboration functioning well, but it was suggested that the forms are actually better prepared by Council staff than when staff or private bar legal aid lawyers are responsible for their completion.
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