A Synthesis of the Immigration and Refugee Legal Aid Research

Executive Summary

Introduction

The research into immigration and refugee legal aid services [1], conducted as part of the joint Federal, Provincial, and Territorial Legal Aid Initiative, focused on three key areas of interest:

  1. The availability of immigration and refugee legal aid services across Canada;
  2. The need for representation during the different stages in the immigration and refugee process and the ways in which representation could be provided; and,
  3. The factors that affect the cost of providing immigration and refugee legal aid services.

The research was intended to identify the issues that should be considered in developing legal aid policy as part of the joint federal, provincial, and territorial renewal strategy for legal aid, 2003-2006.

Availability of Service

Immigration and refugee legal aid services are provided by legal aid plans in six provinces in Canada: British Columbia, Alberta, Manitoba, Ontario, Quebec, and Newfoundland. Under these plans, legal aid is largely provided to refugees (as opposed to immigrants). All six legal aid plans provide full legal aid services at hearings and appeals - the points in the process where the risk to a claimant's "security of the person" is highest. Legal aid services provided during other stages in the process vary from province to province.

NGOs are another important source of legal services for immigrants and refugees. In general, NGOs tend to provide these services along with other, non-legal, settlement-related services (for example, health- or housing-related services). NGOs generally tend to provide services not offered by the provincial or territorial legal aid plan. Therefore, in provinces with extensive legal aid coverage, NGOs provide fewer legal services, whereas in provinces with little or no legal aid coverage, they provide a wide range of legal services. NGOs face two key constraints in providing services to refugees. The first is that many are not mandated to address the needs of asylum refugees and the second is an overall lack of funding for their activities.

Need for Assistance

The research indicates that most refugee claimants will require some assistance at all stages of the immigration and refugee determination process.[2] However, assistance does not necessarily imply representation by a lawyer. In general, respondents believed that the need for representation by a lawyer was directly related to the complexity of the legal issues involved and the potential for impact on a claimant's "security of the person". In other words, they considered whether asking a claimant to go through the stage without representation would affect the fairness of the process. Hearings and appeals are examples of stages where respondents generally felt that representation by a lawyer is required to ensure fairness. Respondents also pointed out that providing appropriate assistance to refugees during the process would increase efficiency overall.

Based on the research, the need for some form of assistance at the various stages of the immigration and refugee determination process is as follows:

  • Eligibility and Admissibility Stage - At this stage, claimants usually need assistance in completing CIC administrative documents. It is important that these documents are prepared carefully, because the information provided in any forms filled out later in the process must be the same as the information provided at this stage. Services at this stage are generally provided by NGOs. Ontario and Alberta both provide some coverage for cases where a claimant is likely to be considered ineligible at this stage.
  • Before the Hearing - Most legal work takes place at this stage, including the preparation of the Personal Information Form (PIF) and other case materials. At this point, trust and open communication between a claimant and the representative are key. Services are provided by the legal aid plans (in the six provinces with coverage) or by NGOs. Supervised paralegals can also play a useful role because of their cross-cultural experience and ability to spend more time with a claimant.
  • Refugee Determination Hearings - For many claimants, the refugee determination hearing is the stage in the process that will have the greatest impact on their status and their rights. Therefore, services at this stage are provided by legal aid counsel in all six provinces with coverage. Some respondents felt that for simple cases such as expedited claims, supervised paralegals might also be able to provide representation at this stage.
  • Detention Hearings and Immigration Inquiries - Detention hearings are another point where a claimant's "security of the person" is at risk and therefore where the six legal aid plans provide representation by counsel. Immigration inquiries are a means for a claimant to contest decisions made by the CIC. Legal aid is available for immigration inquiries in British Columbia, Alberta, Manitoba, and Quebec, although few applications for this service are received.
  • Immigration Appeals - Immigration appeals on removal orders, family class sponsorship applications and by the CIC Minister on decisions rendered by the Immigration Division are made to the Immigration Appeals Division of the IRB. They are covered under the legal aid plans of British Columbia, Alberta, Manitoba, Ontario, and Quebec.
  • Federal Court of Canada and Supreme Court of Canada Appeals - The Immigration and Refugee Board's (IRB) rulings can be appealed to the Federal Court of Canada and the Supreme Court of Canada. These appeals are complex and have a significant potential to affect a claimant's "security of the person". Therefore, they are covered under all six legal aid plans.
  • Post-Determination Refugee Claimant in Canada Class (PDRCC) and Humanitarian and Compassionate (H&C) Applications - PDRCCs are applications made by claimants whose claim has been rejected by the IRB but who may be considered to be at risk if they return to their country of origin. Under the Immigration and Refugee Protection Act (IRPA), PDRCC applications are replaced by a pre-removal risk assessment - PRRA. PRRAs now consider consolidated grounds, including risks referred to in Article 1 of the Convention Against Torture. H&C applications are made by individuals who are, for example, married to a permanent resident or parents of children born in Canada. British Columbia, Alberta, Manitoba, and Ontario provide coverage for H&C applications. Only British Columbia and Alberta cover PDRCC applications. NGOs also provide significant service in these areas.
  • Refugees with Special Needs - Some refugee claimants - unaccompanied minors [3], victims of torture, people with mental illnesses or disabilities (such as Post-Traumatic Stress Disorder), cases where gender-based persecution is an issue - have special needs. These claimants require special attention and support throughout the process.

Cost Drivers

Legal aid plans have little control over the factors affecting the cost of service provision. Therefore, reducing the cost of immigration and refugee legal aid would require either reducing the level or quality of services provided or making use of alternative service delivery mechanisms.

A number of factors were identified that affect the cost of providing refugee legal aid services, including:

  • The number of refugee claims - The more refugees there are making claims in Canada, the higher the demand for services and the funding required to provide those services. A rise in the number of refugees has an indirect effect on cost by putting pressure on the system to process more cases every year. If these refugees arrive through illegal smuggling or unanticipated mass arrivals (such as the Chinese marine arrivals), costs increase even further because these refugees are more likely to be detained and the process they undergo may differ from standard practice.
  • The impact of the Immigration and Refugee Protection Act (IRPA) - The impact of the IRPA on cost is not entirely clear, as the Act is not yet fully implemented. However, the IRPA has the potential to increase the cost of service provision in several ways:
    • Through more stringent eligibility and admissibility policies, which may increase the need for assistance at this stage;
    • Through increased volume of hearings due to the use of single member refugee protection determination panels instead of two-member panels (in the short-term, as experience with the new system is developed, cases may also take longer to process);
    • Through the addition of a new stage in the process, the Refugee Appeals Division (RAD);
    • Through the PRRA, which is more complex than the PDRCC application process it replaces and therefore may require some form of legal assistance for a claimant; and,
    • Through an increase in the number of judicial reviews as aspects of the legislation are clarified.
  • Lack of understanding of the process among refugees - The lower the overall understanding among refugees of the immigration and refugee process and their rights and obligations under Canadian law, the greater the demand for and cost of providing legal aid services.
  • Interpretation and translation - Interpretation and translation are required for clear and open communication between service providers and claimants. These costs make up a significant part of legal aid budgets and the effort involved in coordinating translation and interpretation services represents a significant burden for legal aid staff.
  • The number of judicial reviews - Although judicial reviews are very infrequent, seeking leave for judicial review is quite frequent. As a result, combined they account for a significant portion of overall legal aid costs.

Looking Forward

Two potential innovations were suggested for providing legal aid services to refugees:

  • Increased use of supervised paralegals - Increased use of paralegals would likely increase the quality of service provided because of their greater cross-cultural skills and ability to spend more time with a claimant. However, the use of paralegals would not necessarily reduce the amount of legal aid provided by lawyers, and therefore the cost of service provision, unless complimentary service delivery changes were made
  • Increased service provision by NGOs - NGOs may be capable of providing high-quality legal services very effectively if they receive the proper funding and training for their staff and volunteers, are connected to networks of expertise, and are able to expand their mandate to include providing assistance to asylum refugees.

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