Representation for Immigrants and Refugee Claimants

14. Conclusion

This study was undertaken to examine the need that immigrants and refugee claimants have for assistance and representation in relation to legal proceedings under the Immigration and Refugee Protection Act. From responses received in interviews with over 140 respondents who have direct experience in these proceedings, it is evident that the persons who are the subject of the proceedings do need assistance and representation at various stages in the legal process. The level of knowledge that most immigrants and refugee claimants have is extremely limited with respect to the Canadian legal system and with respect to the substantive law applicable to their particular situation. When they present their refugee claims, most refugee claimants have limited or no ability to function in either of Canada's official languages. Because of language difficulties and lack of familiarity with even the most basic elements of the Canadian legal system, refugee claimants, in particular, are poorly placed to benefit from forms of assisted self-representation that have been used to good effect in other areas such as family law (Frecker, 2002: 28). It is therefore unrealistic to think that these individuals have the capacity to participate in legal proceedings under the IRPA without some form of assistance and/or representation from third parties.

Most permanent residents in Canada who have come here through regular immigration channels have sufficient resources to hire counsel to represent them when required. However, refugee claimants are more likely to be dependent on publicly funded legal aid or on assistance from non-government organizations for the required assistance and representation.

Respondents were generally agreed that the level of assistance required, and the qualifications needed to provide the required services, vary with different proceedings. As a general proposition, the closer one gets to a proceeding in which decisions are made that affect the legal status of the person concerned, and the more the proceeding involves legal, as opposed to purely factual issues, the more necessary it becomes to have full legal representation provided by a lawyer. At the front end of the process, particularly with regard to the initial eligibility and admissibility interviews and preparation of the non-narrative portion of the claimant's PIF, there is considerable scope for persons without formal legal training to provide the required assistance.

Many respondents also suggested that there is scope for experienced non-lawyers, with appropriate training in advocacy and the basic principles of immigration and refugee law, to represent claimants at hearings in cases that are primarily fact-driven and do not raise complex legal issues. However, there was a general consensus among respondents that lawyers should be involved, at least in a supervisory capacity, in pre-hearing preparation and case presentation, even in apparently straightforward cases, to ensure that significant legal issues are not overlooked. For refugee hearings that involve complex legal issues, a clear majority of respondents in all groups felt that claimants should be represented by a lawyer - especially considering that there is no right of appeal, and the consequences for the claimant can be of life-and-death importance if a claim is erroneously rejected.

The level and quality of representation services currently available to refugee claimants varies widely across the country. Legal aid plans in six provinces, including the three where most refugee claims are heard, provide coverage for immigration and refugee matters. Claimants in the other provinces who cannot afford to hire counsel on their own are dependent on non-government organizations or lawyers working pro bono to provide the necessary representation services.

Even in provinces where legal aid is available, the quality of representation varies widely. According to respondents in all of the groups interviewed, many of the lawyers who represent immigrants and refugee claimants are highly qualified and dedicated advocates. But respondents, especially in Quebec, also noted that low legal aid tariffs have caused many of the most experienced counsel to withdraw from representing legal aid clients. Some lawyers are compensating for the low tariff by taking on more cases than they can realistically handle, with the result that the quality of representation provided often suffers. Respondents in Quebec, Ontario and British Columbia also reported that there are significant problems with unqualified, unregulated immigration consultants who take advantage of unwitting refugee claimants.

From a public policy perspective, the challenge is to find a cost-effective way to deliver the required services to refugee claimants. At present, a significant portion of assistance available to immigrants and refugee claimants is being provided free of charge by various non-government organizations. These organizations remain ready and willing to continue providing services in this area, but there was a strong sense among respondents from the NGO sector that they should be properly funded to provide these services, and should not be looked upon as a cheap alternative to legal aid.

Respondents were generally agreed that, in the jurisdictions where they have been established, legal aid clinics that have community legal workers or paralegals working closely with lawyers are providing high-quality representation services. Proponents of the clinic model, in the academic literature on legal aid, note that clinics are not limited to dealing with the legal issues, and are designed to address a much broader range of clients' support needs. Paralegals at clinics are well equipped to provide much of the assistance that immigrants and refugee claimants require, and they supposedly can do so at a lower cost than lawyers can. For example, as clinic proponents, both in the academic literature and among the respondents interviewed for this study, point out, community legal workers drawn from immigrant communities are able to provide interpretation and translation services that otherwise have to be contracted out. They are also able to provide services to many clients in their native languages. These supposed advantages appear to make the clinic-based model for legal aid service delivery particularly well suited to the needs of immigrants and refugee claimants. On balance, judging from the comments made by respondents in this study, there seems to be greater recognition of the potential benefits of staff-based service delivery for immigrants and refugee claimants than there may be in other legal aid areas such as criminal law. However, the portion of immigration and refugee legal aid services currently provided by salaried staff is marginal, and, with closure of the IRLC in Vancouver, appears to be shrinking.

In the ongoing public debate about different models for legal aid service delivery, judicare proponents cite the advantages of wider choice and competition among lawyers as supposed advantages possible under judicare arrangements. Their chief criticism of staff-based service delivery is that it limits the range of choice that clients have when selecting counsel to represent them. Judicare proponents also question the relative cost-effectiveness of the staff-based model for service delivery, and suggest that there is a constant risk that quality of service will be eroded as salaried staff are pushed to handle unrealistically large caseloads to keep costs down. Respondents who were interviewed for the present study, particularly lawyers from the private bar, echoed these concerns with regard to reliance on clinics for delivery of legal aid services to immigrants and refugee claimants.

The alleged concerns about quality of service and relative cost-effectiveness of staff-based service delivery have largely been laid to rest by the most recent results from the ongoing evaluation of the Refugee Law Office in Toronto. However, a substantial majority of the immigrants and refugee claimants interviewed for this study regarded the ability to choose their own counsel as very important. Assuming this to be reasonably representative of the preference of the general population of immigrants and refugee claimants who rely of legal aid, concerns about limiting choice of counsel therefore remain relevant to any discussion about possible changes in the way legal aid services are delivered.

Limits on clients' choice of counsel are generally not a problem in situations where clinics operate side by side with conventional judicare arrangements. Also, the notion of unlimited choice of counsel is misleading. In reality, most claimants have little or no idea of whom they want as their counsel. They rely heavily on recommendations from trusted sources, such as NGOs that have assisted them, and they make a choice among limited alternatives proposed by the person making the recommendation. Freedom to choose counsel does become significant, however, when claimants lose confidence in the person who is representing them, and they want to change counsel midway through the proceedings.

It is unrealistic in the present economic climate to think that the representation needs of immigrants and refugee claimants can be met simply by increasing legal aid funding. Taking all of the comments received from the respondents who were interviewed for the present study into consideration, it is submitted that the optimal model for delivering legal aid services to immigrants and refugees should draw heavily on the best elements of the present clinic model. At the same time, a way needs to be found to preserve the elements of competition and broader choice of counsel that are inherent in judicare arrangements.

In the legal aid context, discussion about representation needs of immigrants and refugee claimants ultimately comes down to the question of what services must be provided by lawyers and what services can reasonably be provided by non-lawyers. A key element in this discussion is what role, if any, the various non-government organizations that serve immigrants and refugee claimants can play in providing the assistance and representation that immigrants and refugee claimants require for the various legal proceedings in which they are involved.

It is clear from the information provided by respondents in the present study that NGO personnel play a key role in assisting immigrants and refugee claimants in relation to virtually every aspect of their adaptation to life in Canada. However, NGO service providers felt that there are limits to how far they can go in providing legal advice and representation services. After a client has been referred to a lawyer, NGO personnel continue to take an interest in the client's case, but there does not appear to be any systematic structure for co-ordinating the support they provide with the work being done by lawyers.

Some NGOs, such as the Réfuge Juan Moreno in Montreal and Hamilton House in Toronto, have established close working relationships with a select group of experienced lawyers. The lawyers and the NGO, in these circumstances, are able to address the client's needs in an integrated, mutually supportive way. Staff at the NGO play an significant role in assisting clients to prepare their cases. The lawyers concerned closely monitor the work done by NGO personnel, so there is minimal possibility that the clients receive conflicting or erroneous advice.

Judging from the comments made by individual refugee claimants who have benefited from this sort of close co-operation between their lawyer and the supporting NGO, the level of client satisfaction is very high. On the other hand, many of the problems and misunderstandings reported by claimant respondents appeared to be rooted in the absence of any ongoing contact between the supporting NGO and the claimant's lawyer. Claimants in this situation have nowhere to turn if they have difficulties with their lawyer. The supporting NGO's workers are reluctant to give the claimant any advice because they are not aware of what approach the lawyer is taking on presentation of the claim. Conversely, they may give ill-informed advice that creates confusion for the claimant and additional problems for the lawyer.

When looking at possible ways to improve delivery of legal aid services to immigrants and refugee claimants, consideration should be given to options that encourage this sort of co-operation between lawyers and NGOs. The NGO respondents who were interviewed for this study indicated that they are providing services to refugee claimants to the best of their ability. However, they felt that, at times, they are regarded by government authorities as a cheap substitute for legal aid. As a first step, the NGOs need to have access to reliable funding that would enable them to put the services they provide to refugee claimants on a more stable footing[59].

At the same time, legal aid authorities should look at ways in which they might encourage lawyers to work more closely with NGOs. There are some existing models for this sort of co-operation that merit close examination. The pilot project under which the Manitoba Interfaith Immigration Council in Winnipeg employs paralegals, who handle much of the case preparation work on refugee claims funded by legal aid, is one example of the sort of arrangement that might be considered. Another example is provided by the Halifax Refugee Clinic, which itself is an NGO that brings together lawyers and non-lawyers who work together to assist refugee claimants. The viability of these particular examples may be limited to the unique circumstances in which they have evolved, and it would be presumptuous to suggest that they could be successfully replicated in a completely different environment. What is required is a flexible approach that encourages creative co-operation between lawyers and NGOs to develop options that are adapted to the particular context in which the lawyers and the NGOs operate.

One way in which this might be accomplished would be to create incentives for settlement organizations that have a well-established governance structure and a substantial client base to form strategic alliances with lawyers who are prepared to provide legal representation for immigrants and refugee claimants. Organizations and lawyers that are party to such an alliance could be invited to submit to legal aid authorities proposals for creative ways in which, together, they could deliver the required legal assistance and representation. Proposals that are accepted by the legal aid authority could be funded to provide representation services for immigrants and refugee claimants who qualify for legal aid. The legal aid authority could contract to pay for the services provided either on a block fee basis, a fee-for-service basis or some combination of the two. It would then be up to the lawyers and the staff of the settlement organizations, having agreed to work together, to sort out what services should be provided by lawyers and what can be provided by paralegals or other paid staff or by volunteers affiliated with the settlement organizations.

Such an arrangement would enable the settlement organizations to expand the range of services they are able to offer to their clients, and would give them access to a new source of funding to finance their operations. It would also give them the opportunity to expand their client base to include refugee claimants, thereby enabling the settlement organizations to serve all newcomers without regard to how they have come to Canada. Some of these services are currently being provided on an ad hoc basis, without compensation or appropriate legal supervision or guidance. The arrangement could provide the lawyers with access to a substantial client base and to support services that personnel at the settlement organization are able to provide. Such an arrangement would also enable the lawyers and the settlement organizations, together, to provide a much more seamless and integrated service than they are currently able to provide separately. From the clients' perspective, such an arrangement would bring them one step closer to being able to access more services from a single provider. This would reduce the considerable frustration they currently experience in accessing diverse services at a number of separate locations.

Settlement organizations might want to create their own legal departments and hire lawyers to provide necessary legal services to the organization's clients. Or they might want to contract with lawyers in private practice to provide legal services on agreed terms. Conversely, lawyers might take the lead in such arrangements and engage settlement organizations to provide paralegal-type support. The range of possibilities is quite extensive.

Lawyers involved with such an arrangement would have to ensure that they provide adequate supervision of any non-lawyers who are assisting in the delivery of legal services. They would also have to ensure that non-lawyers working under their supervision do not contravene applicable legislation and codes of conduct governing the practice of law.

To ensure transparency, it might be useful to open this sort of arrangement to competitive bidding between different settlement organizations and consortiums of lawyers. It is important that any projects approved to provide services under such an arrangement have demonstrated the capacity to meet their commitments. Any settlement organizations involved must also have a sound and stable governance structure. The boards of directors and senior managers of the settlement organizations involved would have to play an active role in providing overall direction and organizational structure for this sort of endeavour.

The main issue from the perspective of any legal aid authority supporting such an arrangement is that there be adequate safeguards in place to ensure the quality of the services provided and the appropriate financial accountability. Contracts between the service providers and the legal aid authority would have to specify the level of service expected, and have to include provisions ensuring that the lawyers involved will provide adequate supervision and guidance for non-lawyers who are providing legal services. The legal aid authority should also put in place measures to monitor the performance of the service providers under any proposal that is approved for funding. A very detailed model for such a quality assurance standard can be found in the Legal Aid Quality Assurance Standard (Solicitors) published by the Legal Services Commission in England (Legal Services Commission, 2000).

[59] Most of the NGOs that provide settlement services for new immigrants are currently working under funding arrangements that actively discourage them from developing any working arrangements with lawyers who represent refugee claimants. Present funding agreements with CIC and Human Resources Development Canada (HRDC), which are the NGOs' principal funding sources, restrict them to providing services to landed immigrants. Services for refugee claimants can only be provided on a volunteer basis or be paid for with funds from other sources.