Representation for Immigrants and Refugee Claimants
3. Need for representation (continued)
3.3 Detention reviews
A summary of the responses regarding need for representation for detention reviews is provided in Table 6. Sixty-nine respondents commented on the need for representation in detention review proceedings. There was a general consensus that detainees have a right to representation at these proceedings because detention constitutes deprivation of the person's liberty. However, there was also a consensus that representation is needed only when there are new issues to be addressed.
Fifty of the 69 respondents who commented on this issue felt that detainees should be represented by a lawyer, especially if there are any contentious issues to be addressed. Comments made by one of the lawyers illustrate this point of view very clearly:
Counsel is needed for detention reviews. Most detainees have a poor understanding of why they are detained and what they must establish to be released. Detention is a deprivation of liberty and should be treated as seriously as any other deprivation of liberty.
"Detainees need an effective advocate. They don't understand the legal grounds for their detention and cannot argue against it. They don't know how to respond."
"Detention reviews are adversarial. I have had some real battles with CIC in detention reviews. These are fully equivalent to bail hearings."
A case presenting officer (CPO) from CIC noted that the vast majority of detainees indicate a desire to be represented by a lawyer when they are made aware that they have a right to counsel. The problem is that very few of them can afford to retain counsel. This respondent pointed out that it facilitates the detention review process when detainees have legal representation. According to this respondent:
Adjudicators and the case presenting officer give basic information, but I am not sure the person concerned fully understands. Counsel could go over things more thoroughly.
This respondent also noted that having representation available for detention review hearings avoids the need for adjournments to enable the detainees to retain counsel. Another CIC respondent noted that the key is
"competent counsel," not just any counsel.
Any representation at a detention review should be by a person (generally a competent lawyer) who understands the law and can provide a good argument regarding release and bonds. Local NGOs generally cannot do this. They can provide some comfort to detainees, but no real help when it comes to legal issues.
This respondent also noted:
There are exceptions because some NGO staff people have learned a lot over the years.
Seventeen of the respondents who felt that legal representation is required for detention reviews qualified their response. They suggested that such representation may only be required in complicated or contentious cases, cases involving serious issues of criminality or suspected war crimes, for example. These respondents felt that in more routine cases, where a person is detained as a flight risk or to establish identity, for example, representation by a supervised paralegal or an experienced immigration consultant or person from an NGO would be adequate. The other 33 respondents who felt legal representation is required for detention reviews did not draw any distinction between simple and complex cases. Seventeen respondents felt that representation is required, but that it can generally be adequately provided by a paralegal or by some other person who is familiar with the detention review process.
There was division of opinion among respondents in all categories as to when representation is required for detention reviews. Some felt that it is important to have representation at the initial 48-hour review and at any subsequent review where new information is to be considered. Others felt that representation is pointless at the 48-hour review because it is too early for the persons detained to obtain identity documents or to find a surety to secure their release. Other respondents felt strongly that detention is a deprivation of liberty that triggers the right to representation under section 10(b) of the Charter of Rights and Freedoms and that it is very important that detainees have access to counsel at the earliest opportunity.
Four of the lawyer respondents suggested that duty counsel should be provided for the initial detention review hearings. An arrangement of this sort is currently in place in British Columbia. Respondents who are familiar with the arrangements in British Columbia noted that quality of representation provided by duty counsel is uneven, but the general sense conveyed by respondents from British Columbia is that the present system is a marked improvement over what existed before the duty counsel roster was established.
Concern was also expressed that some detainees, particularly those who are transferred to provincial jails, and who do not speak English or French, get lost in the shuffle if they are unable to contact a representative early in the process.
3.4 Immigration inquiries
A summary of responses relating to need for representation in immigration inquiries is provided in Table 7. Forty-seven respondents commented on the need for representation in immigration inquiries. Thirty-one of these suggested that legal representation is needed mainly for inquiries dealing with complex issues, for example, cases involving equivalency between Canadian and foreign laws and cases involving possible deportation of a permanent resident. Twelve of them suggested that routine inquiries are open-and-shut affairs where there is little scope for input by a representative or by the person concerned, other than possibly to argue in favour of a departure order in place of a deportation order. Four of these respondents felt that it is desirable to have representation at all inquiries, but that a paralegal or experienced immigration consultant can handle routine cases.
Five other respondents suggested that representation by a paralegal or a consultant is desirable for inquiries, if only to make sure that the person concerned understands the proceeding, the significance of the order and any appeal rights they might have. These respondents did not draw any distinction between routine and complex inquiries, implying that they felt paralegals and consultants are quite capable of dealing with any issues that arise in inquiries.
Five respondents felt that moral support for the person concerned is all that is required for most immigration inquiries. However, they felt that legal representation is required in cases where an inquiry may lead to loss of permanent resident status.
In summary, a majority of respondents who commented suggested that representation is needed primarily for inquiries that involve complex legal issues. In these cases, involvement of a lawyer is preferred. Otherwise inquiries can be handled without representation or with representation provided by a non-lawyer who is familiar with the process.
3.5 Immigration Appeals
Service providers and hearing participants were questioned regarding the need for representation in appeal proceedings before the Immigration Appeal Division (IAD) of the IRB. The two appellants who were interviewed were also asked for their assessment regarding need for representation in immigration appeals. Only 41 respondents expressed opinions on this matter, all of them suggesting that representation is needed for appeals. Thirty-four of these felt that the representative should be a lawyer, especially for removal appeals and for sponsorship appeals involving complex legal questions, such as validity of foreign marriages. Six respondents indicated that experienced non-lawyers could provide effective representation for most immigration appeals. A summary breakdown of responses is provided in Table 8.
Only five respondents from the IRB and two from CIC and IRB commented on the need for representation at appeal proceedings before the IAD. Two of the IRB respondents who stated that legal representation is required for removal appeals felt that most sponsorship appeals, which involve exercise of discretion on humanitarian and compassionate grounds, could generally be handled by competent immigration consultants or paralegals. Seven of the lawyers and one of the consultants shared this view. Two other consultants felt they could handle all appeals. Four of the eight paralegals who were interviewed felt that appeals should be handled by lawyers, although one of these thought a paralegal who specialized in appeals could probably handle most appeals.
Respondents' views on the need for representation at admissibility interviews were sharply divided. CIC and IRB respondents saw little need for representation at these interviews, while most service providers felt there is need for refugee claimants to be accompanied by a knowledgeable advocate at these interviews, or at least to have ready access to good advice before the interview. Twelve of the 19 claimants who responded felt that in most cases it would be sufficient if they had access to advice and information before the interview. Only one felt that anything more than this would be routinely required.
There was near unanimity among respondents who commented on the issue that refugee claimants need substantial assistance to prepare their personal information form (PIF) and to get ready for the hearing on their claim. A substantial majority of these respondents (62 of 86) indicated that lawyers must be involved at the preparatory stage, at least in a supervisory capacity, to make sure that all of the issues are adequately addressed. Almost half of the respondents who indicated that a lawyer must be involved in case preparation felt that much of the preparatory work can be handled by experienced non-lawyers working under the supervision and guidance of a lawyer.
Respondents expressed a strong preference for full legal representation at refugee hearings, although some felt that relatively straightforward, fact-driven cases that do not raise complex legal issues could be effectively handled by supervised paralegals with appropriate training in basic legal principles and appropriate advocacy skills.
Respondents also felt that representation is needed for detention review hearings, at least for hearings where new evidence is being presented. Trained paralegals or experienced consultants have the requisite skills to handle routine detention reviews, but a lawyer is required in any case involving complex legal issues. Representation is not required for routine immigration inquiries, but for inquiries involving possible loss of permanent resident status or complex legal issues, such as equivalency of foreign convictions, representation by a lawyer is required.
Persons filing H&C applications require assistance, but legal representation is generally not considered necessary. However, legal representation is considered to be an absolute necessity for judicial review applications. Very few respondents commented on the need for representation for pre-removal risk assessments (PRRA) because there had been no experience with this new process when the interviews were conducted. The few who did comment felt that representation similar to that required for initial hearings would be needed in any PRRA case where there is substantial new evidence to be considered. Representation was also considered necessary for most immigration appeals, particularly for removal appeals. For straightforward appeals that do not raise complex legal issues, most respondents felt that the needed representation can be provided by supervised paralegals and experienced immigration consultants; however, full legal representation was considered to be necessary for complex appeal cases.
-  All of the service providers and the hearing participants, as well as three refugee claimants who had been detained by immigration authorities, were asked the following questions with respect to detention reviews:
"1) In your opinion, do persons detained under provisions of the Immigration Act [or the Immigration and Refugee Protection Act, for interviews after June 28, 2002] need any form of assistance and/or representation for detention review hearings conducted by IRB adjudicators? Please elaborate as to why assistance and/or representation is or is not needed for detention review hearings. 2) What sort of assistance and/or representation do persons detained need to prepare for detention review hearings? 3) What sort of assistance or representation do you think persons detained need at detention review hearings? 4) What qualities or qualifications should persons have in order to provide the sort of assistance and/or representation that you believe is needed by persons detained in relation to detention reviews?"
-  Of the 17, eight were from CIC and three were from the IRB. Four lawyers, one paralegal and one consultant expressed the same qualification.
-  The specific questions asked with respect to immigration inquiries were:
"1) In your opinion, do persons who are the subject of immigration inquiries conducted by IRB adjudicators need any form of assistance and/or representation for the immigration inquiry? Please elaborate as to why assistance and/or representation is or is not needed for immigration inquiries. 2) What sort of assistance and/or representation do you think persons who are the subject of an immigration inquiry need to prepare for inquiry hearing? 3) What sort of assistance or representation do you think persons who are the subject of an immigration inquiry need at the inquiry hearing? 4) What qualities or qualifications should persons have in order to provide the sort of assistance and/or representation that you believe is needed by persons who are the subject of an immigration inquiry?"
-  The specific questions were:
"1) In your opinion, do persons who are pursuing immigration appeals before the Immigration Appeal Division of the IRB need any form of assistance and/or representation for the immigration appeal? Please elaborate as to why assistance and/or representation is or is not needed for immigration appeals. Is there any difference in need for assistance and/or representation for removal appeals and for sponsorship appeals? 2) What sort of assistance and/or representation do you think appellants need to prepare an immigration appeal? Is there any difference in the sort of representation needed to prepare for removal appeals and for sponsorship appeals? 3) What sort of assistance and/or representation do you think appellants need at appeal hearings before the IAD? Is there any difference in the sort of representation needed for removal appeals and for sponsorship appeals?"These were followed later in the interview by the question:
"What qualities or qualifications should persons have to provide the sort of assistance and/or representation that you believe is required by persons pursuing immigration appeals?"
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