Immigration and Refugee Legal Aid Cost Drivers

3. Cost drivers unique to immigration and refugee legal aid

3. Cost drivers unique to immigration and refugee legal aid

The starting point for any analysis of immigration and refugee legal aid cost drivers is level of demand or need for legal aid services. The more immigrants and refugee claimants there are who require legal aid, the greater will be the cost of providing the required services. For the reasons noted in the preceding chapter, only a small portion of legal aid budgets is devoted to assisting immigrants who are not claiming refugee status. The great bulk of legal aid spending in this area is directed to providing refugee claimants with the legal assistance they desperately need to help them through the refugee determination process. The primary cost driver in relation to legal aid for immigration and refugee matters is the volume of the caseload, or the number of refugee claims made in Canada in any given time period. Anything that influences the number of refugee claims made in Canada can therefore be considered a secondary cost driver for legal aid. The first factor influencing the refugee caseload in Canada is the number of persons there are worldwide who might be inclined and able to travel to Canada to make a refugee claim. The second factor is the ease with which these people are able to reach Canada to present their claims, or conversely the barriers to access that they are likely to encounter in any attempt to reach this country [35].

Beyond the number of persons there may be who require legal aid, the nature and complexity of the services required affect the cost of providing these services. In this regard, the complexity of procedures in which refugee claimants are involved is also a legal aid cost driver.

3.1 Immigration to Canada and legal aid costs

International migration is driven by a variety of factors. On the one hand, overpopulation, poor economic conditions, natural disasters and endemic civil conflict can be considered as "push" factors driving global migration. On the other hand, other people migrate because other countries offer them better economic prospects. Factors that lead people to move simply to pursue better economic opportunities can be loosely characterized as "pull" factors.

The level or total number of asylum claims made in Canada, as in most other developed industrial countries, is driven both by refugee producing conditions in source countries and by general economic conditions that induce people to migrate. Both of these factors have an impact on the number of people seeking to migrate to Canada. To the extent that prospective immigrants claim refugee status as a means to gain admission to Canada, these factors have an impact on legal aid costs and may therefore be regarded as indirect legal aid cost drivers.

At present, Canada, the United States, Australia and New Zealand are the only countries that encourage and plan for immigration. According to the Canadian government's Immigration Plan for 2002, immigrants now account for more than 70% of all labour force growth in Canada, a proportion that will grow to 100% in the next 10 years (CIC, 2001a). On the one hand, Canada is competing at the international level to attract skilled immigrants. On the other hand, Canada and other developed countries are struggling to manage the influx of prospective immigrants who do not have the skills and education to fit the countries' labour market needs.

Between 1997 and 2000, the number of immigrant applications received by Canada increased by 46% (CIC, 2001a). In calendar year 2000, 197,129 new immigrants were landed in Canada. In addition to this number Canada granted landed residence status to 30,080 refugees. In 2001, 222,504 new immigrants and 27,882 refugees were granted landed status in Canada. Data on landings in each of the past five years are presented in Chart 3.

Chart 3 Immigration Landings in Canada : 1997-2001

Immigration Landings in Canada : 1997-2001
[Description of Chart 3]


  1. CIC, Annual Immigration Plan, 2000: Appendix E
  2. CIC, Annual Immigration Plan, 2002: Appendix E
  3. CIC, News Release 2002-11, April 17, 2002

Roughly 11% of persons currently being granted landed immigrant status in Canada are refugees. This group is quite distinct from the other 89% who arrive through regular immigration channels. Regular immigrants are admitted to Canada on the basis of qualifications intended to address Canadian priorities. Family class immigrants, skilled workers, business investors and entrepreneurs are admitted to Canada based on an assessment of the contribution they can make to Canadian society and the likelihood of their adapting successfully to life in Canada after their arrival [36]. Emphasis is placed on factors such as language skills, education and employment prospects, and in the case of immigrants in the family class, the capacity of sponsoring relatives to support them in Canada after their arrival. Refugees, on the other hand, are admitted to Canada for humanitarian reasons. With refugees whose claims are determined in Canada, the focus is entirely on the individual refugee's need for protection. With refugees sponsored from overseas, prospects for successful integration in Canada are also considered.

Chart 4 Refugee Claims Referred to IRB : 1994-2002

Refugee Claims Referred to IRB : 1994-2002
[Description of Chart 4]

Source: IRB

Over the past four years, the number of refugee claims referred to the IRB has increased significantly, rising from just under 25,000 in 1998 to more than 35,500 in 2000 (CIC, 2001a: 5). The number of refugee claims referred to the IRB in 2001 exceeded 44,000. That number is projected to decline to 40,000 this year (IRB, 2002b). The upward trend in the number of refugee claims being made in Canada in recent years can be seen in Chart 4. The number of refugee claims determined by the IRB is also rising, however the Board has not been able to keep pace with the increased intake of claims. As a result, a substantial inventory of claims has built up. In order to clear this inventory and to reduce processing times to an optimal level, the Board will have to continue increasing the number of claims determined each year for the next few years, even if the number of new claims received declines. The expected increase in IRB capacity to hear cases will exert further cost pressure on legal aid authorities.

Significantly, over 90% of the immigrants and refugees landed in Canada in 2000 settled in Ontario, Quebec and British Columbia. Nearly 75% of all immigrants currently coming to Canada choose to live in Toronto, Montreal and Vancouver, an increase of 5% over the past decade (CIC, 2001a: 5). The proportion of refugee claims made in Canada is weighted even more heavily towards the three largest centres. The IRB estimates that 54% of all in-Canada claims for 2002-03 will be referred to Toronto, 30% to Montreal and 9% to Vancouver (IRB, 2002c). This concentration of newly arrived immigrants and refugees in three provinces imposes especially heavy cost burdens on legal aid programs in these provinces.

Some refugees are highly qualified and they adapt easily once they settle in Canada; but others have great difficulty integrating into the Canadian economy. When they arrive in Canada, many refugee claimants are destitute. From the moment they present their refugee claim, they are drawn into complex legal proceedings. In contrast, regular immigrants, whose resettlement in Canada has been pre-approved, are far less likely to encounter legal problems when they arrive. As a pre-condition to their being approved for permanent residence status in Canada, regular immigrants must have sufficient resources to support themselves, or they must have a sponsor in Canada who is prepared to support them. As a result of these factors, refugee claimants are more likely than regular immigrants to require legal aid, both with respect to status determination proceedings and with respect to the regular incidents of life in Canada, after they are accepted as refugees. Again, the cost impact for legal aid programs that flows from the special needs of refugees are concentrated overwhelmingly in Ontario, Quebec and British Columbia.

3.1.1 The refugee determination process as an alternative channel for immigration

To be accepted for landing in Canada through regular immigration channels, prospective immigrants must meet demanding qualifying criteria relating to matters such as level of education, language skills, and employment prospects. Individuals claiming refugee status, on the other hand, are permitted to remain in the country until their refugee claim is determined. Claimants who are granted asylum in Canada qualify for landing as permanent residents, and they can sponsor their spouse and dependent children for landing without regard to the qualifying criteria that apply to other immigrants. While their refugee claims are being processed, claimants are also permitted to work in Canada. For individuals who want to immigrate to Canada, but who do not have much prospect of qualifying for admission through regular immigration channels, the refugee determination process offers an attractive alternative avenue for admission to the country.

Two different patterns that are apparent in the composition of the intake of refugee claims to Canada illustrate this point. Two primary source countries, China and India, currently account for close to 30% of new immigrants to Canada (CIC, 2001a: Appendix E). India and China are also perennially among the top 10 source countries for refugee claimants arriving in Canada. While some of the refugee claims from these two countries are accepted, the majority of them are rejected (IRB, 2002e). This suggests that a significant number of claimants from these countries may be using the asylum process as an alternative to regular immigration channels.

In a completely different vein, in recent years Canada has also received sudden influxes of refugee claims from Chile and Argentina at a time when these countries were not commonly regarded as refugee-producing countries. Most of these claimants appear to have been motivated more by stories they had heard about good economic prospects in Canada than they were by any objective fear of persecution in their home countries, and very few of these claims were accepted. The large number of claims received in recent years from the Czech Republic and from Hungary appears similarly to have been driven in large measure by media reports in the source countries about living conditions in Canada. Most of the claimants from these latter two countries were Roma, who as a group have faced a history of severe discrimination and persecution throughout Central Europe. But at the time Roma claimants started arriving in Canada in large numbers, the national governments in Hungary and the Czech Republic were making serious efforts to redress this historic abuse. This suggests that a significant number of claimants from these countries may also be using the refugee determination process as an alternative channel for immigration to Canada.

This is not to imply that all, or even most, refugee claimants are abusing the asylum process. Indeed, the fact that approximately half of all the claims made in Canada are determined to be well-founded indicates the exact opposite [37]. Many people who do not fit the legal definition of Convention refugee migrate to countries like Canada to escape from intolerable conditions in their home countries. The fact that they attempt to come as refugees is not surprising. The boundary between refugees and so-called economic migrants is often very thin. But the very fact that the boundary is so thin makes it possible for prospective immigrants, particularly those from countries with poor human rights records, to use the refugee determination process as an alternative avenue for admission. To the extent that Canada is perceived by these prospective immigrants as an attractive immigration destination, it is to be expected that a significant number of them will look to the asylum process as an alternative route of access. This, in turn, has a significant impact on legal aid costs since there is a high probability that people claiming refugee status in Canada will require legal aid.

3.2 Global migration issues

Review of major trends in global migration provides a starting point for identifying the forces that influence refugee claimants' decision to seek asylum in Canada. As a direct consequence of globalization and increased accessibility to international travel, large numbers of people are moving from their countries of origin to other countries in pursuit of economic opportunities and a better life. It has been estimated that about 150 million people around the world are on the move at any given time (CIC, 2001a: 5).

In 1999, there were about 22 million refugees and internally displaced people around the world identified as persons of concern to the United Nations High Commissioner for Refugees. Less than one-sixth of this group has been granted asylum in Western Europe, Canada, the United States and Australia (UNHCR, 2000) [38]. But the total number is so large that even the small number who manage to reach these developed countries have a significant impact in the destination countries.

In addition to the 22 million identified as persons of concern to the UNHCR, a significant number of migrants are also moving from less developed countries to Western Europe, North America and Australia in search of economic opportunities. Some of these migrants arrive through regular immigration channels; others enter the destination countries illegally or do not leave when their visas expire.

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