Immigration and Refugee Legal Aid Cost Drivers

9. Conclusion

Availability of legal aid for immigration and refugee matters is an issue of great importance, particularly in relation to the determination of refugee claims. Decisions made in the refugee determination process affect the life, liberty and security of the persons concerned in a fundamental way. Very few refugee claimants have even a rudimentary familiarity with the Canadian legal system. Many of them are unable to function in either of Canada's official languages when they claim asylum in this country. Refugee claimants have a compelling need for assistance in order to present their claims effectively. Yet many refugee claimants are heavily dependent on legal aid because they do not have sufficient financial resources to retain legal counsel on their own.

The primary cost driver with respect to immigration and refugee legal aid services is the number of refugee claims made in Canada. Other factors also influence legal aid costs, but these are all secondary to the overwhelming importance the demand for legal aid services for refugee claimants as a legal aid cost driver. Different ways in which legal aid tariffs are structured create economic incentives for lawyers to conduct their practices in particular ways that ultimately have a bearing on legal aid costs. Procedural requirements imposed by legislation and by operating practices at the IRB influence costs by affecting the effort that must be expended in individual cases. However, these factors pale in comparison to the base factor of sheer volume of demand for services.

There is little evidence of any correlation between policies and practices in other countries with respect to the admission of asylum seekers and the number of refugee claims lodged in Canada. There have been limited short-term fluctuations in Canadian intake of claims as a result of restrictions imposed by other countries, particularly the United States, but such impact appears to be transitory and there is no clearly identifiable pattern. Likewise, the perceived generosity of Canada's refugee policies does not appear to be playing a major role in making Canada a preferred destination for refugee claimants, as Canada's proportionate share of refugee claims lodged in the major refugee receiving industrialized countries has remained fairly stable over the past 14 years.

Factors that may be contributing to intake of asylum claims are difficult to identify in any systematic way. There is some anecdotal evidence that the presence in Canada of a large base population of refugees from certain countries may be drawing additional asylum seekers from these countries. The asylum determination process may be providing an alternative route of access to Canada for individuals, related to persons already resident in Canada, who have difficulty qualifying for landing in Canada through regular immigration channels.

There appears to be some correlation between the level of refugee claim intake and the timing of major changes in Canadian immigration legislation. There also appears to be some correlation between level of intake and average elapsed time between arrival and removal of unsuccessful refugee claimants. The uncertainty created by the prospect of legislative change may be motivating prospective immigrants to lodge asylum claims here in an effort to "get in under the wire" before the changes come into force. Delay in removing unsuccessful refugee claimants may be drawing illegal migrants to use the refugee determination process as a means to gain temporary admission to Canada.

Beyond simple volume of demand for services as a legal aid cost driver, certain features of the current legal processes in which immigrants and refugee claimants are involved appear to be driving legal aid costs. For example, case management practices at the IRB, particularly with regard to case scheduling and utilization of the expedited process to grant refugee status in well founded cases, have a direct impact on the time lawyers are required to spend on individual cases. Requirements with respect to translation of documents, utilization of detention in cases involving immigrants and refugee claimants, and choice of where people are detained also have direct cost consequences for legal aid.

It is anticipated that legislative changes introduced under the new Immigration and Refugee Protection Act will exert short-term cost pressure on legal aid programs. The transition is likely to generate new legal challenges in relation to elements of the new legislation that depart from established practice. A number of test cases will likely be required before interpretation of the new legislative provisions is well established. On the other hand, the new Act simplifies certain elements of the present refugee determination process, most notably by addressing all grounds on which protection can be granted in a single hearing and providing that refugee status determination hearings shall be conducted by panels of one, rather than two, decision-makers.

Creation of a new right of appeal in asylum claims is likely to give rise to additional legal aid costs that will not be entirely offset by the anticipated reduction in the number of judicial review applications. Delay in implementation of the Refugee Appeal Division provides an opportunity for a more systematic analysis of the potential impact of this particular change that has been possible within the limited scope of this report.

It is unclear whether making significant changes in the way in which legal aid services are delivered to immigrants and refugee claimants might reduce legal aid costs. The most significant cost with regard to legal aid for refugee claimants relates to the time lawyers must spend with claimants debriefing them regarding details of their claim and preparing them for their hearing. In theory, it might be possible to reduce legal aid costs if some of this preparatory work could be handled by paralegals, who are paid less than lawyers.

Recent experience in Manitoba offers some evidence in support of this proposition. In Manitoba, most of the case preparation work is done by two salaried paralegals working with the Manitoba Interfaith Immigration Council. The legal aid tariff in that province provides far fewer hours for work on refugee claims than is allowed under the tariffs in British Columbia, Ontario and Alberta [116]. The total salary paid to the paralegal is likely considerably less than it would cost to pay lawyers for an additional five to six hours of preparatory work on each claim. However, there is a peculiar confluence of circumstances that make this arrangement possible in Winnipeg, circumstances that might not be readily reproduced in larger centres with much larger numbers caseloads. First, the senior paralegal at the Interfaith Immigration Council in Winnipeg is very experienced. Second, the number of lawyers representing refugee claimants in Winnipeg is very small, so the paralegals are able to establish a good working relationship with all of the lawyers involved without undue difficulty. Third, the claim intake in Winnipeg is sufficiently small that two paralegals can handle almost all of the work. As a result, there is minimum need for administrative support, coordination and supervision and therefore very limited overhead cost beyond the salary for the paralegals who are doing this work. To provide the same service in Toronto, where the annual intake of refugee claims is almost 100 times higher, or in Montreal where claim intake is almost 40 times higher than in Winnipeg, would require a much more complex administrative structure and unit costs would accordingly be substantially higher.

Both the Legal Services Society in British Columbia and Legal Aid Ontario have experience with providing services to refugee claimants through clinics that are staffed by salaried lawyers and paralegals. It is generally agreed that the quality of service provided through these clinics has been good. However, delivery of services through these clinics has not been any less expensive than it has been through the more common judicare arrangements with members of the private bar. The main reason for this is that lawyers and paralegals at clinics, between them, on average, devote more time to each case than do members of the private bar working under judicare arrangements. Lawyers in private practice complain that the time limits prescribed under legal aid tariffs are unrealistically low, and that they are effectively providing some services for free. This experience suggests that if paralegals are fully paid for the time they devote to each case, and if lawyers are to be paid for the minimum preparation time required from them when representing claimants at hearings, the net cost will be similar to what is currently being paid under judicare arrangements.

There is clearly scope for utilizing paralegals and trained client support workers at NGOs to provide some of the services required by immigrants and refugee claimants. But improved quality of service, rather than reduced cost, is the main benefit that is likely to be realized from such a change.

It is an open question how legal aid programs might best be modified to involve paralegals and trained client support workers more fully. Franchising arrangements that foster cooperation between lawyers in private practice and established non-government settlement organizations that are already providing services to immigrants and refugees may be an alternative to staff-based legal aid clinics that warrants further consideration. Such arrangements would enable lawyers in private practice to share the services of competent paralegals who are working in a structured, well managed environment and who are readily accessible to immigrants and refugee claimants who are seeking legal services. At the same time, the lawyers would not have to assume responsibility for directly employing the paralegals, but could work with them as required in individual cases. Since the settlement service organizations already have an infrastructure in place, the legal aid authorities could avoid the cost of having to operate specialized immigration and refugee legal aid clinics. Such an arrangement would foster innovation as groups of lawyers and NGOs put together different proposals for delivering legal aid services. It would also maintain a higher degree of freedom of choice of counsel than is possible in clinics that are operated directly by the legal aid authority.

[116] The legal aid tariffs in Ontario allow 16 hours of preparation time for refugee claims, while the average hearing time for such claims in recent years has been less than 4 hours. The tariff in British Columbia allows 15 hours preparation for hearings that are typically concluded in less than 5 hours. The Alberta tariff allows a total of 25 hours for each case, and most of that time is devoted to pre-hearing preparation. The Manitoba tariff allows only 10 hours for preparation and the first half-day of hearing.

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