An Analysis of Immigration and Refugee Law Services in Canada
Part One: Immigration and refugee law legal aid (continued)
STRUCTURE OF LEGAL AID
Delivery of services
In April 1999, Legal Aid Ontario (LAO) replaced the Law Society of Upper Canada as the administrator of legal aid. Legal aid services are delivered through a network of area offices, private bar lawyers, and community legal clinics. Both private bar lawyers and staff lawyers at area offices (including the Family Law Office and the Refugee Law Office) operate on a certificate basis. Private bar lawyers provide the majority of legal representation in general, and the majority of such work in the immigration and refugee law area in particular.
Ontario has 71 community legal clinics (CLCs) located throughout the province that are specifically designed to address the unique legal needs of low-income people. Accordingly, these clinics deliver the vast majority of poverty law services (including in social assistance, housing, employment insurance, Canada Pension Plan, employment, workers' compensation, and human rights cases), but many also provide services in immigration and refugee law issues. As per the recommendations of the 1997 McCamus Legal Aid review, the clinic network is being expanded towards the goal of ensuring that every region of the province has access to these services. Clinics employ staff lawyers and community legal workers to deliver services to low-income Ontarians. Some clinics are affiliated with law schools and rely on students assisting in the provision of services as part of their course work.
Although clinics are funded by legal aid, they are governed by independent, community-based boards. Each board is responsible for deciding the priorities and service areas for its particular clinic - a system that yields some unevenness in coverage across the province. In the Greater Toronto Area, most clinics have recognized the need for immigration and refugee law coverage due to the large refugee and immigrant population.
Each clinic serves a particular geographic area. Clinics generally assist only clients from within their area, although a client from another location may be taken on if there is an opportunity for an interesting test case, or in other unusual circumstances. The exceptions to this system are the fifteen specialty clinics that deal with the laws affecting particular groups of people (e.g., the disabled, the elderly). Specialty clinics serve all members of their particular client group, as well as acting as a resource to other clinics, private bar lawyers, community agencies, and others.
Eligibility for legal aid
Eligibility for legal aid is determined on the basis of financial assessment and merit testing. Legal aid applicants are required to undergo a financial assessment, which includes an asset test and an income test. In most cases, clients receiving social assistance or with similarly low incomes are eligible for legal aid, subject to asset limitations.
The income test considers all sources of income for the applicant and spouse, any dependent children, common-law partner, or same-sex partner. "Income" would include workers' compensation, employment income, employment insurance, pensions, social assistance, commissions, self-employed earnings, child tax benefits, and rental income. In determining net income, payroll deductions, day care, and child support payments can be used against gross income. In evaluating expenses, all necessary household expenditures are included: food, clothing, transportation, telephone, cable service, debts, and personal expenses. A basic allowance - or flat rate of money for an applicant, based on family size and type of shelter - is determined on this basis. Some other expenses may be allowed if legal aid determines that they are necessary for health or well-being.
All liquid assets are considered when assessing eligibility. However, assets valued to predetermined amount are not counted in the assessment of assets and liabilities.
|Family Size||Allowable Assets|
Source: Legal Aid Ontario Web site - Getting Legal Help.
In the immigration and refugee law area, applicants are interviewed to determine their financial eligibility. During this process they may be asked questions about the nature of their refugee claim to help determine whether there is a basis for their request for assistance.
In Ontario, priority is given to refugee claims because of the significance of the outcome to the individual and the difference that a lawyer is likely to make to the outcome. The merit screening process that is applied to refugee cases is in accordance with guidelines developed with the refugee bar - Legal Aid Ontario does not determine a claimant's credibility. Information on merit is collected through standard questions during an interview with an area office. This information is passed on to an individual who specializes in making eligibility determinations. Opinion certificates for staff lawyers at the Refugee Law Office (RLO) or private bar lawyers may also be issued to assist in making decisions about merit. Refuge claims are not covered by legal aid in cases where family sponsorship is a realistic alternative.
For refugees from countries with high acceptance rates , there is a more limited merit testing process. In these circumstances, area offices have been instructed to ask a claimant some basic questions to ensure that there is a reasonable basis for the refugee claim. If the answers to these preliminary questions are satisfactory, the matter is not referred to the specialized person for a detailed merit assessment.
TYPES OF SERVICE PROVIDED IN IMMIGRATION AND REFUGEE LAW ISSUES
The following table describes the types of services available for immigration and refugee law matters in Ontario.
|Type of Service||Provision of this Service|
|General advice or assistance||Yes. Advice is provided mostly through Community Legal Clinics (CLCs), although some advice is also delivered to refugee claimants by Refugee Law Office (RLO) staff.|
|Legal advice or assistance||Yes. Advice is primarily provided by CLCs and, in some cases, the RLO. This may include advice on legal rights and processes or efforts to access a person's immigration file through Citizenship and Immigration Canada.|
|Legal Representation||Yes. Cases are handled on a certificate basis through area offices and the Refugee Law Office (RLO), and on a non-certificate basis through CLCs.|
|Duty Counsel Representation||There is no formal duty counsel program for immigration and refugee law matters in Ontario. However, RLO staff lawyers do provide some informal services in the Greater Toronto Area.|
|Public Legal Education||Yes. PLE is provided mostly through the CLCs and Community Legal Education Ontario (CLEO).|
|Translation or Language Assistance||Yes. Translation and/or interpretation services are offered as a disbursement item. The RLO has multilingual staff to provide services in a number of languages.|
As with other areas of legal aid service provision, the majority of advice on immigration and refugee law issues is provided through CLCs, with some persons also going to the RLO for advice on refugee claims. The LAO representative noted that the provision of general advice is not a big component of legal aid services outside of the CLCs in the immigration and refugee law area. The majority of people come to an area office to obtain a certificate - once they have a certificate they can get advice from their lawyer.
CLCs provide two kinds of advice service: (i) summary advice, including a phone call, referral, or brief interview; and (ii) assisted client self-help or brief services, including summary substantive legal advice, information about procedures, accessing federal immigration files, and assistance with the drafting and filing of letters and forms. Within the CLC context, the volume of advice cases is significant. A representative of Parkdale Community Legal Services  noted that, of the approximately 150 ongoing cases in the immigration and refugee law area, 60 to 70 are brief service cases. In addition, the clinic gets five to six new intake cases each day on immigration and refugee law issues.
Advice is also provided by staff at the Refugee Law Office (RLO). Located in Toronto, the RLO employs four staff lawyers (one part-time), three paralegals and two support staff. RLO staff lawyers and paralegals primarily provide advice through two channels. First, when people who apply for legal aid do not have a lawyer they tend to be referred to the RLO. According to an RLO respondent, many of these cases end up being resolved through the provision of only advice. Second, the RLO fields many calls for general information and/or advice on a specific client case from community agencies serving refugees and immigrants. RLO staff also provide advice on a drop-in basis, but respondents indicated that this is a small percentage of their work.
Private bar lawyers handle the majority of immigration and refugee law cases on a tariff basis. However, staff lawyers at the RLO and staff lawyers and community legal workers at the CLCs also provide legal representation. According to a representative of the RLO, the majority of refugee claimants apply through this office.
Legal aid applicants are entitled to the lawyer of their choice and requests for particular private bar lawyers are respected. However, if they do not have or know of any particular private bar lawyers, clients are directed to the RLO. One respondent suggested that clients are initially funneled towards the RLO in an attempt to ensure that this office maintains a sufficient caseload. It is more difficult for the RLO to develop its caseload because, with only one office, staff lawyers do not benefit from the connections that develop within particular neighbourhoods and immigrant/refugee communities located in other parts of the Greater Toronto Area and/or the province. The bulk of the certificate cases (estimated at 90 percent) handled by the RLO are in the area of Convention Refugee determination, with approximately 5 to 10 percent of these cases not moving past the opinion stage. The next largest category of certificate cases handled by the RLO is Federal Court judicial reviews.
Paralegals also play a role in the provision of legal representation in immigration and refugee cases. Private bar lawyers may hire paralegals to assist in certificate cases, with the associated expenses covered under a specific legal aid tariff item. As noted above, three paralegals are employed at the RLO and are largely involved in case file preparation, client interviews, and research on refugee source countries. However, paralegals also undertake activities such as the preparation of draft Personal Information Forms for Convention Refugee claimants, representation in expedited Convention Refugee hearings, and representation for Detention Reviews on a non-certificate basis.
Both private bar and staff lawyers provide legal aid coverage for the same range of immigration and refugee law issues. However, the fact that staff lawyer case activity at the RLO is recorded on the same basis as lawyers on certificates, means that their work is tied to established time and remuneration limits of the tariff structure. The legal representation provided through CLCs is not undertaken on a certificate basis, so the overall approach to cases is slightly different. For Parkdale Community Legal Services, it was reported that immigration and refugee cases tend to last longer (frequently over a year) than many other cases in other areas of law. As a result, there is less case turnover on the immigration and refugee front.
There is currently no legal aid duty counsel function in the immigration and refugee law area in Ontario. LAO formerly offered a duty counsel-like service for detention reviews, a function that is now covered on a somewhat informal basis by the RLO. According to an RLO representative, the detention review service is a cross between the functions of duty counsel and staff lawyers. It is similar to duty counsel in that it does not operate on a certificate basis, with the complete financial and merit testing process used in other contexts. However, there is more continuity in this service than with typical duty counsel service, because cases remain with RLO staff for a longer time. Also, detainees are usually interviewed prior to the actual review, so this service is not like criminal duty counsel where lawyers simply show up at court to deal with the cases of the day. RLO staff learn about persons facing detention review informally through contacts with non-governmental and community organizations, private bar lawyers, prison chaplains, and from direct client contacts (detainees often learn about this service from other detainees).
Since there is only one RLO, located in Toronto, the detention review service is not available in the rest of the province. According to two respondents, the geographical limitations of this service increasingly present problems for two reasons. First, it is expected that new attitudes and legislative changes post-September 11th will yield more detentions among the refugee population. Second, provincial immigration authorities are increasingly sending refugee detainees out of Toronto, due to a lack of institutional resources within the city. For the RLO, meeting the needs of detainees outside of the city is difficult, yet a legal aid respondent noted that other parts of the province may not have sufficient private bar lawyers with immigration and refugee expertise to undertake this work. In response to this issue, there has been some discussion of the possibility of expanding the RLO model to other jurisdictions.
Public legal education
The LAO representative noted that the bulk of the public legal education work done through legal aid is carried out by CLCs and Community Legal Education Ontario (CLEO).
Since CLCs are the resource through which legal aid applicants and clients can receive summary advice and/or brief services, they are also where self-help and other literature is distributed to individuals and groups. Clinics are also involved in hosting outreach and educational events in the community, often in co-operation with other organizations serving refugees and immigrants. CLCs also participate in training events for front-line and advocacy workers, and community resource events that bring together a wide variety of service delivery organizations.
CLEO is a CLC that specializes in public legal education. CLEO's staff includes lawyers, editors, support staff, and a part-time librarian. Most of the publications produced through CLEO are targeted to people with low incomes and other disadvantaged groups, but they are also used by CLCs and community organizations. The goal of most materials is to describe the law as simply and clearly as possible to help people understand and exercise their legal rights. The majority of materials are booklets, fact sheets, pamphlets and manuals on topics such as social assistance, landlord/tenant law, immigration and refugee law, workers' rights, family law, elder abuse, consumer rights, women's issues, and law affecting young people. Most publications are available in French, and some are also available in other languages. Many can also be accessed online through the CLEO Web site.
The RLO provides some public legal education, particularly with organizations serving refugees and immigrants in the community. Although this is more limited than what is available through the CLCs, the RLO respondent noted that it is an area in which the office hopes to expand its services in coming years.
LAO provides translation and interpretation as a disbursement item for immigration and refugee cases. These services are available for both interviews with clients and for the interpretation of documents. The LAO representative noted that translation and interpretation is a significant expenditure for legal aid.
The RLO attempts to hire people with skills in different languages to assist in the processing and completion of the refugee claims that it handles.
Availability of legal aid for eligibility determinations
According to a representative of LAO, legal aid coverage is technically available for decisions about eligibility (e.g., Port of Entry and Inland Claims determinations), but this coverage is seldom actually used, since the vast majority of refugees and immigrants are found to be eligible. At present, the rare instances in which legal aid is provided include when LAO is (in some manner) made aware of the fact that an immigrant/refugee is likely to be found ineligible, or if there are significant questions around criminality. The LAO respondent noted that the issue of eligibility may become more significant under new, post-September 11th legislation. If more restrictive eligibility requirements result in a greater number of people being found ineligible, legal aid may have to consider extending coverage to include this area.
The following data was provided by legal aid representatives on the services provided in the immigration and refugee law area for the last three fiscal years.
|Fiscal Year||Total Number of Certificates Issued||Immigration/Refugee Certificates Issued|
|Number of Certificates||Percent of all Certificates|
* This number is reported as listed in the data collection charts for Ontario, and as 8,731 in the Legal Aid Ontario 2000-2001 Annual Report. The reason for this discrepancy is unknown.
Sources: Data collection charts for Ontario and Legal Aid Ontario 2000-2001 Annual Report.
While overall data on the number of certificates issues is not yet available for the 2000-2001 fiscal year, the above table demonstrates that, in previous years, immigration and refugee law constituted a small percentage of all legal aid certificate cases in Ontario. The table below indicates that Convention Refugee Determination (CRDD) cases constitute by far the largest component of legal aid work on immigration and refugee law matters. This data also suggests that the number of CRDD cases has increased over the last three years, as has the proportion of the legal aid certificate caseload that they comprise.
|Fiscal Year||Convention Refugee Determination Certificates||Other Immigration Certificates*|
|Apr. 1 2001 - Jan. 31 2002||10,653||94||699||6|
* This category includes Adjudication Division cases, Humanitarian and Compassionate applications, and Immigration Appeals Division cases.
Source: Data collection charts for Ontario.
Within the "Other Immigration Certificates" category, the only legal issue for which separate data was provided is Detention Review. The category of "Other Immigration Certificates" does not include Federal Court Judicial Review or Appeal cases or Supreme Court Appeal cases. The number of cases covered in these areas is tracked separately across all legal issue areas covered by Legal Aid Ontario. There is no separate recording of Federal Court or Supreme Court cases in the immigration and refugee law area.
|Fiscal Year||Number of Detention Review Certificates|
Source: Data collection charts for Ontario.
With respect to the legal representation provided by CLCs, the table below summarizes the range of immigration and refugee law services provided by the 27 clinics in the Greater Toronto Area - the area with the greatest concentration of immigration and refugee work in the CLC context.
A limited amount of data is available on the cost of immigration and refugee law cases, and this data pertains only to the cost of certificate cases, not cases handled through CLCs on a non-tariff basis. The table below provides the average cost of Convention Refugee Determination certificate cases and Other Immigration certificate cases that have been completed (the case file has been closed) in the last three fiscal years.
|Fiscal Year||Average Cost of Completed Cases|
|Completed CRDD cases||Completed Other Immigration cases|
|Apr. 1 2001 - Jan. 31 2002||$1,034||$598|
Source: Data collection charts for Ontario.
|Certificate Fees||Disbursements||Administration Fees||Total Cost|
Source: Legal Aid Ontario 2000-2001 Annual Report.
Although data on sex and age are collected, these characteristics are not typically reported on by legal aid. Accordingly, the amount of work involved in accessing the information and breaking it down for immigration and refugee law cases proved prohibitive for respondents. However, data is available on the country of origin of Convention Refugee Determination clients for the last three fiscal years, as recorded in the following table.
IMPRESSIONS ABOUT LEGAL AID COVERAGE AND SERVICE DELIVERY
Case volume versus funding constraints
The number of cases being handled by legal aid in Ontario has grown exponentially over the last several years, placing increased demands on the current legal aid framework. The LAO representative characterized this increase in demand as reaching "crisis proportions," particularly when viewed against the fact that the legal aid budget for the province is fixed, and may actually be scaled back in coming years. Ongoing efforts to develop services in the face of the sheer volume of need in the community raise questions about the ability to maintain current service levels, particularly in light of the expectation that the new immigration legislation will create additional pressure by introducing a new level of appeal. Overall, the situation in Ontario has led some people to question whether the current system of providing legal assistance to low-income people is the best approach to service delivery.
Areas of coverage
All respondents noted that there are always questions and concerns around the range of issues for which legal aid coverage is available, and the unmet needs that exist in areas for which there is no assistance. For example, there is no coverage for Post-Refugee Determination cases, even though there are many instances of cases with merit, and there is little coverage of Humanitarian and Compassionate applications. The LAO respondent noted that increases in case volume, without corresponding increases in funding, have fostered concerns about a possible reduction of the range of issues covered by legal aid. Community organizations serving refugees and immigrants may be trying to fill some of these gaps, but the lack of legal expertise among their staff members is a limiting factor.
The CLC and RLO respondents also noted pressures around coverage, particularly in terms of gaps created by the unevenness of the services available at clinics. When the geographic limitations of CLC service provision are combined with the fact that not all clinics cover the same range of issues, the result is that people in need sometimes fall through the cracks. While many CLCs do try to assist people from outside of their areas (at least through the provision of summary advice), inconsistency in the availability of services is an ongoing problem. A solution proposed by the CLC representative is the creation of a special certificate category for issues that would typically be covered by a clinic, but for which there is no appropriate clinic available. This certificate would permit a client to see a private bar lawyer in their area for up to two hours of legal advice.
Given the constraints on clinics, two particular areas of concern were noted by the RLO representative: the limited options for people whose cases are found to be without merit, if they cannot afford a private bar lawyer; and the lack of availability of advice on immigration law issues.
Role of community organizations
Respondents noted that community organizations serving refugees and immigrants have a wealth of experience and knowledge that is very valuable. However, the complexity of immigration and refugee legal issues makes it difficult for these organizations to become involved in the delivery of legal services in this area. Accordingly, respondents had some concerns about the range of work that community organizations are (or will be) expected to take on - particularly in light of concerns about increasing legal aid case volume and the implications of the new immigration legislation, the Immigration and Refugee Protection Act.
The CLC respondent noted that there are not enough language resources available to clinics. Hiring staff with multiple language skills is one part of a language strategy, but staff turnover limits the utility of this strategy, particularly for those clinics affiliated with law schools. Family and friends of clients can sometimes offer assistance, but this is also uneven and not always reliable. The lack of language assistance available in CLCs was characterized as a major concern.
Some respondents expressed concern about immigration consultants, particularly in terms of their knowledge and honesty in dealing with refugees. The perception is that it is far too easy to become a consultant, given that consultants could be in a position to take advantage of the vulnerability of refugees and immigrants. Examples of such behaviour cited by respondents include charging fees that are far too high, providing inaccurate information, or simply failing to complete the work they agreed to do.
Service delivery models: the RLO
Respondents noted that the RLO model is working relatively well in terms of meeting the needs of refugees. The use of paralegals with specialized knowledge of refugee issues was noted as an important factor in the effectiveness of this office. However, it was acknowledged that paralegals tend to be rarely employed in private bar lawyer immigration and refugee law work - a fact that an RLO respondent considered to be typically due to cost considerations. This representative noted that it is unlikely that tariff limits provide private bar lawyers with sufficient income to employ full-time paralegals, particularly within a practice focussed exclusively on refugee law. This RLO respondent went on to note that the involvement of specialized paralegals is of increasing value in light of the formalization of rules and regulations in immigration and refugee law. Such staff members can play a key role in helping to ensure that applications are complete and timely.
Community-based approach to legal aid
According to two respondents, the community-based approach to the provision of legal aid services, reflected in the network of CLCs, is a successful component of the system for delivering legal assistance to low-income people. The clinic staff's flexible approach to service delivery, and the resulting range of assistance available to clients, goes a long way towards ensuring that people receive the help they need. As reflected in data on the large number of people receiving basic assistance and/or advice, this is a very important aspect of CLC work that is not available through other legal aid structures.
In addition to the delivery of a wider range of services, a positive feature of the clinic system is the fact that they are rooted in the communities they serve. Each CLC is governed by an independent board of directors with representation from the community. This ensures that clinics are able to set priorities consistent with local needs and values, to adapt to changing circumstances in their areas, and to provide direction on future services in a manner that suits community members. Because these boards are composed of volunteers, respondents acknowledged that there can be problems in recruiting new members and ensuring continuity within board operations as membership changes. Overall, however, it was acknowledged that the CLC boards are working in the majority of locations.
Clinic expansion program
Related to the above comments concerning the effectiveness of the community-based approach to legal aid are respondent's comments that the expansion of the CLC network that is currently under way in Ontario is a positive development. Developing clinics in regions of the province that previously lacked such structures will clearly improve access to legal assistance for low-income persons and reduce geographic inequalities of service.
Collaboration between legal aid area offices and CLCs
Other respondents noted that legal aid area offices, in the past, were not always well informed about CLCs and the services they provide. Both Legal Aid Ontario and local offices have done a considerable amount of work in recent years to overcome this obstacle. According to the respondent, the result has been increased opportunities for collaboration and cross-referral.
Merit testing for coverage decisions
Respondents noted that while there is ongoing debate about whether or not merit should be considered in legal aid coverage decisions, merit screening does help to ensure that funds are focussed on cases where there is genuine need. The elimination of merit testing would likely result in an increase in the number of cases granted coverage, which correspondingly would mean a decrease in the amount of time available for each case.
Conversely, the CLC representative noted that there are instances in which clinics take on - and win - cases that have been rejected on merit grounds. From this perspective, merit testing may actually eliminate some cases that do have merit.
 Respondents suggested that Parkdale Community Legal Services would be a good CLC to contact for this project, on the basis that it handles more immigration and refugee cases than many of the other clinics in the Greater Toronto Area.
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