Representation for Immigrants and Refugee Claimants
This study has been 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 (IRPA). From responses received in interviews with over 150 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 with respect to the Canadian legal system and with respect to the substantive law applicable to their particular situation is extremely limited. It is therefore totally 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.
Respondents interviewed for the study focussed most of their comments on issues relating to representation for refugee claimants, as distinct from the immigrant population in general. Persons who immigrate to Canada through regular immigration channels are less likely than refugee claimants to become involved in legal proceedings for which representation is required. These immigrants are also more likely than refugee claimants to have sufficient resources to hire counsel to represent them when required. This is consistent with the fact that over 90 percent of legal aid expenditure in Canada devoted to immigration and refugee matters is directed to providing representation for refugee claimants. Bearing these considerations in mind, the study has been directed primarily to examining the representation needs of refugee claimants.
Legal aid for immigrants and refugee claimants
The IRPA provides that persons who are the subject of proceedings under the Act have a right, at their own expense, to be represented by a barrister, solicitor or other counsel. However, exercise of this statutory right is limited to situations where the person concerned is able to pay for such counsel. As a practical matter, for immigrants and refugee claimants who do not have the financial resources to pay for legal counsel, the exercise of this right to counsel is largely dependent on availability of legal aid.
Legal aid services in immigration and refugee matters are delivered predominantly by members of the private bar under judicare arrangements. British Columbia, Ontario and Alberta have legal aid tariffs that allow lawyers to charge an hourly fee, subject to time limits for specific services. Quebec and Manitoba pay a flat fee for most legal aid services relating to immigration and refugee matters. Newfoundland, alone among the six provinces that provide coverage for immigration and refugee matters, delivers legal aid services to immigrants and refugee claimants exclusively through staff counsel.
There is now a growing acceptance that mixed approaches, which include elements of the judicare and staff models, offer advantages over pure variants of either model.
Legal aid authorities in Alberta and Manitoba have established pilot projects to evaluate the utility of using paralegals to provide some of the services currently being provided by lawyers in most other jurisdictions.
In provinces that do not have legal aid coverage for immigration and refugee matters, non-government organizations (NGOs) have stepped in to assist immigrants and refugee claimants who cannot afford to hire counsel. The work being done by volunteers and by NGOs that are functioning on very limited budgets is filling a pressing need. But the people who are providing these services pointed out that their services are not a realistic substitute for legal representation properly funded by legal aid. Respondents who are providing these services were concerned that they are being used by government to provide a cheap substitute for legal aid that is sorely needed by the clients they serve.
Need for 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 important it becomes to have full legal representation provided by a lawyer.
Respondents' views on the need for representation at admissibility interviews were sharply divided. Citizenship and Immigration Canada (CIC) and Immigration and Refugee Board (IRB) respondents saw little need for representation at these interviews, while most service providers felt there is a need for refugee claimants to be represented at these interviews, or at least to have ready access to advice before the interview. Most claimants felt that, in most cases, it would be sufficient to have access to advice and information before the interview.
There was near unanimity among respondents that refugee claimants need substantial assistance to prepare their personal information form (PIF) and to get ready for the hearing on their claim. Most respondents agreed that there is need for a lawyer to be involved at the preparatory stage, at least in a supervisory capacity, to make sure that all of the issues are adequately addressed. However, there was also general agreement that experienced non-lawyers working under the supervision and guidance of a lawyer can handle much of the pre-hearing preparation.
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 issue 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 representation by a lawyer is required for any inquiry involving complex legal issues.
Persons filing appeals on humanitarian and compassionate grounds (H&C appeals) require assistance, but legal representation is generally not considered necessary. However, legal representation is considered to be an absolute necessity for judicial review applications. Representation is also considered necessary for most immigration appeals, particularly for removal appeals. For straightforward appeals that do not raise complex legal issues, the needed representation can be provided by supervised paralegals and experienced immigration consultants; however, full legal representation is considered to be necessary for complex appeal cases.
Special representation needs
Approximately half of the respondents identified women, minors and persons with mental disabilities as having special representation needs. Women who have been victims of gender-based persecution and women who come from cultures where they have been completely subordinate to men may have difficulty relating their stories to strangers, particularly to men. Respondents suggested that it is preferable, where possible, to allow refugee claimants to choose who will represent them, but they did not see same-gender representation for female refugee claimants as a self-evident requirement.
Designated representatives for minors and persons with mental disabilities need to be appointed as early as possible in the process. Respondents noted that the present practice of appointing a designated representative for these individuals at the commencement of their IRB hearings creates many problems. They also noted that many of the persons appointed as designated representatives do not understand the nature of their role and their responsibilities in legal proceedings involving minors and persons with mental disabilities. Respondents identified the present system in place in Montreal, under which the Service d'aide aux réfugiés et immigrants du Montréal Métropolitain (SARIMM), a special agency established by the Quebec government, acts as designated representative in cases before all three divisions of the IRB, as an excellent model for overcoming these problems.
Victims of torture and other extreme trauma need special support to cope with their experience and they require intensive psychological counselling to deal with the stresses associated with recounting that experience in hearings before the IRB.
Immigrants and refugees who are aged, infirm, illiterate or particularly unsophisticated require additional assistance to cope with the complexities of the legal proceedings in which they are involved.
Legal proceedings involving immigrants and refugee claimants who do not speak either of Canada's official languages have to be conducted through an interpreter. This creates special challenges for the persons concerned because of the problems inherent in communicating the nuance and emotional impact of testimony presented through an interpreter. Additional problems arise when the interpreter is associated with an ethnic group that is perceived to be hostile to the ethnic group of the person concerned.
Representation and fairness of process
Proceedings under the IRPA that affect life, liberty and security of the persons concerned must presumably be substantively and procedurally fair. Immigrants and refugee claimants who do not understand the issues or the nature of the proceedings, assistance or representation from a third party is a necessary element to ensure that the process is fair and that it is conducted in accordance with the principles of fundamental justice. Respondents differed in their assessment of when representation is required, and as to what type of representation is required in particular circumstances. But all respondents were of the view that, where representation is required and the persons concerned cannot afford to hire counsel, there is need for some form of publicly funded representation.
Representation and efficiency
Respondents were generally in agreement that participation by a competent representative enhances the efficiency of all proceedings after the initial intake stage (i.e., admissibility and eligibility interviews). They also agreed that participation by incompetent representatives has a very negative impact on efficiency at all stages.
With respect to admissibility and eligibility interviews, there was a sharp division of opinion between respondents from CIC and the IRB, on the one hand, and service providers (lawyers, paralegals, immigration consultants, and NGO staff) on the other. The former felt strongly that participation by representatives at that early stage is unnecessary and would severely impair efficiency. Most service providers were of the view that some form of representation, or at least advice, for these interviews would reduce misunderstandings that create problems at subsequent stages in the refugee determination process.
Choice of representative
Most refugee claimants interviewed for this study expressed a strong preference for being represented by a lawyer and for being able to choose their own counsel. In reality, most claimants have little or no idea 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. However, the capacity to make that choice, as opposed to being assigned a representative, is very important to most of the refugee claimants who were interviewed for the study.
Availability and quality of representation
At present the level and quality of representation services 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 to provide the necessary representation services.
Even in provinces where legal aid is available, the quality of representation varies widely. According to respondents, many of the lawyers working in the field are highly qualified and dedicated advocates. But respondents also noted that low legal aid tariffs have caused many of the most experienced counsel to withdraw from representing legal aid clients.
Respondents from Quebec reported that many lawyers in that province are now charging legal aid clients additional fees over and above the amount paid under the legal aid tariff. As a result, they were concerned that free legal representation for immigrants and refugee claimants who are unable to afford to pay for a lawyer is becoming increasingly difficult to access in that province.
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 also reported that unqualified, unregulated immigration consultants are taking advantage of unwitting refugee claimants. Respondents had major concerns about the role played by interpreters in directing immigrants and refugee claimants to particular immigration consultants and lawyers who are providing poor quality representation for the persons concerned.
There was virtual unanimity among respondents that there is a pressing need for effective regulation of all persons who purport to represent immigrants and refugee claimants.
Proposal for integrated service delivery
Integration of the delivery of legal services with delivery of other settlement-related services such as housing, health care, and language training would greatly simplify things for newly arrived immigrants and refugee claimants.
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 service. Community legal workers (paralegals) at clinics are able to provide needed assistance in relation to housing, social services, and related matters that go beyond strictly legal representation. Many of them are also able to serve clients in their native language, and to provide interpretation and translation services that must otherwise be contracted out.
There is scope for large, well-managed settlement organizations, working in close co-operation with lawyers, to play a more active role in integrated delivery of social services and legal assistance and representation services for immigrants and refugee claimants. This could be accomplished through arrangements under which consortiums of lawyers, working in association with these settlement organizations, could contract with legal aid authorities to deliver representation services in accordance with clearly established standards, on terms agreed to by the legal aid authorities and the service providers.
Present legal aid tariffs in most provinces do not include provision for payment of services delivered by non-lawyers. As a result, they are not well adapted to enabling the establishment of arrangements involving lawyers and non-lawyers in a team-based approach to service delivery. These tariffs would have to be modified to make possible integrated service delivery built on close co-operation between lawyers and settlement organizations.
Any arrangement involving lawyers and non-lawyers in the provision of representation services would have to be structured in a way that ensures transparency in funding arrangements and accountability for the quality of representation provided.
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