Immigration and Refugee Legal Aid Cost Drivers

3. Cost drivers unique to immigration and refugee legal aid (cont'd)

3. Cost drivers unique to immigration and refugee legal aid (cont'd)

3.3 Conditions in source countries as "push" factors

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.

In common discourse, people attempt to distinguish between so-called "genuine refugees" and "economic migrants". But this distinction is somewhat misleading. Many of the individuals who present refugee claims are not refugees within the strict meaning of the 1951 United Nations Convention relating to the Status of Refugees and the 1967 Protocol to that Convention (together referred to as "the Refugee Convention"), but they are fleeing from inhuman and intolerable conditions in their home countries. On top of the millions who are driven from their homes by war, famine and other catastrophes, millions more are forced to move in order to survive because they are simply unable to eke out a living in their place of origin. In many cases the search for better economic prospects and the struggle for survival are hard to distinguish.

It is impossible to provide any detailed estimate of the number of people who are on the move because of "push" factors, but it is generally agreed that the number is huge. The 22 million persons identified by the UNHCR as persons of concern are primarily victims of political and ethnic persecution, general civil conflict or environmental disasters. The number of forced economic migrants who do not fall within the UNHCR mandate may be as large or even larger than the group identified as refugees or internally displaced persons who are of immediate concern to UNHCR.

Approximately 57% of the population of concern to UNHCR are outside their countries of nationality, either seeking asylum or living as refugees in some other country. Roughly 3.5 million of these are living in Western Europe, the United States, Canada and Australia (UNHCR, 2001). Approximately 148,000 were identified as living in Canada in 2000.

Conditions in countries of origin serve primarily to initiate migration. These "push" factors do not, generally speaking, influence the choice of where the person migrating will go. Canada, in particular, as a destination quite remote from the countries from which most immigrants and refugee claimants originate, is not likely to be an obvious destination unless there are other factors influencing the person's choice. However, once people have made the decision to move, there are factors associated with particular countries of origin that influence the choice of Canada as a preferred destination. It is this combination of conditions in countries of origin and links with Canada that influence the number of refugee claims that are made in Canada, as opposed to other developed countries. Thereby, this combination acts as a secondary driver of legal aid costs in Canada.

3.4 Refugee claim distribution dynamics among industrialized countries

International population flows are unlikely to have any significant cost impact on legal aid programs in Canada, except to the extent that prospective migrants to Canada are driven to use the asylum determination process as a way to gain entry to Canada.

The number of potentially mobile people in countries that are in a state of civil and economic upheaval is huge, though there is no way of making a meaningful count. Many of these individuals are prepared to go to great lengths to gain admission to a developed, industrialized country in the West where they have some prospect of finding stability and personal security. Of these, many have a well-founded fear of persecution in their home country and readily qualify as Convention refugees. Many others face intolerable living conditions in their home country, but do not meet the legal requirements to qualify as refugees. Others are pure economic migrants seeking to move in search of a better life. What they all have in common is very little prospect of qualifying for admission to their desired destination countries as regular immigrants.

The large migration flows that have taken place since World War II are made up of a mix of economic migrants and people who are forcibly uprooted by civil strife and environmental disasters. It is impossible to estimate with any precision the portion of the migration flow that is attributable to civil strife and environmental crises and the portion that is driven simply by the quest for improved economic circumstances. Most of the movement has been between less developed countries in the third world. Notwithstanding the restrictions on migration imposed by developed industrialized countries, a substantial number of migrants arrive in these countries each year. Some arrive as legal migrants, some arrive as refugees, and others arrive as illegal migrants simply seeking work.

Of all migrants seeking entry to the seventeen developed countries that comprise the Intergovernmental Consultations on Asylum, Refugee and Migration Policies in Europe, North America and Australia) [39] in 2000-2001, 542,971 claimed asylum [40]. The total number of asylum claims presented in IGC countries has been fairly stable (between 542,000 and 555,000) over the past three years (see Appendix 1 - Sheet 1).

Over the past thirteen years, Canada's share of all asylum claims made in IGC countries has averaged around 5%. The annual level of claim intake over much of that period has been around 25,000, but between 1998 and 2001, annual intake rose from 25,396 claims to 44,502 claim, representing an increase from 5% to 8% of all claims lodged in IGC countries (see Appendix 2 - Sheet 2). Between January and June of 2002, the number of refugee claims made in Canada has declined by 28% from the number received in the preceding six-month period. But this decline has been matched by a decline in claims lodged in other IGC countries (UNHCR, 2002). As a result, Canada's share of the total is likely to remain around 8% for 2002.

The situation in Canada is somewhat different from that in other IGC countries because of Canada's geographic position. To reach Canada, one must traverse the Atlantic or Pacific Ocean, the Arctic, or the United States. Migration over the northern route is totally impractical and can therefore be disregarded. Arrivals from Europe, Asia or Africa are overwhelmingly made by air. The number of immigrants arriving by sea in recent years has been negligible as a portion of total immigration to Canada. A significant number of immigrants and refugee claimants do arrive in Canada via the United States, having either traveled overland from South America or having arrived in the United States by air and moved on to Canada. The significance of Canada's sheltered position in geopolitical terms is that this country does not have to deal with overland arrival of as large a number of migrant labourers as do the United States and member countries of the European Economic Community. The number of these illegal migrant workers in Canada is impossible to determine because Canada does not keep track of when visitors to the country depart. Also, migrant workers who are illegally in the country avoid contact with the authorities as much as possible. Since their contacts with the legal system are limited, it is assumed for purposes of this inquiry that the cost impact that migrant workers who are not seeking asylum have on legal aid programs in Canada is small.

Beyond the migrant labourers, however, are the many refugees and economic migrants for whom making an asylum claim represents the only (or best) option for gaining admission to a desired host country. The IGC numbers reviewed above provide a reasonable indicator of the magnitude of this population and of trends in its distribution among the countries that are favoured destinations. Fluctuation in the percentage of all asylum claims made in select IGC countries, including Canada, is illustrated graphically in Chart 5 [41].

Chart 5 – Refugee Claims filed in selected IGC countries – Percentage of total claims filed from 1994 to 2001

Refugee Claims filed in selected IGC countries - Percentage of total claims filed from 1994 to 2001
[Description of Chart 5]

Source Appendix A - Sheet 2

Relative to many other countries in the IGC, the level of refugee claims made in Canada has been quite stable. For example, claim intake in Germany rose from 121,316 in 1989 to 438,191 in 1993. German intake has subsequently declined to 118,306 in 2001. As a percent of the total IGC intake, the German intake has varied from a high of 52% to a low of 21%, with wide year-to-year variations in between. Comparable volatility has occurred in the United Kingdom and the United States. The Netherlands, Sweden, and Switzerland have also experienced year-to-year fluctuations wider than those experienced in Canada. Year-to-year fluctuations in most other IGC countries have been comparable to those experienced in Canada (see Appendix "A").

The variation in claim intake in other countries does not appear to be closely associated with shifts in the number of claims received in Canada. At the same time that refugee claim intake was declining rapidly in Europe, from 1992-1994, there was a sharp decline (1992-1993) in Canada and a sharp increase in the United States. The situation in Europe and Canada stabilized in the mid-1990s. At the same time, there was a significant decline in the number of claims lodged in the United Kingdom and the United States. After 1997, the number of claims made in Europe, including the United Kingdom, began to climb again, while claim intake in the United States continued to decline. Intake in Canada remained stable, at around 25,000 claims per year, until 1998, when the number of new arrivals began to increase.

During most of the period of sharp decline in the United States and in Europe, applications in Canada remained relatively stable. The increase in Canada, from 25,396 claims in 1998 to 30,887 claims in 1999, may have been linked with the continuing decline in the United States, or it may have been linked to the increase that was already underway in Europe. But that runs contrary to the continued increase experienced in Canada over the past two year, when applications in the United States have been increasing and applications in Europe have been declining.

The absence of any clear correlation between intake trends in Canada and in other IGC countries suggests that policy shifts that affect claim intake in other developed Western countries do not have a significant influence on claim intake in Canada. The number of refugee claims made in Canada appears to be influenced more by other factors specific to Canada and the countries from which most refugee claims made in Canada originate.

3.5 Factors influencing choice of Canada as a host country

The level of intake of immigration and of refugee claims from particular countries is influenced by a complex mix of factors that vary from one country of origin to another. Robert F. Barsky (1997) has examined the factors that influenced the decisions of different groups of refugees to choose Canada as a host country. He found that the country of origin is a significant variable. Refugees from different countries of origin had different motives for choosing Canada, motives which they tended to share in common with other refugees from the same country of origin, but not necessarily with refugees from other countries of origin.

The Peruvian refugees whom Barsky interviewed chose to come to Quebec primarily because of the presence of other family members there. A perceived affinity between Quebec and Latino cultures, and distaste for the United States as a destination because of the perceived relationship between oppressive Peruvian regimes and American involvement in the country also influenced their choice. Other factors that influenced the choice were accidental, for example utilization of Gander as a stopover point for Aeroflot flights, and visa and other travel restrictions, which influenced the route of travel.

Respondents from Russia and Ukraine saw Canada as an "immigration country" with a multicultural society that admits refugees and persons from other cultures. Knowledge of the existence of a Russian or Ukrainian community in Canada and perception of a strong resemblance between Canada and their countries of origin (climate, geography, level of education) were also important factors. Even though many of these individuals were encouraged by immigration officials in Gander to make their claims in St. John's, they chose to move to Montreal where they had family or friends and because they felt they had better prospects of being accepted in the community there.

The Barsky study identifies other factors beyond those listed. For example, his Pakistani respondents had no particular interest in coming to Canada and very little knowledge about this country. It was the agents who had assisted their departure from Pakistan and Pakistanis in New York who encouraged them to make their claims in Canada. But a recurring theme with many of Barsky's respondents is the importance of some prior connection with Canada, either though presence of family, friends or an anchor community from the country of origin. Factors of this sort influence the mix of immigrants and refugee claimants who choose to come to Canada. The strength of particular factors may also influence the number of persons who come, which in turn has a predictable impact on legal aid costs.

3.6 Impact of Canadian interpretation of the Refugee Convention

Another factor that is sometimes mentioned as possibly drawing refuge claimants to Canada is the liberal approach to interpretation of the Refugee Convention that is applied in this country. The contrast in interpretation is particularly notable between Canada and most countries in Europe. The Canadian interpretation of the Convention refugee definition set forth in Article 1 of the Refugee Convention, and incorporated in Canadian law in section 96(1) of the Immigration and Refugee Protection Act [42], differs from the interpretation in most European countries in two important respects. Canada applies a more expansive interpretation of "particular social group" as one of the five grounds on which refugee status can be granted. Canada also does not require that the agent of persecution be associated with the State or that the State acquiesces in the persecution, which most European countries do. As a result, many people - for example women fleeing domestic violence or other forms of gender-based persecution - who have little chance of qualifying for refugee status in Europe can make a successful claim in Canada.

One might reasonably suppose that this difference in approach would draw claimants to Canada and act as a driver for legal aid costs. However, the limited movement there has been in Canada's share of overall intake of refugee claims made in IGC countries does not in any way correlate with high profile developments such as 1993 Supreme Court of Canada decision in Canada (A.G.) v. Ward, which expanded application of the 'particular social group" provision in the definition of a Convention refugee. In fact, the years when claim levels in Canada and Canada's share of claims made to IGC countries was lowest were 1993 and 1994, a period when the Ward decision was drawing the greatest international attention. Likewise, from 1995 to 1998 when the IRB's pioneering work with respect to female refugee claimants was drawing considerable international attention, claim intake in Canada remained stable at around 25,000 claims per year.

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