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)

3.7 Impact of easing of barriers to international travel

The increasing globalization of the international economy, which has been accompanied by rapid expansion of international travel and easing of international travel restrictions, has had a profound impact on the level of migration around the world. In earlier times, Canada was a distant and difficult to reach destination for any but the most determined migrants. Now, provided an individual can raise the money to purchase an airline ticket and the necessary travel documents to be allowed on a flight, Canada can be reached from virtually anywhere in the world in less than 24 hours.

For many years, the Canadian government actively recruited immigrants from Europe in an effort to populate Canada's vast open spaces. More recently, the Canadian government has begun to regulate migration more closely to ensure that the mix of new immigrants meets Canada's current labour market needs, which are totally different than they were in the first quarter of the 20th century.

The convergence of easy physical access to Canada from abroad and greater restriction on permanent migration to this country has resulted in a large increase in the number of prospective migrants, particularly from Asia, for whom an application for asylum in Canada may be the most viable way to obtain permanent resident status in this country.

3.8 Impact of anchor communities in Canada

The presence of friends or family members in a particular destination country is one of the factors that influences refugee claimants' choices with respect to where they make their refugee claims (Barsky, 1997). In a country such as Canada, which receives immigrants from many countries, the building of anchor communities from particular refugee producing counties may be a factor that is fueling the growth in the number of refugee claims being made here.

In each of the three years between 1998 and 2000, China, India, Pakistan, Philippines and Korea have been among the top 10 source countries for migrants to Canada. Sri Lanka and Taiwan have also been among the top 10 source countries in two of the past three years. Hong Kong ranked fifth in 1998, but had dropped to 17th by 2000. Among them, these eight Asian countries have accounted for almost 45% of all new immigrants to Canada in 2000 (CIC, 2001a: 12). China, Pakistan, Sri Lanka and India have also consistently been among the top 10 source countries for persons claiming refugee status in Canada, while these countries have not featured as prominently as sources of refugee claims made in other IGC countries (UNHCR, 2001).

A significant number of refugee claims referred to the CRDD are from individuals who indicate on their Personal Information Form that they have relatives in Canada [43]. This is particularly notable with respect to claims from India, Sri Lanka, Somalia and Iran. It is not surprising that many newly arrived refugee claimants have relatives already in Canada, particularly where those relatives had originally come to Canada as refugees. Family members who remained in the home country when the original refugee came to Canada may well have experienced similar persecution. The presence of a relative in Canada would quite naturally be a significant factor affecting the subsequent family member's choice of Canada as a country of asylum. This is consistent with Barsky's finding that presence of family members or friends in a country is an important factor in refugees' choice of that country as their destination.

3.9 Role of smugglers

Faced with significant restrictions on legal immigration, migrants are increasingly turning to migration agents and smugglers to assist them to gain access to the desired destination countries. Human smuggling has become a major business activity in recent years. It is estimated that revenues from human smuggling and trafficking [44] range from US$ 5 - US$ 7 billion annually (Morrison and Crosland, 2001: 3, footnote 1, citing Widgren, 1994). Estimates vary widely as to the percentage of asylum seekers and illegal migrants who are moved across international borders with the assistance of professional smugglers, but it is generally acknowledged that it is significant and is increasing. Ironically, the very measures that governments are taking to curtail illegal migration may be forcing asylum seekers and other migrants to avail themselves of the services of smugglers since it is becoming increasingly difficult to gain entry to developed, industrialized countries without such professional assistance.

Smugglers and migration agents facilitate illegal migration in a number of ways. Agents provide forged and fraudulent identity papers and travel documents to enable migrants to leave countries that have exit controls, to cross international borders, and to travel on commercial carriers. Smugglers also arrange transportation by clandestine routes, moving people in large groups on derelict ships engaged expressly for the purpose, as stowaways on fishing vessels and merchant ships, and in sealed freight containers. In order to conceal the routes used and to make deportation more difficult, the smugglers instruct their clients to destroy their travel documents and identity papers. When the documents are of high quality, the smugglers often recycle them for use by other migrants. As a result, many of the illegal migrants arriving in Canada and other developed countries have no travel papers or documents by which they can be identified.

The role of agents and smugglers in international migration is ambiguous. History is replete with examples of heroic people who used illegal means to smuggle persecuted people to safety. At one level, smugglers provide a vital service, even if they charge extortionate amounts for that service. However, there is also a darker side. Many of these agents and smugglers have links to organized crime syndicates. People are often smuggled under deplorable conditions, without any regard for their safety or well being. Migrants are forced to enter into highly exploitative arrangements, often indenturing themselves to the smugglers for years. If they fail to pay, they or other family members may be severely dealt with, sometimes even killed.

Many of the people who are smuggled have no fear of persecution. They are simply using the smugglers to circumvent normal immigration channels. If they are apprehended by the immigration authorities, they are advised to claim refugee status to forestall immediate deportation. The smugglers and migration agents abet this abuse of the asylum process by providing their clients with false stories and documents to support these stories. The criminal overtones of human smuggling and the fact that many of the migrants are abusing the refugee determination process has generated an intense backlash against refugee claimants in general and demands for imposition of more severe immigration restrictions.

The activities of smugglers and migration agents have led the government to introduce more severe measures to curb illegal migration, including measures that may lead to extended detention of a large number of illegal migrants. The authority currently exists to detain foreign nationals for purposes of establishing identity. This authority has been rarely used, but the new regulations enacted under the Immigration and Refugee Protection Act (IRPA), explicitly list factors to be considered by an adjudicator when deciding whether to detain persons whose identity has not been established. The listed factors include: failure to cooperate in establishing identity, provision or existence of contradictory information concerning identity, and destruction of identity documents, or use of false identity documents, in order to mislead CIC (Immigration and Refugee Protection Regulations, s. 251(c) and s.254(a)-(e)). Also under section 252(f) of these Regulations, foreign nationals whose arrival in Canada is part of a criminally organized smuggling or trafficking operation are regarded as a flight risk and are therefore more likely to be detained.

Increased use of detention in these cases, which is intended, in part, to counter smuggling and trafficking of humans, will lead to an increase in the number of detention reviews. Since legal aid is likely to be required for these reviews, this has direct cost implications for legal aid programs [45]. The added cost is likely to be directly proportional to the increase in the number of detention review hearings.

3.10 Problems in establishing identity of refugee claimants

The activities of human smugglers and traffickers have also contributed to problems in establishing the identity of refugee claimants. These activities affect legal aid costs in two major ways. First, the widespread disposal or concealment of travel documents by refugee claimants and abuse of the refugee determination process by illegal migrants has made the refugee determination process more complicated as considerable effort must be expended to establish claimants' identity by other means. The widespread use of forged and fraudulent travel documents and identity papers provided by migration agents and smugglers has compounded this problem. It has become increasingly difficult to establish the identity of refugee claimants with any degree of confidence, even in cases where claimants ostensibly have good identity documents.

The Auditor General for Canada has reported that more than 60% of refugee claimants in Canada do not have proper travel documents (e.g. airline ticket, visa, passport) when they present their claims (1997: 6). Claimants give a variety or reasons for not having these documents, which they would have needed to travel from overseas to Canada [46]. By the time these cases reach the CRDD, many of the claimants have obtained identity papers, including birth certificates, passports, work permits, housing permits and internal passports. However, the reliability of many of these documents is highly suspect.

Because of concerns about undocumented and improperly documented claimants, IRB members have been hesitant about accepting refugee claims through the expedited process. Status determination proceedings are delayed while claimants attempt to assemble reliable identity information. Documents that are provided are treated with suspicion. Hearings must sometimes be adjourned to allow for forensic examination of documents submitted. All of these factors contribute to increased legal aid costs as lawyers are required to do more work on cases than might otherwise be necessary.

Under the former Immigration Act (s.69.1(5)(ii)), Minister's representatives were allowed to present evidence in any refugee claim, but they could only question the claimant or other witnesses and make representations in cases where the Minister notified the CRDD that such matters involved exclusion issues under section E or F of Article 1 of the Refugee Convention, and/or if the CRDD otherwise considered it appropriate. Under IRPA (s.170(e)), the Refugee Protection Division of the IRB (which replaces the CRDD) is required to give the Minister a reasonable opportunity to present evidence, question witnesses and make representations in all cases.

This widening of the scope for Minister's interventions is a direct response to the increasing concern about undocumented and improperly documented claimants, and to concern about involvement of criminal elements in facilitating illegal immigration. Increased intervention by Minister's representatives in hearings before the RPD has significant cost implications for legal aid because such interventions make the hearings more adversarial and hearings in which the Minister intervenes typically require more time to complete.

3.11 Bilateral and multilateral agreements and "safe third country" provisions

3.11.1 The Schengen Agreement and the Dublin Convention

Two major international agreements affecting persons seeking asylum in Western Europe, the Dublin Convention and the Schengen Agreement came into force in the 1990s. As has already been noted in section 2.4 above, there is no discernable correlation between these and other developments in Europe and the number of refugee claims received in Canada from year to year. However, the impact that these agreements have had within Europe has a bearing on the present inquiry into legal aid cost drivers from a completely different perspective.

The Dublin Convention, in particular, assigns responsibility for determining individual refugee claims to the country through which the claimant first entered the geographic zone comprised by States party to the Dublin Convention. Canada and the United States have recently confirmed their intention to implement a similar bilateral agreement in the North American context. The Canada-US agreement could have a profound impact on the number of refugee claims that have to be determined in Canada. This, in turn, could have a significant impact on legal aid costs.

The Schengen Agreement provides for free movement of people across national frontiers within the Europe. It was first entered by France, Germany, the Netherlands, Belgium and Luxembourg in 1985, and was expanded to include 13 countries in 1997. It was incorporated into European Union (EU) law by the Treaty of Amsterdam in 1999 (Europa, 2001). This agreement makes it relatively easy for asylum seekers to move anywhere within the European Union once they have gained access to any member country. The elimination of barriers to free movement within the European Union led a majority of member countries in 1997 to enter into the Dublin Convention [47]. This Convention establishes criteria and procedures for determining which State within the Union has responsibility for examining refugee claims lodged within the Union.

Underlying the Dublin Convention is the basic principle that persons claiming asylum within the European Union should make their claim at the first opportunity. Conversely, the Dublin Convention is based on the premise that the first country through which a claimant enters the European Union should assume responsibility for determining the claim. Exceptions are made for claimants who have a visa for admission to, or who have family members in, another country within the EU. An exception is also made for claimants who have resided for more than six months in a country other than the country through which they entered the EU. This agreement is intended to make it more difficult for asylum seekers to make sequential claims for refugee status in more than one country within the European Union.

According to a study on implementation of the Dublin Convention funded by the European Commission and carried out by the Danish Refugee Council (DRC) (Danish Refugee Council, 2001), the Member States generally agree that the "Dublin system" does not function as expected. Among other issues, the DRC study noted that the procedures are lengthy and the criteria are unclear and difficult to implement. Moreover, the results are not significant since only a few asylum seekers are ultimately transferred. At the same time, some of the concerns expressed by refugee advocates and NGOs across Europe have materialized. Claimants are subject to a longer (pre-procedural) period of uncertainty. Family members are separated. Member countries within the European Union have not yet harmonized their material law and practice with regard to how they deal with refugee claims. As a result, claimants are incited to destroy identity and travel documents and to choose illegality and go underground to avoid transfer to a country where their claim may be dealt with less favourably.

The impact of these two agreements on the number of asylum applications received in Europe is unclear. There was a sharp decline in claims made in Europe in 1993 and 1994. This predated the Dublin Convention and expansion of the Schengen Area beyond the original five countries. The reduction in claims made in these years was related primarily to developments in Germany, which at the time was receiving more than half of all refugee claims lodged in Western Europe. In the wake of the sharp decline in the number of claims made in Germany, there was some fluctuation of intake in other European countries. Belgium and the Netherlands, both members of the Schengen Area with Germany, experienced an increase in claims in the first year after Germany began restricting access. But the additional claims they received amounted to only one-fifth of the reduction in Germany. France, another Schengen country, had no significant increase. The following year, in the face of an even bigger reduction in Germany, the Netherlands experienced an increase amounting to less than one-tenth of the German decline, while the other Schengen countries experienced a decline.

Following expansion of the Schengen Area, and introduction of the Dublin Convention in 1997, the number of claims lodged in European countries increased in both 1998 and 1999. Claim intake in Europe started to decline again after 1999; but it is unclear whether this has anything to do with the Dublin Convention or the Schengen Agreement, or whether it is a function of restrictions that have been imposed by individual member countries.

3.11.2 "Safe third country" provisions

When the Immigration Act was amended in 1988, a provision was included authorizing the Governor-in-Council to prescribe "for the purpose of sharing responsibility for the examination of persons who claim to be Convention refugees, countries that comply with Article 33 of the [Refugee] Convention", that is countries that will not return a refugee claimant to a country in which that person has a well founded fear of persecution based on any of the five Convention grounds (Immigration Act, s.114(1)(s)). A similar provision is included in section 96 of the Immigration and Refugee Protection Act. Countries to which asylum seekers might be returned pursuant to such a provision are generally referred to as "safe third countries".

The underlying logic of this provision is that genuine refugees should reasonably be expected to claim asylum in the first safe country in which they arrive after leaving their home country. It is this same logic that persuaded European countries to adopt the Dublin Convention, which effectively makes every signatory country a safe third country vis-à-vis all other signatory countries.

Such a provision has obvious attraction for Canada as a way to limit the number of asylum claims that have to be determined in Canada. The vast majority of persons claiming asylum in Canada have to transit through the United States or though countries in Western Europe, all of which are signatories to the Refugee Convention and all of which have well developed asylum determination procedures. Many people who claim asylum in Canada have spent significant time in one or more of these transit countries before embarking to come to Canada.

The federal government has yet to prescribe any countries in Western Europe safe third countries. This is in part because of strong opposition to such a move by refugee advocates in Canada. Also, before prescribing any country pursuant to this authority, the Governor-in-Council is required to make an assessment regarding, among other things, the third country's policies and practices with respect to Convention refugee claims and the country's record with respect to human rights. This could prove problematic since there are material differences in the way in which Canada and countries in Western Europe interpret the definition of a Convention refugee. Furthermore, passage of such a regulation would have the effect of shifting the burden of determining asylum claims from Canada to other countries. There is little scope for reciprocity in sharing the determination of claims between Canada and countries in Europe since few, if any, asylum seekers travel to Europe via Canada.

In the circumstances, it is highly unlikely that the authority to designate safe third countries will be used, in relation to countries other than the United States. Therefore, designation of countries in Western Europe as safe third countries is unlikely to be a factor with regard to legal aid costs. However, Canada has recently negotiated bilateral "safe third country" agreement with the United States. The implications of this agreement are discussed in the section immediately following.

3.11.3 Canada - US bilateral agreement

Over the years there has been a strong interest in utilizing this regulation making authority to prescribe the United States as a "safe third country". Since most of the refugee claimants who present claims at Canadian points of entry arrive in this country from the United States, such a provision could have an enormous impact on the number of claims that have to be determined in Canada. A significant reduction in the number of claims being determined in Canada would significantly reduce the cost of providing legal aid for refugee claimants.

For a "safe third country" provision to work, it must be implemented in cooperation with the country to which claimants would be returned. Since the number of claimants who enter Canada from the US is considerably higher than the number who enter the US through Canada, the advantages to be gained from any reciprocal "safe third country" agreement are likely to be greater for Canada than for the United States. As a result, until recently the Americans have shown little interest in implementing such an arrangement. However, following the terrorist attack in the US on September 11, 2001, the situation has changed significantly. The Canadian and American governments have recently announced an agreement that will allow immigration authorities in either country to return to the other country persons who make a refugee claim at the land border. Consultations with stakeholders have been completed and the only step remaining before implementation of the final agreement is review and approval by the governments of both countries. (CIC, 2002h).

If this agreement has the predicted effect of reducing the number of refugee claims from individuals who enter Canada from the United States, it could significantly reduce legal aid costs. However, it is still uncertain how the agreement is going to work out in practice. Therefore, it is difficult to draw any conclusions as to the impact this development might have on legal aid costs.

Since the agreement applies only with regard to refugee claims made at the land border, one can anticipate that claimants who want to have their claims determined in Canada will try to avoid making their claim at a point of entry. This is likely to result in an increase in the number of inland claims. If this turns out to be the case, the anticipated reduction in the overall number of claims to be determined in Canada may not materialize. Critics of the proposed agreement have expressed concern that claimants will try to enter Canada clandestinely (possibly under extremely dangerous conditions) so they can conceal evidence of their sojourn in the United States. This is consistent with experience in Europe where claimants are reportedly resorting to destruction of identity papers and other illegal means to avoid transfer to another country pursuant to provisions of the Dublin Convention (Danish Refugee Council, 2001: 1). Such developments could further complicate the refugee determination process since they would raise increased concerns about the reliability of documents presented by claimants and increased uncertainty about the circumstances under which they traveled to Canada. If the experience with the Dublin Convention in Europe holds true, it is likely that the Canada-US agreement will also raise new pre-determination procedural issues regarding which country has responsibility to determine individual claims. All of these possible developments could result in an increase in legal aid costs.

It can be expected, moreover, that Canadian refugee advocates will challenge the return of asylum seekers to any country that is thought to have harsher asylum determination procedures than Canada. At present, the United States makes much more extended use of long-term detention of asylum seekers than is the case in Canada. Without having been the subject of any criminal charge or conviction, many asylum seekers in the US are detained with convicted criminals in regular jails. This practice arguably contravenes sections Articles 9 and 10 of the International Covenant on Civil and Political Rights. Operation of a Canadian law in a way that would result in routine detention in the United States of an asylum seeker turned back at the Canadian border might, arguably, also infringe rights protected under sections 7 and 9 of the Charter and Section 2(a) of the Canadian Bill of Rights. If there is a serious possibility that asylum seekers who are returned to the United States under the Safe Third Country Agreement may be detained in this way, one can anticipate lengthy and costly legal challenges. This observation is not intended as a comment on the merits of such a challenge. However, one needs to be mindful of the fact that anticipated legal challenges of this nature could represent a significant additional cost for legal aid plans until the matter is authoritatively settled by the courts.

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