Immigration and Refugee Legal Aid Cost Drivers

1. Introduction

1. Introduction

This study has been undertaken to identify the factors that drive immigration and refugee legal aid expenditures and to outline how these factors influence the cost to governments to provide these services. Every province is facing pressing demand for services in virtually every area where the legal system has significant impact on the lives of Canadians. The per case cost of providing legal aid for immigration and refugee matters has risen even faster than it has in other sectors [3]. Understanding what is driving this cost increase with respect to immigration and refugee matters is essential to the long-term stability of legal aid programs and the development of sound legal aid policy.

Working assumption

Ontario, Quebec and British Columbia among them account for over 90% of all immigration and refugee legal aid expenditures in Canada. Over the past two fiscal years, roughly 92% of Legal Aid Ontario (LAO) expenditures on immigration and refugee matters related to proceedings before the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board (IRB) (Rod Strain, memo to Mary Marrone, June 11, 2002) [4]. It is estimated that in fiscal year 2001-02 roughly 90% of immigration and refugee legal aid expenditures in British Columbia related to refugee determination proceedings, including judicial review of CRDD decisions (Legal Services Society, 2001a) [5]. In Quebec, between 90% and 92% of immigration and refugee cases funded by the Commission des services juridiques over the past ten years have related to refugee claims (Claude Hargreaves, interview with Pierre Duquette, June 14, 2002). In Quebec, between 90% and 92% of immigration and refugee cases funded by the Commission des services juridiques over the past ten years have related to refugee claims (Claude Hargreaves, interview with Pierre Duquette, June 12, 2002). In all three provinces, the most significant single cost relates to provision of representation for refugee claimants at status determination hearings before CRDD. A substantial portion of the remaining expenditures are directed to providing legal aid for judicial review of CRDD decisions in the Federal Court, and for post-determination risk assessments (PDRCC) and humanitarian and compassionate reviews (H&C) on behalf of failed refugee claimants. Approximately 2-6% of all immigration and refugee legal aid spending is directed to providing legal representation for detention reviews and immigration inquiries before the Adjudication Division of the IRB. Many of these cases also relate to refugee claimants. Immigration Appeal Division (IAD) proceedings [6] account for less than 1% of immigration and refugee legal aid expenditures in Ontario (Roderick Strain, memo to Mary Marrone, June 11, 2002) and the same appears to be the case in British Columbia and Quebec. The balance is allocated to other judicial review proceedings in the Federal Court and to various submissions to the Minister [7]. Many of these proceedings also involve failed refugee claimants. Thus, cost drivers relating to legal aid for immigrants who are not refugee claimants are of marginal interest for purposes of this inquiry.

Approach and structure of the report

Research for this study is focused primarily on cost drivers related to provision of legal aid to refugee claimants and failed refugee claimants. In concentrating on refugee claimants, however, the study does not ignore the significance of immigration considerations as a cost driver for legal aid. Factors that cause would-be immigrants to use the refugee determination process as an alternative channel for gaining admission to Canada are still relevant as cost drivers for legal aid. Substantial legal aid expenditures are committed to dealing with refugee claims of this sort.

Chapter 1 of this report contains a summary overview of legal aid cost drivers as identified in a review of the available literature. Apart from looking at the obvious factors, that is costs being driven by increasing demand for legal aid services and by the increasing complexity of legal proceedings, Chapter 1 includes a brief review of literature relating to how the manner in which legal aid is delivered affects program costs. The problems that arise as a result of specific economic incentives that are at play in the legal aid context are also examined. There are two aspects to this. First, where someone else is paying, clients may be less vigilant about costs incurred on their behalf. Second, when clients have little knowledge about what services they require and legal aid authorities have no ready way to ensure the services provided are necessary, there is a risk that lawyers may provide and bill for services beyond the level intended by the legal aid authority.

Chapter 1 also includes a brief examination of the impact of legal aid tariff structures as a cost driver, that is the extent to which the tariff affects how lawyers handle cases and the costs they incur in representing legal aid clients. The significance of external factors, such as the prevailing market rates for legal services and the availability of alternatives to legal aid as cost drivers for legal aid programs is also discussed.

Factors at the international level that are driving legal aid costs by contributing to the continuing increase in the number of asylum claims made in Canada are examined in Chapter 2. These factors in the international environment may have a bearing on choice of Canada as a preferred country of destination, both by persons fleeing persecution and by those who use the refugee determination process simply as a way to gain access to Canada. While these international factors are not significant cost drivers with respect to legal aid programs in general, they potentially have a significant impact on the level of immigration to Canada and the number of refugee claims made in this country, which directly affects immigration and refugee legal aid costs.

Chapter 3 focuses on domestic factors that may be considered cost drivers unique to immigration and refugee legal aid. This includes a review of how Canadian immigration and asylum policies influence the choices people make regarding whether to come to Canada through the asylum route or through normal immigration channels. This chapter also examine how domestic immigration enforcement policies drive legal aid costs. For example, enforcement activities that result in more people being detained or deported have a direct impact on the number of legal aid applications for representation in relation to detention reviews.

Chapter 4 focuses on specific challenges relating to provision of legal aid for immigrants and refuge claimants. First, the cost impact of unique features of immigration and refugee cases, including attributes of the specific clientele for whom legal aid is being provided is examined. For example, the need to deal with clients through interpreters is a direct cost that does not apply to the same extent in other cases where legal aid is provided. It may also be an indirect cost driver since counsel are required to spend more time with clients to obtain necessary information and instructions than they do when no interpreter is required. Most immigrants and refugee claimants are unfamiliar with the Canadian legal system. Also, many refugee claimants are traumatized as a result of experiences they endured in their country of origin. The impact that these factors have on the cost of providing effective legal representation is assessed.

Chapter 5 focuses on structural features of legal processes relating to immigrants and refugee claimants, as they affect legal aid costs. The various legal processes for which legal aid might be provided are reviewed and the impact that established procedures and operational practice may have on legal aid costs is assessed.

Chapter 6 provides an assessment of the anticipated impact of legislative changes, specifically the new Immigration and Refugee Protection Act and recent amendments to national security legislation, on the cost of providing legal aid for immigrants and refugee claimants. The impact major court decisions have had on demand for legal aid and on the cost of providing effective representation is also considered.

Chapter 7 is devoted to analysis of the cost consequences of delay at various stages in legal processes involving immigrants and refugees claimants. This chapter includes an examination of the hypothesis that delay in reaching final decisions on refugee claims and delay in effecting removal of failed refugee claimants draws would-be migrants who do not qualify for admission to Canada to use the refugee determination process as an alternative channel of access. The cost impact of delay at various stages in legal proceedings involving immigrants and refugee claimants is also discussed. For example, costs increase when counsel, in preparation for resumption of an adjourned hearing, is required to review work already completed.

Within the limited scope of this project, it is impossible to undertake a primary econometric analysis of any of the individual cost drivers identified. Rather, the analysis and commentary on specific cost drivers relating to immigration and refugee legal aid is based on a review of readily accessible literature and information pertaining to each of the factors identified. The analysis draws heavily on the author's personal experience in the area [8]. Statistical information on program costs and on migration flows is provided where available.