Immigration and Refugee Legal Aid Cost Drivers

8. Impact of delays in process

8. Impact of delays in process

8.1 Delay as a "load" factor increasing work to be done

Delay in legal processes has potential to drive legal aid costs in two ways. First, it tends to increase the amount of work that has to be done with respect to individual cases. Second, and specific to the immigration and refugee context, delay in making final determination on asylum applications, and delay in removing failed claimants, encourages abuse of the asylum determination process as a means to bypass regular immigration channels.

Procedural delays, for example prolonged adjournments and repeated postponements, increase the amount of work that lawyers are required to do. When hearings are adjourned for an extended period, lawyers who represent legal aid clients involved in these cases have to spend time reviewing the case in preparation for resumed sittings. Additional time is also required to maintain contact with clients and witnesses and to deal with client problems that may arise while the case is adjourned. Repeated postponements and the associated need to establish new hearing dates consume lawyers' time but contribute nothing to the resolution of the substantive matters in relation to which the lawyers have been retained.

This sort of delay could be a legal aid cost driver if lawyers were able to bill for all of the time spent on individual cases. But in the context of immigration and refugee legal aid, the cost impact is muted because all tariffs limit the amount that can be charged for pre-hearing work. The allotted preparation time is not adequate for required case preparation in many cases (Social Policy and Research Council, 2002: 9). As a result, lawyers are rarely able to bill for additional work incurred as result of procedural delays. However, in jurisdictions where lawyers can bill for the full time spent in hearings, additional legal aid costs are incurred when hearings are not concluded in a reasonable time. Where tariffs allow an additional charge for adjourned hearings, delays that result in adjournments also result in additional legal aid costs.

8.2 Delay in determination of cases and removal of failed claimants

The impact that delay in reaching decisions and in removing failed claimants has on the intake of asylum claims in Canada is a separate issue and possibly more significant as a cost driver with respect to immigration and refugee legal aid. No detailed calculations of how delay might influence intake has been carried out, but over the years, build up of case backlogs, which are one indicator of increased processing times, have tended to be followed by increases in claim intake.

The most obvious example of this phenomenon was in the period between 1985 and 1988, immediately prior to the establishment of the IRB. In 1985 the Supreme Court of Canada held that an oral hearing is required for refugee claims (Singh v. Minister of Employment and Immigration). Immediately following that decision, the number of refugee claims made in Canada started to rise sharply. The former Immigration Appeal Board (IAB), which at the time had only 18 members and sat in three-member panels, was quickly overwhelmed by the increased intake. Additional members were appointed, but they were unable to keep pace with the rising intake. In the latter half of 1986, when it became obvious that the system would be unable to cope with the mounting backlog, the floodgates opened.

The average intake of refugee claims from 1981 to mid-1986 is estimated to have been around 769 per month or 9,228 per year. For the period from mid-1986 when the Administrative Review Program was established to deal with the accumulating backlog of refugee claims, until the end of 1988, when responsibility for determination of refugee claims was transferred to the IRB, the average intake was estimated to have been 3,425 claims per month or 41,100 per year (CIC, 1994). However, this average does not tell the full story. During the 1986 to1988 period, the intake was rising steadily, with an estimated 50,000 claims being received in 1988 alone. Over 23% of the claims received during the 1986 to 1988 period were from Portugal and from Trinidad - Tobago. The influx of a large number of claimants from these non-refugee-producing countries is a clear indication that the asylum system was being used by many claimants as a back door for immigration to Canada. The sudden interest in Canada as a destination appears to have been directly related to the likelihood that claimants would be able to stay in Canada for at least a few years before their case would be heard. As the crisis mounted, there was also widespread anticipation that the government would declare an amnesty for persons already in the country, so prospective immigrants used this avenue as a way to "get in under the wire" without passing through regular immigration channels.

The government of the day responded by replacing the IAB with the IRB. More than 220 members were appointed to the CRDD when it was first established. Some of these were assigned to a special "backlog clearance" program under which claimants already in the country would be allowed to stay if they could establish a credible basis for their refugee claim. The others were assigned to the regular hearing process to deal with new refugee claims. Intake of claims between 1989 and 1992 fluctuated from just over 20,000 in 1989 to 37,729 in 1992. In 1993, when CRDD output caught up with the intake, the number of claims received dropped to 21,192.

The pattern noted in the late 1980s has been repeated over the past two years. A sudden increase in intake, up from 25,396 in 1998 to over 44,000 in 2001, has triggered the build-up of a pending inventory of over 50,000 claims. This has forced the IRB to revise estimates of how long it is expected to take, on average, to decide refugee claims after they are referred to the RPD. In its 1999 Report on Plans and Priorities (RPP), the Board projected that processing time would be reduced to eight months in the 1999-2000 fiscal year (IRB, 1999b) [115]. In its most recent RPP, filed in March of 2002, the Board estimates that average processing time in fiscal year 2002-03 will be 16 to 18 months (IRB, 2002b: 11).

Delays between the referral of claims and RPD decisions are only part of the picture. To that must be added all of the post-determination delays. Failed claimants have 45 days after receipt of notice of the RPD decision to perfect an application for leave for judicial review. The Federal Court, on average, takes four months to make a decision on leave applications and an additional 12 months before delivering a decision in cases where leave for judicial review is granted. The time required for pre-removal risk assessment and to complete the arrangements that must be made before the person concerned can be returned to his or her country of origin cause further delay in the removal of failed refugee claimants.

The real issue for people who might abuse the asylum system to gain access to Canada is how long they expect to be able to stay and work in Canada before they are removed. If they are likely to be removed quickly, the cost of making the trip - including payments to migration agents for false travel documents and assorted other expenses over and above the normal travel cost - makes the exercise uneconomic. But if they have a good prospect of staying in Canada for many years, even if their asylum claim is rejected, claiming asylum becomes much more attractive. The longer the delay in removal of failed refugee claimants, the more attractive the asylum process becomes as an alternative route for immigration. Knowledge that claiming refugee status provides an excellent prospect of being able to remain in Canada for a number of years, even if the claim is rejected, may draw prospective migrants to make refugee claims here, which in turn, drives legal aid costs.

This phenomenon appears to be a factor behind a significant number of the asylum claims received in IGC countries. It has caused many of these countries to impose drastic measures to discourage asylum seekers. In a very controversial move, Australia, for example, has begun detaining all refugee claimants in remote facilities to frustrate their efforts to seek work in that country while awaiting their status determination hearings. Since 1996, the United States has also been detaining a significant number of refugee claimants. Many countries in Europe have been experimenting with expedited proceedings for dealing with manifestly unfounded claims and with prescription of presumed "safe countries of origin" in an effort to facilitate speedy removal of failed refugee claimants. These developments have not gone unnoticed in Canada and serious consideration has been given to imposing similar measures here in order to curtail the perceived abuse of the asylum process.

All of this is a two-edged sword with respect to legal aid costs. On the one hand, delay in removal appears to be one of the factors driving intake of refugee claims, and therefore driving demand for legal aid services. On the other hand, efforts to discourage demand could drive legal aid costs in other ways. For example, increasing the number of detained cases would result in more detention reviews, for which legal aid would be required. And any move to introduce expedited removal procedures of the sort being tried in some European countries would likely be met by a concerted Charter challenge, for which legal aid funding would almost certainly be sought. A more attractive option from a legal aid perspective would be to reduce delays by streamlining current decision-making processes without introducing new measures that would be likely to generate demand for additional legal aid coverage.

[115] These surges in claim intake have also coincided with the introduction of major amendments to the Immigration Act, such as Bill C-55 in 1988, Bill C-86 in 1992, and Bill C-31 in 2000, which was subsequently re-introduced as Bill C-11 and enacted as the Immigration and Refugee Protection Act. The cause-effect relationship here is difficult to sort out. Many of these legislative changes were introduced in response to perceived problems in the system, including slow processing time and the build-up of a large backlog of refugee claims. However, the announcement of pending legislative changes may also have acted as a catalyst for even more claims, as claimants attempted to lodge their claims before the new legislation came into force.