Publications & Resources
Refugee law services reform
Stakeholder feedback (February to March, 2013)
Legal Aid Ontario (LAO) is sharing the feedback it received on the delivery of its refugee law services during its consultations in February and March of 2013.
Feedback response #1
- It would help if LAO clearly stated in plain English (minus all the buzzwords) what the new services are that are available to refugee claimants or those that have lost their claim at the Board. The above is gooblydigook. eg, what does "engagement of linguistic clinics" mean? or "innovative payment methods"?
- What services ARE available for clients of the private bar?
- Automation of intake makes the process LESS efficient.
- What is a "center [spelling, in Canada "centre"] of excellence.
- LAO seems to have abandoned its original purpose - to provide access to justice for those who can't afford it - in favour of saving money to fund huge LAO salaries.
- Current 5 hour max for new claimants is totally inadequate.
- Non-payment of opinion for JR is a denial of access to justice for those that cannot afford private retainers - totally unfair. Fund 4-hour opinion for JR, as in the past.
- Overall, "new" delivery model for refugees is a cop out.
Feedback response #2
As a community legal clinic in the west end of downtown Toronto since 1912, we respond to the needs of a wide range of people (many of them newcomers) through direct service, social action, and community development initiatives. We are pleased to see that the new Legal Aid plan includes front-end screening on merit of all refugee claims, including those from designated countries. We also appreciate that some coverage will be provided on a "pilot" basis for Refugee Appeal Division cases. We remain concerned, however, that there is very little representation overall available to claimants from designated countries. This is especially problematic given that the success rate of claims from a particular country largely determines whether it will be placed on the designated country list - by not providing coverage, Legal Aid risks both decreasing the chance that these claims will be successful and reinforcing the bias that claims from designated countries have no merit. Perhaps most problematic is that in most cases, there will be no Legal Aid coverage for Judicial Reviews or Stays of Deportation for claimants form these countries. Since such claimants do not have access to the Refugee Appeal divisions and are not entitled to an administrative stay of deportation, a Judicial Review coupled with an individual stay is the only chance claimants from designated countries have to argue that their refugee claim was decided unfairly. Finally, the new service plan includes making Legal Aid coverage available to paralegals for work that has previously been performed by lawyers. We believe that such an initiative needs to go hand in hand with improving the regulation of paralegals in order to ensure that refugee claimants do not fall victim to unscrupulous or poorly trained representatives. While we appreciate that many of the proposed changes are a result of increasing resource constraints, we urge Legal Aid to consider that with the passing of the new refugee rules/timelines in December overall numbers of claims appear to have dropped significantly. Given these low numbers, it may be possible to provide more comprehensive Legal Aid coverage for those claimants who do continue to arrive.
Feedback response #3
If I understand the plan correctly, private bar lawyers will receive a 5-hour certificate for preparation of the BOC but then the case may be streamed to the RLO, a clinic or a block fee lawyer. Since a BOC can rarely be prepared in 5 hours, this means that private bar lawyers will not be able to receive full payment for the necessary work done in preparing the BOC properly. This is unacceptable. It also appears that most refugee lawyers will not get certificates for representation of refugee claimants after the BOC is prepared. Since much of the success of a refugee claim sometimes results from repeated contacts with a client during which the client eventually reveals all of the information or the corroborative documentation, this will mean that good service will be sacrificed to "efficiency". (I could do a BOC in 3 hours but the result would leave the client open to questions of credibility.) I also question the use of block fees. At one of the consultations last year, Legal Aid Ontario said that larger firms are more efficient. But I pointed out that refugee lawyers have an excellent list serve and requests for information and documentation are usually responded to by colleagues within a very brief time, so there is no greater efficiency involved in using a larger firm.
Feedback response #4
Why split the refugee certificate in 2: 5 hours for BOC and 11 for the rest? This only made sense when it took 2 years to get a hearing. Now, if a client is approved for the BOC, she should be approved for the full 16 hours, since the hearing will be scheduled within 60 days. There is no chance a client will receive a WP within 60 days and be self-sufficient. Therefore, financial eligibility will not change. Asking lawyers to apply for the second part is a waste of time for lawyers and LAO.
Feedback response #5
Regarding the private bar, who are these "service providers" to whom claims will be streamed? In the Windsor area, immigration and refugee lawyers are almost all sole practitioners. We have a proportionally high level of refugee claimants due to our proximity to the US, and this new model looks like it is going to squeeze out a number of experienced refugee lawyers.
Feedback response #6
This model could act as a barrier to newly called lawyers or lawyers wishing to do legally aided refugee work, as the more experienced lawyers in the bar could conceivably present the more competitive service agreement contracts to legal aid.
Feedback response #7
Paralegals may be licenced but are nevertheless not trained in the law. The academic legal training of a lawyer is essential for assessing and preparing a refugee case from the outset, as choices/responses made at the outset of the claim (in the BOC) can have serious legal ramifications and consequences throughout the claim process. I would suggest that only licenced paralegals who are working under the direct supervision of a lawyer be permitted to represent refugee claimants, but that those working alone, having no legal training and no ready legal resource, should not be permitted to represent a claimant at any stage of the refugee claim process. 2. Every claimant should be allowed the freedom to choose their own counsel and 'streaming' of claimants by ethnic profile to specialty clinics would be inappropriate, particularly as many claimants are fearful of disclosing personal information within their own ethnic community.
Feedback response #8
I write on behalf of the Inter-Clinic Immigration Working Group (ICIWG) in response to LAO’s most recent refugee law services transformation proposals. We appreciate the extension of time given to prepare our feedback.
Our response focuses on the following two issues: i) Refugee law services by legal clinics, and ii) How we anticipate refugees may be impacted by certain of LAO’s proposed changes.
i) Refugee Law Services by Legal Clinics
As a starting point, we would like to make clear that, in our view, a fair and effective legal aid model for refugee law services must be anchored in a healthy certificate system. For many years, refugee claimants have relied on private bar lawyers who are experienced in refugee law to represent them as legal clinics do not have the capacity or expertise to serve all of the clients who seek our assistance. Knowing that refugee claimants have been well served by our colleagues in the private bar has allowed legal clinics to provide refugee law services as a last resort only to those who have already been turned down by legal aid and have no financial means to retain legal counsel. It has also permitted us to reserve our limited resources for other immigration legal services that are not covered by legal aid certificates (or where a certificate is not available due to merit or financial eligibility reasons) such as:
- Complex permanent residence applications for Convention Refugees
- Convention Refugee family reunification cases
- Family Class sponsorship applications
- Humanitarian and Compassionate grounds applications
- Pre-Removal Risk Assessments
- Complex Citizenship applications
- Judicial reviews and stay motions
In addition to these direct refugee and immigration law services, clinics advocate on behalf of refugee clients and communities to access health, social and educational services, and often engage in law reform and community organizing to address systemic issues.
Since LAO began its refugee law services consultations last year, it is our understanding that clinics have consistently and unanimously stated that we are operating at capacity. We simply cannot take on more refugee and immigration work without more funding. As you know, each individual legal clinic has its own board of directors, its own case selection criteria and other procedures.
Therefore, if LAO decides to stream refugee claimants to clinics – as the current proposal states – it does not mean we can or will serve them all. It goes without saying that it would be irresponsible for a clinic to agree to take on a refugee case without the capacity to do so as it would surely lead to inadequate representation. This would have severe negative consequences for the refugee clients.
Moving forward, it may be that individual clinics make the decision to expand refugee law services – either because they obtain funding from LAO or another source, or because they experience increased capacity as a result of a drop in demand for other immigration services. While ICIWG members believe that refugee law services are best delivered by the private bar on legal aid certificates, it may be that individual clinics agree to enter into specific arrangements with LAO to accept to do specific refugee law work. Only in the event that LAO reaches a specific agreement with a particular legal aid clinic should clients who are applying to LAO for a certificate be referred to that clinic when a certificate would otherwise be available. Any other referral policy is highly likely to result in clients falling through the cracks because there would be no assurance that a clinic which has not made a specific undertaking to LAO to take refugee files would have the capacity to take on the client being referred. We note that you have stated that “claims may be streamed elsewhere when linguistic clinics are unable to absorb the volume of claims”. We want it to be clear that unless a particular clinic has explicitly agreed to take on certain work, it should be understood that there is no ability to absorb additional work referred from LAO. The timeframes under the new legislation and RPD rules are short – there is no time for clients to be given referrals that will result in a dead end.
ii) How we Anticipate Refugees will be Impacted by LAO’s Proposed Changes
Judicial Reviews and RAD appeals
The current “Service Providers & Services” chart indicates the clinics will not be providing RAD or judicial review services. We are not clear as to why it is anticipated clinics will not be doing this work, but will necessarily be doing BOC preparation and hearing representation. Certainly many clinics have begun to see a significant increase in the number of refugees seeking assistance to judicially review negative claims because up front opinion certificates are no longer available. Some clinics have started to do more JR work as a result of this – and we anticipate will do some RAD work for the same reason. It is true, however, that most clinics do not have the capacity to take on this additional load and historically have rarely done JRs for files that they have not already carried. The point is that the general principle that clinics do the work that certificates are not available for holds true here as well – some clinics will do BOC and RPD hearing work and some will not. Some clinics will do RAD and JR work and some will not. As with our position on funding for RPD representation, we believe the solution lies in providing adequate and up-front funding to the private bar to do appeals and JRs for refused refugee claims.
Already, both the Law Society of Upper Canada and the Federal Court have expressed concern that changes to the certificate system have resulted in ghost-writing of JR applications by nonlawyers since most claimants cannot afford to pay lawyers to represent them, while clinics lack the capacity to do the work. The elimination of up-front funding for a lawyer to file the JR notice and provide an opinion/merit assessment has the potential consequence of creating an environment where refugees can be taken advantage of by certain unscrupulous consultants, on top of the very real danger that some of these refugees will be sent back to life threatening circumstances if the errors in the adjudication of their claims are left unchallenged. The Chief Justice stated publically on March 7, 2013 at a Canadian Bar Association Continuing Legal Education seminar that provinces with a more robust legal aid system for judicial reviews saw higher leave grant rates than provinces without more impoverished systems. We urge LAO to restore up front funding to private bar lawyers through certificates to file JR notices and conduct the merit assessment. We welcome the pilot project to provide funding for RAD representation but echo the concern that the lack of a certificate to pay a lawyer to file the appeal and to conduct a merit assessment may lead to a reduced number of meritorious appeals being granted funding because a claimant is unable to find someone to frame their grounds of appeal adequately.
Designated Countries of Origin
Like the Federal government, LAO has effectively proposed a two-tiered system for refugees, one for the refugees from so-called “safe” countries and another one for those from non-DCO countries.
Echoing the concerns already expressed by the Refugee Lawyers Association and others, we too strongly object to LAO’s proposal to stream claimants or assess merits based on the DCO list. This only serves to reinforce the discriminatory treatment against the affected refugees based on countries of origin. Claims should be assessed based on merit only and we reject the idea that there should be any presumption made about the merits of a claim solely on the basis of the country’s presence on the DCO list. As discussed above, we also agree that RAD and JRs should be funded for all claimants based on a minimum merit assessment that accords with principles of refugee law and natural justice, including the principle of right to counsel.
Hearing representation vs. BOC Preparation
The current service model states that services will be prioritized to ensure BOC funding, and that hearing representation may be reserved for complex meritorious cases.
We welcome the prioritization of representation for BOC preparation. However, we equally believe that priority should be placed on representation at the RPD hearing where it has been determined that the claim has legal merit. It is not only “complex” cases that require representation in a hearing. There is an endless list of reasons why representation in a hearing is vital. Any lawyer who has represented a claimant in a refugee hearing will acknowledge that a hearing that seems straightforward can quickly turn into an unexpected nightmare for any number of reasons. Counsel must be present in a hearing in order to avoid prejudice to the claimants arising out of unforeseen circumstances. As with the test for BOC preparation – LAO’s decision to fund representation at a hearing should be based on a minimum merit assessment of the claim.
We also express some concern regarding LAO’s increased reliance on its own merit assessment rather than funding private bar lawyers to provide an opinion as to merits. It may be more appropriate to fund private bar lawyers who prepared a BOC for a client to provide a short merit assessment or opinion in order to address specific issues such as the extent to which objective country conditions documents confirm a lack of adequate state protection. In the case where no certificate was available for the BOC and it was not prepared with proper legal assistance, it is even more important that a thorough merit assessment be available. We believe this thorough merit screening is better handled by a private bar lawyer acting on a certificate than LAO staff lawyers or non-lawyers trying to make this assessment over the telephone with limited access to the client.
While working in collaboration with community agencies, paralegals and consultants (where appropriate) is always important and innovation should be encouraged, these efforts cannot replace direct legal representation by a lawyer in an area like refugee law. LAO needs to advocate with the Federal government for more funding rather than looking for ways to download legal service to non-legal sectors. This is because refugee law is unique in the legal services provided by Legal Aid Ontario: it engages Canada’s international human rights obligations and the profound right to safety – a mistaken refusal can truly mean a return to face torture or death. If funding from the Federal government cannot be secured, in determining how to allocate its limited funding in its budget overall, Legal Aid Ontario must consider the driving principle behind the decision to fund or not to fund any particular services to be the chance that a client will be sent back to persecution or other mistreatment contrary to the client’s rights under the Charter. It is not acceptable that some clients who do face such a risk will not receive representation because of budgetary constraint.
To a refugee, the presence or absence of competent legal representation can make a difference between life and death. Any changes that may hinder right to counsel by refugees should take place only after an open and genuine consultation process. We thank you for the opportunity to provide our input and we urge LAO to reconsider its proposal in view of feedback it has received to date.