This piece complements my most recent blog entry about access to justice issues in the criminal law context, focusing instead on some issues in refugee law. The information discussed in this piece should not be relied upon as legal advice or information. Please refer to Citizenship and Immigration Canada, Legal Aid Ontario or the Immigration and Refugee Board for more information.
Refugee law is a highly complex and constantly evolving area of the law. Because of this, many access to justice (A2J) issues in this body of law remain hard to understand unless you are working in or going through the refugee determination system yourself.
I will outline here, in non-lawyer talk, three major A2J issues in refugee law: the amount of remuneration through legal aid certificates, ensuring quality representation and strict time limits under the new refugee determination system.
1) Remuneration for lawyers through legal aid certificates for refugee claims
Much like in criminal law, Legal Aid Ontario provides legal aid certificates in refugee law allowing private lawyers to represent refugee claimants and get paid by the state. Refugee claimants are subject to a merit and financial assessment and then a certain number of hours are paid to private lawyers for particular steps in the refugee determination process.
I have heard from many private lawyers practicing refugee law that the amount paid through legal aid certificates is insufficient considering the amount of time needed to provide quality representation. This is a hard claim to assess because it depends on what we are comparing to and it involves expectations which may vary across different lawyers and organisations.
Putting these difficulties aside, let’s take this claim as true. Insufficient remuneration for representing clients with legal aid certificate would drive a refugee lawyer in private practice to accept a high number legal aid certificates in order to make a profit. This would lead to less time being spent with each specific client, potentially diminishing the quality of representation. Access to justice in the refugee claim process means access to quality representation, and if remuneration is not sufficient, that quality is threatened.
2) The difficulty of ensuring quality of representation in refugee hearings
Refugee hearings are private and anybody attending a hearing must have the explicit permission of the refugee claimant. This means that problems with incompetent or low quality representation are less likely to surface as compared to other areas of law.
In addition, many claimants are vulnerable, come from places where authority is to be mistrusted, and do not speak English or French. This type of claimant is less likely to seek redress for incompetent representation, especially since a negative refugee claim most often entails a loss of immigration status.
The ability to seek and obtain redress when representation has not been up adequate is another important aspect of access to justice, and this right is particularly hard to ensure in the refugee claim context.
3) Strict time limits under the new refugee determination system
The Conservative government made sweeping changes to the refugee determination process in December 2012. A major component of these changes was the creation of time limits ensuring that a refugee hearing is held three months after making a claim, at the very latest. Under the old system, refugee hearings could be scheduled years after a claim was made.
Preparing for a refugee hearing in less than three months is a feat. Here’s why:
1. Gathering evidence often takes longer than three months
Evidence, such as police and medical reports, support letters and documents proving identity, is required from home countries to support a refugee claim. The time it takes to prepare, gather and send off, review and submit all relevant evidence surpasses three months. This means that refugee hearings are being held without important documentation needed to support the claim.
2. Three months is not enough time for many claimants to feel emotionally and psychologically prepared
Refugee claimants have experienced trauma, pain and suffering, and three months is not enough time for many claimants to find the sense of stability needed to testify clearly and coherently. Testimony lacking clarity and coherence may unjustly lead to the rejection of a claim.
Weeding out the strongest claims
I worry that such short time limits disproportionately weed out those with the strongest claims. Refugee claimants with the strongest claims often have long and complicated stories and travel trajectories requiring a lot of support evidence. It is these claimants that also require emotional and psychological support over a significant period of time in order to be able to testify successfully at their hearing.
While it is important that the refugee determination process is efficient, this efficiency must not sacrifice fairness and access to justice. When time limitations lead to a negative decision that would have been positive if more time was allowed, it is not fair or just.
A preferable approach would be to give members (the judge-like person at the Immigration and Refugee Board who makes a decision on refugee hearings) the discretion to postpone hearings to ensure that refugee claimant is sufficiently prepared, using his or her judgement in each particular case. This would give increase flexibility yet also prevent abuse because it is the member who would make the final decision.
As a complicated body of law which is easily influenced by political trends and far removed from the everyday lives of most Canadians, it is important to be aware of the important new and ongoing access to justice issues in refugee law. I have only discussed a few here, but I leave you with a few valuable resources which you can consult to keep up to date with these issues: