Meeting the
Challenges of
Delivering Refugee
Legal Aid Services
Policy & Strategic Research Department
Policy, Research & External Relations
Meeting the Challenges of Delivering Refugee Legal Aid Services
INTRODUCTION
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Importance of Legal Aid Services for
Refugees
• It is important that LAO provide legal aid services to refugee
claimants.
• Many refugees will not have the funds or necessary supports to pay
for representation before the IRB, nor will they be able to advance
their case without legal assistance.
• Legal aid assistance can make the difference in ensuring that the
rights of refugees are protected.
• The 1996 Ontario Legal Aid Review, A Blueprint for Publicly
Funded Legal Services, stated that “refugee claimants risk return to
a country where they could face imprisonment, torture or death
because of who they are or what they believe.”
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What’s Driving Change in Refugee Legal Aid?
• Changes in refugee legal needs and service
delivery are being driven by:
– New legislation
– LAO budget situation/lack of new resources
– LAO reform and modernization
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Client Needs and Refugee Legal Aid
• Current system of providing refugee legal aid
largely unchanged for almost twenty years
• Current system not a good match for changing legal
needs due to new legislation
• Current system does not meet other
pressures/opportunities
• LAO believes client needs may be better served by
developing new service model
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NEW FEDERAL LEGISLATION
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New Legislation
• The Protecting Canada’s Immigration System Act (PCISA) is
expected to come into force by mid-December.
• The Act changes refugee legal needs through substantial
changes to the refugee determination system:
Faster time lines for processing cases
Basis of Claim (BOC) initiates the process
Introduction of new appeal division (RAD)
Designation of countries that produce few refugees or have low
success rates, and procedural differences for claimants from these
countries
– Faster removals for unsuccessful claimants
– No pre-removal risk assessments (PRRAs) for one year after
rejection of RPD claim
–
–
–
–
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Changes in Refugee Determination System
Current Legislation
New Legislation
28 days to submit Personal Information
Form (PIF)
15 days to file Basis of Claim (BOC) when
claim for refugee status made at port of
entry; inland claims file BOC when making
claim
No authority to designate countries
Naming of designated countries of origin
(DCOs), based on high rate of rejection by
IRB of claims from those countries and
high number of abandoned claims
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Changes in Refugee Determination System
Current Legislation
New Legislation
RPD hearing conducted by Governor in
Council appointees with no set standards
for time
Refugee Protection Division (RPD) hearing
conducted by public servant decisionmakers within 30 days for inland DCO
claims and 45 days for port of entry DCO
claims; all other claims to be heard within
60 days
No appeal division of IRB
Appeal to RAD available all claimants
except from DCOs, designated irregular
arrivals, claims found by the RPD to be
manifestly unfounded/without credible
basis
Cases referred to the IRB before coming
into force of new legislation have no
access to RAD
Appeal to be filed and perfected within 15
working days
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Changes in Refugee Determination System
Current Legislation
New Legislation
Claimants may seek leave in Federal Court Claimants with no access to RAD may
for judicial review of negative RPD
seek leave in Federal Court for judicial
decisions
review of negative RPD decisions
Claimants whose appeals to RAD are
rejected may seek leave in Federal Court
for judicial review of RAD decision
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Changes in Refugee Determination System
Current Legislation
New Legislation
Availability of pre-removal risk assessment
(PRRA) prior to removal
Cannot file a subsequent PRRA for one year
after receiving negative PRRA decision
Recent restrictions placed on access to
Faster removals after receipt of negative
humanitarian and compassionate application
decision
for one year after rejection or abandonment of
RPD claim, except where best interests of
children are involved or there is life-threatening
medical condition for which there is inadequate
care in country of origin
No access to humanitarian and compassionate
(H&C) application for one year after a negative
RPD decision (except where would affect best
interests of children or where there is risk to
life caused by medical condition where there is
inadequate care in country of origin
Cannot bring simultaneous H&C and RPD
applications
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OTHER FACTORS DRIVING REFORM
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Costs and Resources
•
LAO’s financial resources are limited and refugee costs are growing
•
LAO has a fixed annual budget yet in past five years:
– # of certificates for refugee matters has increased 20%, while criminal certificates have
increased by 2% and family certificates have been reduced by 16%
– Total expenditures on refugee legal aid has increased 45% (only small fraction
attributed to tariff.)
•
More money for refugee services mean reductions in criminal, family or
clinic services
•
LAO has a structural deficit and potentially significant unfunded liabilities
– Law Foundation of Ontario (LFO) revenues decreased by $50M or 90+% in 2009/10
– Potential shortfall in funding recent tariff increases beginning in 2013/14
•
LAO can’t assume increased revenues from governments or LFO
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Legal Aid Modernization
•
LAO has developed a continuum of services that matches service to client
needs at each stage of the proceeding
•
Continuum expands access to justice by committing LAO to target legal
resources thoughtfully and strategically
•
The continuum:
– Provides the most cost-effective service at each stage of a proceeding
– Departs from historic assumption that all clients should receive full certificate,
regardless of the complexity of the case
– Targets resources where they can assist clients most effectively
– Expands range of service options to meet client needs
– Certificates are reserved for more complex cases and where full representation is likely
to benefit clients the most
•
LAO now applies continuum in criminal and family law through summary
legal advice, duty counsel, staff offices, certificates, etc.
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Continuum of Services
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Other Provincial Legal Aid Plans
British Columbia
Primary reliance on private bar, with some duty counsel
services
Alberta
Primary reliance on specialized staff offices, with private bar
lawyers filling in when staff counsel not available
Manitoba
Primary reliance on private bar
Quebec
Primary reliance on private bar, with payment covered by block
fees, and some staff lawyers in Montreal
Newfoundland
Staff lawyer handles refugee cases
Please consult Appendix A in Discussion Paper for more detail on other provincial legal
aid plans.
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LAO’S PROVISIONAL SERVICE MODEL
FOR REFUGEE LEGAL AID SERVICES
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LAO’s Provisional Model – Guiding Principles
•
LAO has developed provisional model for delivering refugee legal aid
services.
•
LAO believes model is better-suited to meeting current challenges while
ensuring that refugee claimants continue to receive high-quality services.
•
Model is consistent with continuum and current delivery of refugee
services in many significant respects:
– Private bar/certificates remain but are not near-exclusive means of delivering services.
– Certificates supplemented by LAO staff lawyers, duty counsel, and paralegals where
appropriate.
– Approach is consistent with LAO services in criminal and family law.
•
Organizing feature is match between level/type of service and client legal
need.
•
LAO is presenting model to generate discussion and constructive
commentary.
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LAO’s Provisional Model – Intake
• New legislation has expedited timelines, especially at the
front end of the process, which place a premium on early
merit screening and triage of the client’s needs.
• Proposed intake process
– LAO proposes staff screening of client needs at intake stage in
order to direct client to the appropriate service. Goal is to ensure
clients are moved into appropriate service stream without delay.
• Screening based on country of origin
– LAO proposes that staff who conduct screening triage cases
primarily according to country of origin.
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Provisional Service Model – Country of Origin
Countries with greater than 90% acceptance rate
• Claimants from these countries are likely to succeed. As a result,
these claimants arguably require less legal advocacy to advance
their cases. Resources for full legal representation might be more
effective elsewhere.
• Legal needs for majority of claimants from these countries might be
served by:
–
–
–
–
Website referral
Summary legal advice
Legal assistance to prepare BOC
Duty counsel services prior to RPD hearing
• Full representation at hearing could be reserved for clients with
special needs or unaccompanied minors.
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Provisional Service Model – Country of Origin
Questions for discussion
• How should LAO prioritize claimants from countries
with a greater than 90% success rate?
• Is representation always necessary in these cases or
should resources be targeted to other legal needs?
• Are there other legal services that would be needed by
clients in this group?
• Are there alternative means of meeting the legal needs of
this client group?
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Provisional Service Model – Country of Origin
Countries with 25-90% acceptance rate
•
Success at RPD hearing for clients from these countries may depend on
legal representation. These hearings are more likely to involve contested
evidence and be adversarial. As a result, these claimants’ needs are a high
priority for full representation and comprehensive legal aid services.
•
Legal needs for claimants from these countries might be served by:
–
–
–
–
•
Website referral
Summary legal advice
Legal assistance to prepare BOC
Full representation at RPD hearing
In certain situations, legal services for claimants from these countries offer
potential for economies of scale by savings on country research, country
specialization or new fee arrangements such as block fees and service
contracts.
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Provisional Service Model – Country of Origin
Questions for discussion
•
How should LAO prioritize claimants from countries with a 25%-90%
acceptance rate?
•
Is representation necessary in these cases or should these resources be
targeted to other legal needs?
•
Are there other legal services that would be needed by clients in this
group?
•
Are there alternative means of meeting the legal needs of this client
group?
•
Are there opportunities for economies of scale, specialization, and/or
alternative fee arrangements to improve the quality or efficiencies of
these matters?
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Provisional Service Model – Federal
Designated Country List
• Claimants from countries on Federal Designated Country (DCO) list
are less likely to be successful, either with full or partial
representation. As a result, they may be a lower priority for legal
aid services. However, there will be exceptional cases where nature
of the claim indicates a real possibility of success. System must be
able to identify these claimants and refer them to full services.
• Legal needs for majority of claimants from these countries might be
served by:
– Website referral
– Summary legal advice
– Legal assistance to prepare BOC
• Model could offer full or partial representation at RPD hearing in
exceptional circumstances
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Provisional Service Model – Federal
Designated Country List
Questions for discussion
• How should LAO prioritize claimants from countries on the
federal Designated Country list?
• Is full or partial representation necessary in these cases, or
should these resources be targeted to other legal needs?
• Are there other legal services that would be needed by clients
in this group?
• Are there alternative means of meeting the legal needs of this
client group?
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Provisional Service Model – RAD Appeal
• RAD appeal is a new level of appeal not available to claimants from
countries on the DCO list, claimants designated to be part of an
irregular arrival, or those whose claims the RPD concluded were
manifestly unfounded or without a credible basis.
• Appeals are conducted mostly in writing, with oral hearings the
exception, and must be perfected and filed within 15 working days.
• LAO needs to prioritize how to provide this service and develop
process for screening service, based on the materials filed at the
RPD hearing, the RPD decision and RAD jurisprudence.
• Legal needs for claimants seeking RAD appeal might be served by:
– Assistance preparing and filing appeal (written argument)
– Representation when oral hearing conducted
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Provisional Service Model – RAD Appeal
Questions for discussion
• How should LAO prioritize RAD appeals?
• Given the short time frame in which to file and perfect
an appeal, what is the optimum way to meet the needs
of these clients?
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Provisional Service Model – Judicial Reviews
• There may be fewer judicial review applications
because of the RAD. Claimants who were not
successful at RAD may seek judicial review. Those
for whom RAD not available will only have judicial
review as a way to overturn a negative decision, but
will need to bring an application to stay removal.
• Client needs are more demanding and complex at
this level, and require legal representation.
• Effective merit screening needed to fund only those
cases where there is a reasonable likelihood of
success
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Provisional Service Model – Judicial Reviews
Questions for discussion
• How should LAO prioritize applications for judicial
review?
• Are there other legal services that would be needed by
clients in this group?
• Are there alternative means of meeting the needs of this
client group?
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Alternative Intake
Alternative Intake and Service Approaches
• Provisional model “streams” clients based on a claimant’s country
of origin and IRB acceptance rates.
• There may be alternative intake processes and service approaches.
Alternative Delivery and Payment Approaches
• LAO has authority to use wide range of service providers. For
example, paralegals now authorized to appear before IRB.
• LAO also has authority to use wide range of alternative fee
arrangements, such as block fees, service agreements, etc.
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Alternative Intake and Service Approaches
Questions for discussion
• Are there other models available that would address the
legal needs of refugee claimants in contemporary
circumstances?
• What relative priority should be given to the legal needs
identified in this paper and what is the best way of
ensuring high-quality, cost-effective legal aid services?
• What alternative fee arrangements could be piloted for
private lawyers providing refugee legal aid services?
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Implementation and Transition Planning
• It is expected that the consultation with stakeholders will
not be completed when the new legislation comes into
force.
• LAO is developing a transition plan that will ensure
that legal aid services will still be available for eligible
refugee claimants and that will provide a smooth
transition from the old system to the new regime.
• The model that is developed as a result of the
consultations will be a work in progress that will
continue to evolve over time as LAO and its
stakeholders adjust to the new refugee determination
system.
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