A Synthesis of the Immigration and Refugee Legal Aid Research
5. Cost Drivers
- 5.1 Number of Refugee Claims
- 5.2 The Impact of the IRPA
- 5.3 Lack of Understanding of the Process
- 5.4 Interpretation and Translation
- 5.5 Judicial Reviews
- 5.6 Potential Future Cost Drivers
5. Cost Drivers
The research found that the legal aid plans have little control over many of the factors that affect the cost of service provision. To reduce the cost of service provision, legal aid plans would either have to reduce the level or quality of service or consider alternative service delivery mechanisms (for some options on other ways of delivering refugee legal aid, see Section 6.0).
This section discusses the key factors that respondents identified as contributing to the cost of providing immigration and refugee legal aid. These include:
- The number of refugee claims;
- The impact of the IRPA;
- Lack of understanding of the process;
- Interpretation and translation; and,
- Judicial reviews.
Respondents also identified a number of issues that, while they do not currently contribute greatly to the cost of service provision, could potentially contribute to an increase in cost in the future.
5.1 Number of Refugee Claims
The number of people making refugee claims is the most important factor contributing to demand for legal aid services and, therefore, to the cost of providing these services. An increase in the number of people making refugee claims in Canada in a given year increases the total amount of funding required to provide those services. Increased numbers of refugee claimants also have indirect effects on legal aid costs, for example:
- If the CIC and the IRB process more cases per year in response to higher numbers of claimants, the cost of providing immigration and refugee legal aid will increase because more cases per year will require legal aid funding.
- If the increase in number of refugee claimants is partly due to the illegal smuggling of migrants or to unanticipated arrivals of large numbers of refugees (such as Chinese marine arrivals), the cost of providing immigration and refugee legal aid will increase. Immigrants and refugees who arrive in these ways are more likely to be detained, the refugee claims process they undergo may be more adversarial, and more interventions may be required by the Minister to oppose the granting of refugee status.
The research indicates that the refugee policies of other developed countries are not likely to have a major influence on the number of people making refugee claims in Canada. The exception may be the United States, with whom Canada has recently signed a "safe third country" agreement. Under this agreement, a refugee who arrives first in the United States will be required to claim refugee status there, rather than come to Canada and make a claim here. Likewise, a refugee who arrives in Canada first would have to claim refugee status here, rather than going to the United States. It is not clear whether the "safe third country" agreement will increase or decrease the number of refugee claimants in Canada and, by extension, the cost of providing legal aid services. The agreement may result in fewer refugee claims and therefore lower costs. However, there may be other aspects to enforcing the "safe third country" agreement that increase the demand for legal aid services, such as:
- An increased number of refugee claimants may arrive without identity or travel documents, so that the first country they arrived in is not clear;
- Refugee claimants may change their travel patterns in order to ensure that they arrive in Canada first and are able to claim refugee status here; and,
- Hearings may be required to determine which country should process the claim (Canada or another "safe third country"), at least until there is some experience with the law and precedents are established.
5.2 The Impact of the IRPA
The Immigration and Refugee Protection Act (IRPA) has resulted in several changes to the immigration and refugee determination process in Canada. In some cases, the IRPA may also have an effect on the demand for immigration and refugee legal aid services or the cost of providing those services (some of the cost implications of the IRPA are not yet clear, as the Act has not been fully implemented to date).
Respondents identified the following potential effects of the IRPA on the cost of service provision:
- More stringent CIC policies at the eligibility and admissibility stage - Some respondents predict that the IRPA may result in a more stringent application of CIC policies at the eligibility and admissibility stage of the determination process. Respondents at one legal aid plan felt that an increase in stringency might result in the extension of legal aid coverage at this stage, which would increase demand for legal aid services.
- Single member RPD panels - The Refugee Protection Determination (RPD) process is intended to make the IRB more efficient by using single member panels instead of two-person panels to increase the processing rate for claims. In the short-term, a number of issues may arise that could result in increased legal aid costs:
- Hearings could be longer until IRB board members and claimant representatives gain experience with the new system, which could increase costs in those jurisdictions that compensate counsel on an hourly basis.
- The number of cases being processed each year could increase as existing case backlogs are cleared, which could significantly increase demand for legal aid services.
- Refugee Appeal Division (RAD) - This division is mandated to decide appeals relating to RPD status decisions made at the IRB. The appeal is intended to be a paper-based, administrative process [15] that occurs between the IRB hearing and the application for leave for judicial review stage. Many respondents believe that RAD appeals will require legal representation. If legal aid provides representation for RAD appeals, the cost implications could vary considerably. In cases where the RAD is able to correct errors in RPD decisions without resulting in a new RPD hearing or an application for leave for a judicial review, there could be cost savings for legal aid. However, in cases where RAD decisions do result in applications for leave for a judicial review or a judicial review, the legal aid costs associated with the RAD decision would be incurred on top of the existing cost structure.
- Pre-Removal Risk Assessment (PRRA) - Under the IRPA, PRRA applications replace PDRCC applications. PDRCC applications are only covered by legal aid in British Columbia and Alberta but there is a sense among respondents that contentious PRRA applications will require representation by a lawyer because the process is more encompassing. If legal aid plan coverage is expanded to cover PRRA applications, then the cost of service provision will increase significantly. In the short term, it is also likely that the PRRA's consolidation of protection grounds will result in an increase in legal arguments around the definition of the "grounds". This would increase legal aid costs because cases would be more complex and there could be a greater number of judicial review applications. This increase in costs would continue until a common understanding of the meaning of "consolidated grounds" is achieved.
- Judicial Reviews - The implementation of the IRPA could result in a short-term increase in legal aid costs as aspects of the legislation are clarified through the judicial review process.
5.3 Lack of Understanding of the Process
Most refugee claimants do not have a very good understanding of the refugee determination process in Canada and their knowledge of the system comes from friends and relatives who are also likely to be under- or mis-informed. Often, they arrive in Canada expecting an early hearing and have the impression that they will be able to represent themselves. Once they are involved in the process, however, they find they require some form of assistance [16]. The lower the overall level of understanding of the immigration and refugee process among refugee claimants and their rights and obligations under Canadian law, the greater the demand for and cost of providing legal aid services.
5.4 Interpretation and Translation
Most legal aid plans compensate lawyers for the costs they incur for interpretation and translation. Interpretation and translation costs make up a significant part of the budget for legal aid in most provinces. For example, in British Columbia and Ontario these costs accounted for more than 16% of total immigration and refugee legal aid expenditures in 2001/02.
Many respondents noted that the formal requirements of the IRB drive the need for interpretation and translation. Interaction with a claimant in the early stages of the refugee determination process (before the hearing) and the preparation of their case documents depend heavily on the availability of interpretation and translation services to ensure open and clear communication. Translation and interpretation costs are also a factor during hearings and at later stages in the process. (However, the IRB does fund hearing room interpreters and the translation of certain key documents during the RPD stage.)
In addition to paying for interpretation and translation, legal aid can be involved in coordinating language and translation services in some circumstances, which can increase the burden on legal aid staff. The exception is in Manitoba, where these services are coordinated by a supervised paralegal at an NGO. Most plans report there are problems in obtaining and coordinating qualified, low-cost interpreters and translators.
5.5 Judicial Reviews
Although judicial reviews are only granted in a small number of cases, leave for judicial review applications and judicial reviews combined account for a significant portion of overall legal aid costs. For example, they account for 17.5% of expenditures in Ontario in the 2000-2001 fiscal year.
5.6 Potential Future Cost Drivers
There are also a number of other factors that may affect the cost of service provision in the future, including:
- Special needs cases - At present special needs cases do not add significantly to the cost of providing legal aid services because there are few of them, there are limitations on preparation time for lawyers, and work related to referrals or guardianship is done free of charge. However, if any of these factors were to change (for example, because of the protocols and guidelines being developed by the CIC, IRB, and the provinces), special needs cases could become a cost driver.
- Trends in eligibility interviews - Some respondents indicated that eligibility interviews at ports-of-entry have become more thorough and in-depth, especially since September 11th. They feel that these interviews can often go beyond administrative concerns and into substantive issues, either deliberately or due to an inability to differentiate between the two on the part of the interviewer. These respondents felt that, if this trend continues, it may result in longer refugee determination hearings because confirming, clarifying and rebutting statements in the interview notes will take more time and counsel will become more likely to dispute the admissibility of interview notes. In jurisdictions using hourly rates to compensate counsel, longer hearings would result in higher costs. In other jurisdictions, the increase in length and complexity of the hearings would result in pressure to increase the tariff for hearings. If the tariff were increased, that would also result in higher costs.
- Increased application of rigorous enforcement mechanisms - If CIC policy were to shift toward the increased application of rigorous enforcement mechanisms, it might lead to an increase in the number of detentions [17]. This would raise the cost of providing legal aid for those jurisdictions that cover detention hearings.
- CIC's "rapid referral" policy - CIC has implemented a policy of 'rapid referral' of claims to the Refugee Protection Division (RPD) of the IRB. All claims must now be referred within three working days. As a result, the determination process can be completed more quickly, but a claimant's eligibility to make a claim may be revoked after the process has begun. In such a case, legal aid may already have been provided and costs incurred before a claimant is deemed ineligible. If the current rate of denial of eligibility (less than 1% of claims under the CRDD process) is maintained, then the rapid referral policy is not likely to become a cost driver. However, if the rate of denial increases, then these costs may become more significant. It is also possible that, as a result of the speeding up of referrals to the IRB, legal aid plans may experience administrative pressure to process certificates and arrange counsel more quickly, resulting in increased costs.
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