Asylum seekers arriving in Canada face significant barriers to justice, new study shows

While Canada prides itself on handling refugee claims efficiently and fairly, new research findings show that Canada’s asylum system is underperforming in its ability to provide access to justice for vulnerable refugee claimants. 

When individuals who flee their homeland for risk of persecution arrive in Canada, they must present their case to the Immigration and Refugee Board (IRB) to be granted protection. The process is complex and benefits from specialized knowledge of immigration law and IRB procedures. Without high-quality legal representation, claimants risk filing inadequate claims that result in negative decisions and eventual deportation.    

A team of researchers from the Centre for Refugee Studies at York University, the Canadian Forum on Civil Justice at Osgoode Hall Law School and the Canada Excellence Research Chair in Migration and Integration (CERC Migration) program at Ryerson University undertook an in-depth investigation into the relationships between legal aid funding, quality of representation and fairness and efficiency at the IRB to understand the barriers to justice faced by vulnerable refugee claimants. Their investigation included countrywide analysis on legal aid funding and data on IRB outcomes, focus groups and interviews with refugee claimants and key stakeholders in the asylum system, and a first-of-its-kind national survey of 370 IRB decision-makers.

The report identified two major factors affecting the access to justice for claimants: the amount of legal aid available to them and the quality of their legal representation.

“Our research clearly showed that the legal aid funding crisis has had a significant impact on claimants’ access to justice,” said Craig Damian Smith, senior researcher with CERC Migration.  “But what surprised us most was the degree to which the quality of legal representation had an effect, and the degree to which all stakeholders agreed that this impacted fairness and efficiency in Canada’s asylum system.”

Key findings of the study include:

• Over 70 per cent of refugee claimants in Canada rely on publicly funded legal aid to present a case at a hearing.
• Stakeholders from across the refugee law profession reported that funding cuts and recurring budget shortfalls significantly impacted their ability to provide the best possible standard of representation.
• Legal aid funding models incentivize some lawyers to take on a very high volume of cases, undermining the quality of representation and claimants’ chances at positive asylum decisions. Legal Aid eligibility criteria is a major barrier to maintaining legal support throughout the asylum process.
• With only six provinces and territories offering legal aid (Newfoundland and Labrador, Quebec, Manitoba, Ontario, Alberta and British Columbia), there is uneven access to aid for claimants and a disproportionate burden on the legal aid plans of Ontario and Quebec.
• Without significant and sustained investment in legal aid, an increase in asylum levels means that more individuals appear at the IRB without professional legal representation. In 2019, almost 3,200 claimants appeared at the IRB without counsel.
• Without access to quality legal representation (i.e., counsel with an immigration and refugee law specialization who can dedicate sufficient resources to representing the case), a claimant’s chance of a successful outcome is reduced. Eighty-nine per cent of IRB decision-makers agreed that low-quality counsel was a significant issue affecting procedural efficiency, as compared to 23 per cent who reported that absence of counsel was a significant issue.
• On the whole, the majority of refugee lawyers provide outstanding service to claimants for significantly lower financial returns than other areas of the legal profession; however, law societies exercise insufficient oversight over poor-quality lawyers, allowing some bad actors to have an outsized impact on access to justice for refugee claimants.

The report provides 10 policy recommendations, ranging from a call for more stable funding from the federal government and improved criteria for provincial legal aid, to better access to quality counsel and hearing preparation for claimants, and increases to oversight and reporting structures for poor-quality or abusive counsel.

About the research partners: 

Craig Damian Smith is Senior Research Associate at the Canada Excellence Research Chair in Migration and Integration at Ryerson University, and a Research Affiliate at the Centre for Refugee Studies at York University

Sean Rehaag is Director, Centre for Refugee Studies, the Founding Director of the Refuge Law Laboratory, York University, and an Associate Professor at Osgoode Hall Law School

Trevor Farrow is Professor, Osgoode Hall Law School and Chair of the Canadian Forum on Civil Justice