Access to Justice for Refugees: How Legal Aid and Quality of Counsel Impact Fairness and Efficiency in Canada's Asylum System

44 Pages Posted: 14 Dec 2021

See all articles by Craig Damian Smith

Craig Damian Smith

CERC in Migration & Integration, X University; York University - Centre for Refugee Studies

Sean Rehaag

Centre for Refugee Studies, Refugee Law Lab & Osgoode Hall Law School, York University

Trevor C. W. Farrow

York University - Osgoode Hall Law School

Date Written: December 8, 2021

Abstract

This report presents findings from a study exploring relationships between refugee legal aid, quality of counsel, the fairness and efficiency of asylum procedures, and access to justice for refugee claimants in Canada.

In order to understand how access to legal aid affects access to justice for claimants, this study employed a multi-methods approach to collect data from stakeholder groups across Canada’s asylum system.These included:

• An original online survey delivered to 370 IRB decision-makers;
• Fifteen semi-structured interviews with refugee claimants who experienced barriers to justice; and
• Three focus groups with lawyers, members of legal aid organizations and refugee law associations, Immigration Consultants, and front-line staff at NGOs and shelters.

This project also presents institutional data on legal aid expenditures, representation rates, appeal rates between represented and self-represented claimants.

Findings show that refugee claimants in Canada experience significant barriers to justice, which often begin at the outset of their procedures and persist through the asylum process. Representation rates are currently higher than for other tribunals, though funding for legal aid remains precarious over the mid and long-term. In that context, our most important finding is that quality of representation is an urgent and long-standing issue and that this issue currently has more significant impacts on efficiency, outcomes, and access to justice than the inability of claimants to secure counsel.

The study yielded specific findings related to:

• The importance of early access to high-quality counsel;
• The crucial but understudied role of civil society organizations;
• Impacts of legal aid funding on access to counsel;
• Connections between representation, outcomes, and efficiencies;
• Significant concerns around quality of representation; and
• Lack of effective oversight and accountability for abusive counsel.

A series of policy recommendations flow from these findings. Specifically, as further developed in the Conclusions and Policy Recommendations section of this report, recommendations include:

• Establishing adequate, stable and responsive legal aid funding;
• Facilitating early access to quality counsel and assistance with file and hearing preparation;
• Exploring service delivery models that rely more heavily on refugee legal aid clinics, combined with wraparound support services; and
• Ensuring oversight and improved reporting structures to address low-quality and abusive counsel.

Keywords: Access to Justice; Quality of Counsel; Refugee Law; Canada

Suggested Citation

Smith, Craig Damian and Rehaag, Sean and Farrow, Trevor C. W., Access to Justice for Refugees: How Legal Aid and Quality of Counsel Impact Fairness and Efficiency in Canada's Asylum System (December 8, 2021). Available at SSRN: https://ssrn.com/abstract=3980954 or http://dx.doi.org/10.2139/ssrn.3980954

Craig Damian Smith (Contact Author)

CERC in Migration & Integration, X University ( email )

350 Victoria Street
Toronto, Ontario M5B 2K3
Canada

HOME PAGE: http://www.craigdamiansmith.com

York University - Centre for Refugee Studies ( email )

4700 Keele St.
York Lanes
Toronto, Ontario M3J 1P3
Canada

Sean Rehaag

Centre for Refugee Studies, Refugee Law Lab & Osgoode Hall Law School, York University ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

HOME PAGE: http://www.osgoode.yorku.ca/rehaag-sean/

Trevor C. W. Farrow

York University - Osgoode Hall Law School ( email )

4700 Keele Street
Toronto, Ontario M3J 1P3
Canada

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