FOR IMMEDIATE RELEASE
FEBRUARY 6, 2004

VANCOUVER – An alarming cut in legal assistance for refugee claimants places them – and the refugee determination system – in jeopardy, says a coalition of BC community groups and lawyers.

"The immigration and refugee process in Canada is serious and challenging, and has grown even more so since September 11, 2001," says Catalina Hernandez of the Inland Refugee Society. "Legal and interpreter assistance are essential for many applicants, particularly when their future – and safety -- is at stake. Now, we're being told that legal aid for refugee claimants is being slashed by two-thirds and there is no funding for translations. Without translations of foreign documents, a refugee cannot prove her claim."

The process that a refugee must follow is the same anywhere in the country. The difference lies in whether or not, and how much, legal assistance is provided. Refugee claimants in Ontario are funded for 16 hours of legal assistance, additional hours for hearing representation, as well as interpreter and translator services. There is also a process for applying for additional funds if the complexity of a case requires it. With the most recent funding cuts in BC, new refugee claimants will receive only 8 hours of legal assistance, and interpreter time has been slashed by two-thirds (total allowable is $200). Additional funding for difficult cases has been cut completely.

"The Immigration and Refugee Board will be facing people confounded by the process, with no legal representation, and no or little ability to write, speak or understand English," said Naomi Minwalla, Chair of the Refugee Lawyers Group of the Immigration Law Section, Canadian Bar Association BC Branch. "The Board will be vulnerable to legal arguments that the process is invalid and, in those circumstances, over a very short period of time, the entire system could grind to a halt."

"These cuts aren't about anything more than a battle between Victoria and Ottawa about who should fund legal aid for immigration cases," said Victor Porter of MOSAIC. "Refugee claimants are caught in the middle of an important legal system they don't understand, and in a language they don't know."

In an extraordinary move, the Refugee Lawyers Group has informed the Legal Services Society and the Immigration and Refugee Board that they will not accept legal aid referrals as of February 29, 2004. The Group states that to force them to provide legal assistance within the 8-hour limit would be a violation of their professional obligations to clients.

Victor Porter
MOSAIC, 604 254 0244

Catalina Hernandez
Inland Refugee Society, 604 873 6660

Naomi Minwalla
Chair – Refugee Lawyers Group
CBA BC Branch Immigration Section, 604 689 8100

Legal Aid Refugee Cases - Backgrounder
What is the issue?
A person arriving from another country who seeks to be recognized as a refugee and to be allowed to live in Canada must go through a process involving extensive documentation (often including psychological and/or medical assessments), and a hearing before the Immigration and Refugee Board. The Board makes a decision about whether or not they are genuine refugees and can stay in Canada.

Impoverished refugee claimants not only face a serious legal judgment about their right to live free from persecution but are often incapable of representing themselves at Immigration and Refugee Board hearings due to cultural and linguistic barriers, and trauma arising from the persecution that they may have suffered.

Legal aid for these individuals has been inadequately funded for a long time, in part due to an ongoing battle between the provincial and federal governments as to who should fund it. Last Thursday, it was announced that the funding for legal aid for these cases will be slashed by two-thirds.

Lawyers who provide legal services to refugees being funded by legal aid have commonly been doing so at personal cost, in terms of providing more hours of service than the client can pay for, and covering costs not covered by legal aid. Governments have relied on this for years, and the most recent cuts push the bounds of what is possible or ethically acceptable to many lawyers. Members of the Refugee Lawyers Practice Group of the Canadian Bar Association BC Branch Immigration Section held an emergency meeting February 2, 2004 and resolved not to participate any further in the eroding of the right of refugee claimants to basic legal representation. No legal aid referrals will be accepted after February 29, 2004 if the proposed cuts proceed.

Community groups and lawyer advocates are calling on the provincial and federal governments to urgently address the situation, and to ensure legal representation which is at minimum on par with Ontario's current levels.

BC situation before the cuts
Prior to the proposed cuts in legal aid funding, refugee applicants eligible for legal aid are funded for a lawyer's help in preparing a refugee's initiating document (Personal Information Form) which sets out the reasons that a person fears persecution, death or torture in her country of origin. Applicants also receive legal aid for a lawyer's help in researching and preparing their case and for representing them at their refugee hearings.

Currently, refugee applicants are eligible for 15 hours of a lawyer's assistance and $700 for interpreter costs. In addition, in particularly challenging cases, an applicant could qualify for additional lawyers and interpreter time, if necessary for their case. With the cuts, there will be no exceptions allowed to the maximum funding, and only $200.00 for interpreters.

Legal aid funding for refugee claimants has been reduced several times in recent years. Simultaneously, procedural and minimum legal requirements expected of refugees have significantly increased—requiring more time and more effort on the part of lawyers to prepare refugee cases.

In the wake of the incidents of September 11, 2001, the federal government has doubled the procedural rules for refugee claimants and now mandates a 22 page questionnaire, including a narrative of all reasons that a person fears persecution, death or torture to be completed in great detail within 28 days of making a refugee claim. This is the work required before a hearing is even scheduled.

Even under the prior tariff much more work was required for less money. Many lawyers did much of the extra work for free.

BC situation after the cuts
With the cuts, refugee applicants are eligible for 8 hours of a lawyer's assistance and $200 for interpreter costs. There will be no exceptions allowed to this maximum funding, regardless of the complexity of a case or a high need for more interpreter services.

In addition to losing access to legal counsel, refugees will also lose access to other essential services. For instance, there will no longer be any legal aid funding to translate foreign documents that refugees must rely on to win their claims. All documents filed at a refugee hearing must be in English or French.

Funding for identical work in the Province of Ontario
In Ontario, refugee claimants receive funding for legal assistance of 16 hours plus additional time for the hearing (generally up to 5 hours). There is additional funding available, upon application, for particularly challenging cases. Ontario also fully funds interpreters as required. There is no difference between a refugee claimant in Ontario and a refugee claimant anywhere else in Canada. The laws and the procedures are identical.

Can refugee claimants work to pay their own way?
Even those who want to pay often can't because refugee claimants are not allowed to work in Canada until they receive a work permit which can take months because of delays in processing by Citizenship and Immigration Canada. British Columbia is the third largest refugee-receiving province in Canada. The effect of the legal aid cutbacks to refugee claimants will be enormous.

Who is responsible for funding?
The federal and provincial governments have been arguing this point for years.

The reality is that taxpayers pay both levels of government, and have the right to expect adequate funding to deal with immigration services. In the case of BC, anyone who uses a lawyer pays twice – once on their paycheque and again on their fee for legal services, thanks to a special 7.5% tax that was imposed by the provincial government to pay for legal aid. At last count, that tax brought in more than $100 million to provincial coffers – almost twice what they put into legal aid.

The province argues that the federal government should fund legal aid for refugee cases on the basis that immigration is a federal matter. The federal government says that the provinces are responsible for management of legal aid. In the middle lie real people and families who rely on us, as Canadians, to treat them with respect and fairness in the refugee application process imposed upon them. Their future, and their lives, depend on it.

Community advocates and lawyers call on the provincial and federal governments to find an immediate resolution to the legal aid funding crisis in BC.