Fixing the asylum system: For starters, ditch the DCO

  • August 25, 2016

The Immigration Law Section took part in a round table discussion held by the Department of Immigration, Refugees and Citizenship Canada in July, and followed up with written answers to the key questions posed for the consultation, which were:

  1. (a) What measures do you recommend for increasing the fairness of Canada’s asylum system?
    (b) How can the refugee determination process be made faster?
  2. (a) Can the Designated Country of Origin policy be improved to better serve these purposes?
    (b) If the DCO policy cannot be improved, what are better alternatives?
  3. Should claims be prioritized in Canada’s asylum system? If so, on what basis and how?
  4. Can these existing measures be improved in order to prevent the misuse of the asylum system?
  5. In your view, what aspects of the in-Canada asylum system are working well?

The Section provided a multi-faceted response to the first question, breaking it down into general recommendations, recommendations for children, for the disabled, recommendations to ensure quality decision-making, and recommendations to protect the public.

One of the first recommendations was to eliminate the Designated Country of Origin policy, which also answers both parts of Question 2.

“The CBA Section supports complete elimination of the DCO designation,” writes Section Chair Stephane Duval, noting that several constitutional challenges to the policy have been settled out of court, leaving no precedents for other failed refugees, but that the policy has been found to be unconstitutional in two Federal Court cases.

“Constitutional challenges are costly, most claimants cannot afford to pay for a lawyer, and legal aid is insufficient to finance constitutional challenges at the Supreme Court of Canada. Every day DCO represented and unrepresented claimants including women and children are denied a stay and deported without access to the Pre-Removal Risk Assessment process.”

Instead, the Section recommends individualized assessment and the establishment of a fast-track procedure for refugees who have left children behind.

Other general recommendations include allowing more time and/or more exceptions to the tight delays to filling the Basis of Claim form, allowing claimants access to a medical examination, and repealing sections of the Immigration and Refugee Protection Act so that claims where a final determination has been made by the Refugee Appeal Board can be reopened.

To make the system faster, the Section recommends returning to the old fast-track system. “There was a triage of cases that made sense. All prima facie good files, no matter the country of origin, that were fast-tracked under the old system should be fast-tracked under the new system.” As well, the Section says the IRB office in Ottawa should be reopened, and the list of issues sheet, which helped all parties focus on the issues of the file, should be reinstated.

The Section argues for a shorter delay in processing work permits for refugees. A system where they can’t work encourages refugees to go underground, which brings a number of problems, including tax evasion and human trafficking.

“Families without work permits are forced to live in poverty,” the Section says, pointing out that DCO claimants have to wait 180 days to apply. “They are disempowered from presenting the best refugee claim possible.”

There are some bright spots in the system, which the Section highlights in answer to Question 5, including:

  • Board members are now truly bilingual
  • The new system has a faster refugee determination process
  • The vast majority of claimants are now represented by lawyers before the RAD and IRB
  • There are fewer ghost consultants.
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