Late last month, the federal government released a review of Canada’s Immigration and Refugee Board that considered the rising number of asylum claims and backlogged cases, and the growing wait times for hearings and appeals. Noting that the IRB is facing a refugee-claims surge that it’s “ill-equipped to manage,” the independently conducted report warns that leaving the board as is runs the risk of “creating a large backlog that, if not tackled promptly, may take years to bring to final resolution.” In order to address this, the report suggests that the government restructure or replace the IRB arm that oversees asylum claims and that it immediately provide material assistance to the IRB to help it address the mounting application backlogs.
According to many immigration lawyers and refugee policy advocates, though, by prioritizing efficiency over human-rights standards, the report ignores the federal government’s role in creating these backlogs.
Canada's asylum-claim system is overseen by the IRB and managed by Citizenship and Immigration Canada, the Canadian Border Services Agency, and the IRB itself. The refugee-determination process is steered by a tribunal-style board that is independent of government. A 1985 Supreme Court decision on the rights of refugees in Canada — which found that all Charter rights apply to anyone physically present in the country, regardless of how they got here — resulted in the system we have now, which guarantees every refugee claimant the right to a full hearing of their case before a decision on their status is made.
Internationally speaking, this is a relatively rare setup for processing asylum claims. “You take the time to make sure the claimant understands what is required where possible, and that they have a right to counsel but not a guarantee of it,” says Peter Showler, a director at the Refugee Forum at the University of Ottawa and former IRB chair from 1999 to 2002. “You get all the available evidence, including source country information.”
The full-hearing right in Canada means that the process will take longer. “An independent member looks at the documents, asks questions of the claimant, and comes to a decision after three hours,” says Showler. “The Canadian model is cited again and again internationally that we do a better job in the quality of our decisions.”
The system has also received its fair share of criticisms — it has a history of appointing rather than hiring board members, and even prior to 2016’s uptick, adjudication often took years. Macdonald Scott, an organizer with No One Is Illegal Toronto and an immigration consultant with Carranza LLP, says that in 2003 — the year he started out in immigration law — a refugee claim took on average about three to four years to process. “Government is mandated by law to have an independent hearing, but wouldn’t put the resources in.”
In 2012, the then-Conservative federal government made a number of changes to citizenship, immigration, and asylum rules in an attempt to streamline the system. Asylum claims would have to be decided within a timeline of 30, 45, or 60 days. The problem with such a timeline was that a successful hearing still required the same number of elements. “There was this decision that it needed to be quick, because faster decisions means faster removals,” says Showler. “The outcome of that was gross inefficiencies. In the third year, there was a range of as many as 60 per cent of hearings not being done in time. The board simply could not keep up with the schedule.”
Janet Dench, executive director of the Canadian Council for Refugees, points to the complications that arose because multiple parties were involved in scheduling claims hearings. “A lot of things got delayed because of security: up to 10 per cent of the hearings wouldn’t even happen because [CBSA] security checks weren’t set up.” Further compounding the backlog issue was the fact that, until recently, the board tended to prioritize recent claims to try to stick to the tight timelines. This meant that older cancelled and adjourned claims were left to languish — such was the case until earlier this year, when the surge in irregular U.S. border crossings exacerbated the problem.
It’s in this context that the report suggests reorganizing the IRB. The first of the proposed models — scrapping the current tribunal system and creating one integrated unit that reports directly to the Ministry of Immigration, Refugees and Citizenship — worries advocates such as Dench. “This review looked like an opportunity to push forward and say on the basis of efficiency to try to get refugee determination away from the IRB.” Under this model, nearly every function of decision-making would rest with the government.
“I think we have to go back to Singh [the 1985 Supreme Court ruling], which is what created the IRB,” says Scott. “It guarantees that a foreign national has a right to a third party that’s not engaged with immigration to hear their case. I question that government can go against an important decision like that.”
Dench says that the second recommendation — to temporarily invest resources in increasing the IRB’s capacity to handle caseloads — could have been implemented earlier, when the report was called for in the first place last spring. “From our perspective, we certainly think the IRB needed to be more efficient,” says Dench. “But it doesn’t help to say we’re going to starve you of resources until you learn to be more efficient, when the system is causing this in the first place.”
Making temporary-hiring increases a permanent part of the board’s mandate, she says, would also go a long way toward addressing the claims spikes that do, in fact, come and go. Last week, the federal government reported that claim numbers dropped in May and June, bringing overall numbers down to what they had been before June 2017.
In 2001, Showler saw more than 44,640 asylum claims made in Canada — roughly 3,000 shy of the 47,800 logged last year. That spike, he says, resulted in a backlog of nearly 64,000 cases. “It was slightly larger than it was now,” he says. “In the following years, the board brought that down to a manageable level within two years. With adequate resources, it’s possible to manage.”
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