The Role of Counsel in Canada's Refugee Determination System: An Empirical Assessment

This article examines the role of counsel in Canada’s refugee determination process through an empirical analysis of the relation between counsel and outcomes in over 70,000 refugee claims decided by the Immigration and Refugee Board from 2005-2009. The article demonstrates that competent counsel is a key factor driving successful outcomes in refugee claims. The article also shows that provincial legal aid programs are increasingly restrictive in funding legal representation for refugee claimants who cannot afford counsel. Taken together, the article argues that the increasing restrictions on legal aid put the lives of refugees at risk. The article also demonstrates that refugee claimants represented by immigration consultants are less likely to succeed than refugee claimants represented by lawyers. As a result, and in light of evidence that the immigration consulting industry has not established adequate procedures to ensure that consultants adhere to standards of professional conduct, the paper contends that immigration consultants should not be authorized to provide unsupervised representation in Canada’s refugee determination system. In short, the paper argues that counsel play an important role in the refugee determination process. Accordingly, measures should be taken to ensure that refugee claimants can access competent counsel, while simultaneously ensuring that unqualified counsel do not play a role in life and death refugee decision-making.