asylum claims

Asylum Claims 101: How They Work, Challenges Involved, and a New Pilot Program

In All Posts, Refugees & Citizenship by Valeria CastellanosLeave a Comment

For people who are unfamiliar with Canada’s refugee protection programs, it can be hard to figure out how the system works.

Are refugees and asylum claimants the same?
Do all of them come to Canada the same way?
What happens once they arrive?

Whether the refugee process occurs within Canada or outside, it is complex and lengthy, and in many cases, a person or a family’s safety – or even, their lives – depends on the success of the application. Often, applicants are unfamiliar with the process and the legal implications of the forms or documents requested, and may not be comfortable with the language the application is in. Organizations like the Manitoba Interfaith Immigration Council provide a valuable service to asylum seekers by assisting them with the application process. Now, Legal Aid Manitoba has proposed a pilot program to further support asylum seekers, bringing their expertise to the table.

Canada’s refugee system

The refugee system in Canada was developed based on international agreements and Canadian law. There are essentially two parts to the refugee system in our country:

  1. The Refugee and Humanitarian Resettlement Program; and
  2. The In-Canada Asylum Program.
The Refugee and Humanitarian Resettlement Program

Yazidi refugees in Kurdistan, Iraq. Photo by Defend International

Refugees who come to Canada under this program must be referred – nobody can apply by themselves. Designated referral organizations, private sponsorship groups, and the United Nations Refugee Agency (UNHCR) are the only agencies allowed to refer refugees. People referred through this program cannot be in Canada while applying for refugee status. Additionally, referred applicants must be outside their country of origin or the country where they normally live.

According to the Government of Canada, refugees can only be referred if they are unable to return to their country due to persecution (e.g. race, religion, sexual orientation), have been seriously affected by war or armed conflict, or continuously denied basic human rights such as freedom from slavery, the right to education, or freedom of opinion or expression.

Interview of a Syrian refugee family. Photo by UN Migration Agency (IOM)

Once an individual or a group of people receive a referral, they can apply for refugee status. The application includes a medical exam and security and criminal check. Processing times vary considerably depending on the person’s specific case and location; for instance, applicants in Sudan wait approximately 37 months, whereas those in Iraq may be processed in as little as 17 months, according to the Government of Canada’s processing times website. Part of the application assessment includes verifying the applicant’s ability to resettle successfully in Canada; the process may include an interview as well. Once the application is fully assessed and processed, the person is issued a visa. Refugees coming under this program are granted permanent resident status upon arrival.

The In-Canada Asylum Program

The most significant difference between the Refugee and Humanitarian Resettlement Program and the In-Canada Asylum Program is the location of the individual: asylum seekers apply for refugee protection inside Canada.

Generally, an asylum claim would follow the timeline below (according to the IRB Claimant’s Guide):

  1. Claim: An asylum claim can be presented either to the Canada Border Services Agency (CBSA) at a port of entry or an inland CBSA office, or at an Immigration, Refugees and Citizenship Canada (IRCC) office.
  2. Assessment: Officers will review the claim, to assess the claimant’s eligibility.
    1. If applying at a CBSA office or port of entry, and are found eligible by the officer, they will be given 15 days to complete all forms in the application package.
    2. If applying at an IRCC office, the asylum claimant must have already completed all application forms.
  3. Application and Basis of Claim (BOC) form: If the asylum seeker is found eligible and presented a complete application – including a Basis of Claim (BOC) form, the officer will refer their claim to the Immigration and Refugee Board of Canada and set a date for a hearing.
  4. Hearing: At the hearing, the claimant answers questions by the Refugee Protection Division, and then from their counsel (if any). The claimant may bring witnesses, who would also testify. The counsel (if any) will then make comments or present evidence. At the end of the hearing, the Refugee Protection Division makes a decision and notifies the claimant.
  5. Notice of Decision: If the claim is accepted, the asylum seeker can apply for permanent residence. If the claim is rejected, the claimant may appeal the decision in certain cases.

As with the Refugee and Humanitarian Resettlement Program, refugees under the In-Canada Asylum Program are found eligible if they are a Convention refugee, or if returning to their country would put their lives at risk, or be at imminent risk of torture, cruel and unusual treatment or punishment.

Asylum seekers in Canada

The number of asylum seekers in Canada – people who present an asylum claim from within the country – has skyrocketed as of late. According to IRCC, the number of asylum claimants processed in 2018 was 55,695, and 50,390 in 2017, both figures in stark contrast with the 16,055 applicants in 2015.

Asylum seekers in Manitoba represent less than 2% of Canada’s total; however, the number has increased (following the same trend as the rest of the country). In Manitoba, there were 625 claimants in 2018 and 1,095 in 2017, considerably more than those processed in Manitoba in previous years:

Source: IRCC

Irregular border crossings

From media reports, it would seem that the number of irregular border crossings has increased substantially as well, leaving people wondering why potential asylum seekers would choose to come to Canada that way. The reason lies in the Safe Third Country Agreement, established by Canada and the United States in 2004. This agreement states that refugee claimants must seek protection in the first safe country in which they arrive. Asylum seekers who happen to be in the United States, and who are unable or unwilling to claim asylum in the United States, would be barred from doing so at a Canadian land border port of entry. However, there are several exceptions to this rule, including people entering Canada from the US between ports of entry (irregular crossings).

Making an asylum claim: a long and hard journey

Filling out all the forms and preparing all the documentation required for an asylum claim is not an easy task. The Basis of Claim form is a 12-page document where asylum seekers must provide personal information and details of their situation, including specific information about the risks they face back home. They must fill out additional forms, including one detailing their personal, employment, education and travel history for the past 10 years. All supporting documents must be submitted in English or French, so asylum seekers must also find a translator for documents that are written in other languages.

Just filling out all these forms in extreme detail and gathering the necessary documents would be a daunting and time-consuming task for most people. However, most asylum seekers also need to overcome additional complications. Obstacles they may face include language barriers, and lack of understanding of the forms to fill out or documents to present. Sometimes they may even lack access to required documents.

While asylum claimants could hire a lawyer to assist them with the process, in most cases this is an option they can’t afford, as fees could accrue up to a few thousand dollars. In many cases, however, legal aid and not-for-profit organizations can assist asylum claimants.

Assisting asylum claimants in Manitoba

Manitoba Interfaith Immigration Council (MIIC), also known as Welcome Place, is the only not-for-profit agency in the province that provides a comprehensive range of services and support to asylum seekers in Manitoba. Their services include paralegal services, information on refugee claims, and legal aid, including assistance in completing the asylum claim application, including the Basis of Claim document, which is a central part of the application and the subsequent hearing with the Immigrant and Refugee Board. This is currently done with the assistance of law students from the University of Manitoba.

MIIC helps hundreds of asylum seekers every year; their 2017-2018 annual report cites lists 940 refugee claimants received In-Canada Protection Services (including refugee claims) that year, and 552 claimants in the previous fiscal year. These numbers are not surprising, given the sharp increase in the number of asylum seekers in Manitoba – and all of Canada – in 2017 and 2018.

Legal Aid Manitoba’s pilot project

Legal Aid Manitoba (LAM) is working with Welcome Place on a pilot project in order to address what they see as a gap in services to asylum seekers; this project was a suggestion and initiative of LAM. According to Samuel Raposo, Deputy Executive Director of Legal Aid Manitoba,

Hearings (…) are very inquisitorial.  Findings of credibility and trustworthiness are based on the information provided in the Basis of Claim and supporting evidence that is being provided; most of which is [currently] being completed by volunteers without supervision by counsel.

LAM proposes that advocates (non-lawyers) provide representation to asylum seekers for the whole process. Services would include taking legal aid applications, preparing and completing a Basis of Claim, and providing representation during the hearing, all under the supervision of LAM lawyers at their Public Interest Law Centre. According to Raposo, advocates will have the capacity to assist in 115 cases per year. He also mentioned that the Legal Aid Manitoba Act authorizes the delivery of services by articling students or non-lawyers under the supervision of lawyers. The pilot project, through which law students and advocates will represent asylum seekers, will operate similarly to cases where a lawyer assigns a file to an articling student under their supervision.

There has been some controversy over whether non-lawyers should represent asylum claimants at the IRB hearing. For instance, Alastair Clarke told CBC Manitoba that he has concerns regarding the project, in terms of Section 91(1) of the Immigration and Refugee Protection Act. In this regards, Legal Aid Manitoba believes there is no restriction against this type of project. The mentioned section of the Immigration and Refugee Protection Act forbids non-lawyers from representing asylum seekers “for consideration” (i.e. for a fee). The act, however, does not stop advocates from representing asylum seekers for free, i.e. not for consideration. Raposo further notes that the Immigration and Refugee Protection Act allows articling students (supervised by lawyers) to represent asylum seekers, and posits that trained advocates can assist asylum claimants, as well as articling students, under appropriate and capable supervision.

What the future holds for asylum seekers

Regional and international displacement will likely continue for the foreseeable future. As the political landscape continues to harbor violence or civil unrest, economic crisis, and famine in several regions of the world, it’s unlikely that the number of refugees and asylum seekers will decrease in the near future.

The process of vetting and assessing displaced people is complex, and as a result, refugee and asylum claim applications are just as complex. While asylum seekers are often unfamiliar with the legal aspects of the application, incorrect or incomplete applications could result in deportation, which could put asylum seekers’ lives at risk. Through services such as those offered by Manitoba Interfaith Immigration Council and those proposed by Legal Aid Manitoba, asylum seekers stand a better chance of presenting a complete application that accurately depicts the risks they face back home and hopefully grants them a new future in safety.

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