Authored by: Pia Zambelli, refugee lawyer, Montreal, Canada and chair of CILA’s Refugee Committee
Note: The views expressed in this article are those of the author and do not necessarily represent the views of CILA and its members.
Canada’s refugee system has definitely evolved since the Liberal government came to power in 2015—but how should we evaluate this evolution? Are we better off than we were 10 years ago?
One major change has been the implementation of the Refugee Appeal Division (RAD) at the IRB. Although technically it was the Conservative government that gave the green light to finally bring the RAD into force, its implementation has largely been overseen by the Liberals. Overall, most refugee lawyers would agree that the RAD has been a success as an error correction mechanism. The RAD’s acceptance rate (30%) is considerably higher than that of the Federal Court (17%), and a RAD appeal is also much more effective than judicial review for several reasons. The ability to consider new evidence, the use of a “correctness” standard, and a faster and simpler process are all advantages that do not exist at the Federal Court.
Nonetheless, the Liberals never really followed through with their pledge of “ending the practice of appointing individuals without subject matter expertise to the Immigration and Refugee Board of Canada”, which undermines the RAD as an institution going forward. On reviewing the current list of RAD members, we can see only a few names recognizable as former refugee lawyers, let alone senior ones. (The same can be said of the RPD members). This is a serious shortcoming, in that the IRB has the sole and exclusive authority to determine refugee status in Canada, and long-standing, in-depth knowledge of the refugee definition would appear to be a basic requirement for decision makers.
Another feature of Liberal rule has been the initiation of several programs aimed at resettling war-refugees from Syria, Afghanistan, Sudan and Gaza. Noteworthy also was the so-called “Guardian Angels” programme, a bold pandemic measure that positively impacted those in the refugee stream, as well as the Economic Mobility Pathways Pilot (EMPP) for skilled refugees awaiting resettlement from abroad. These programmes, instituted under the IRPA as “public policies”, allowed the government flexibility to meet the moment. Although there have been issues around unequal treatment and procedural roadblocks in regard to several of these programmes, they are generally regarded by the refugee bar as positive developments.
Not so positive, however, has been the Liberals persistent and intensifying attempts to bar claimants who have passed through the United States. Not only did the Liberals institute the so-called “five-eyes” ineligibility provision in 2019, they also expanded the scope of the Canada-US Safe Third Country Agreement (STCA) in 2023. Under the “five eyes” provisions, individuals who had claimed in a country (such as the US) with which Canada has an information-sharing agreement, are only entitled to a hearing before a PRRA officer—which usually results in poor-quality decision making and a plethora of Federal Court litigation. On the STCA front, applying the agreement between ports of entry, and thereby effectively shutting down the “Roxham Road” pathway, has had chaotic and often dangerous consequences. Disappointing also has been the Liberals failure to fulfill the promise contained in their 2015 mandate letters to institute a regularization programme broad enough to include refugee claimants already in Canada.
Yet, probably the most significant aspect of the Liberal “legacy” will likely be the astounding rise in the number of refugee claims being made in Canada—60,000 referrals 2022; 137,000 in 2023; and 97,000 in the first six months of 2024. A failure to properly and fairly deal with this phenomenon proactively will likely result in systemic breakdowns—not only at the IRB but also at the Federal Court—and could, in the end, erase the gains made over the past 10 years.