Searching for a counsel to go through the asylum process with: Criteria, challenges and consequences

Blog post by Charlotte Dahin, a jurist (BA, MA, LLM) and currently a PhD student at the University of Ottawa (Canada) where she is researching the experiences of asylum seekers during the in-Canada refugee status determination process from a femin…

Blog post by Charlotte Dahin, a jurist (BA, MA, LLM) and currently a PhD student at the University of Ottawa (Canada) where she is researching the experiences of asylum seekers during the in-Canada refugee status determination process from a feminist perspective.


The inland refugee status determination (RSD) process as it exists nowadays in Canada involves a complex series of steps, that it is difficult to go through without help. The objective of the process is to determine whether a claimant meets the definition of a “Convention refugee” as stated in the 1951 Convention on the Status of Refugees. This definition, which is incorporated in Canadian law in section 96 of the Immigration and Refugee Protection Act, recognizes as a refugee: “a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country”. People who decide to claim asylum have thus to demonstrate that they meet the criteria of the definition, and are at risk, if they are not convincing enough, of being sent back to their country of origin. More concretely, claiming asylum means going through a long and multi-step process, key proceedings of which include completing a Basis of Claim (BOC) form (in which asylum seekers have to explain why they are seeking protection in Canada), collecting and submitting evidence, and defending the case in front of a decision maker.  

The process being particularly complex, asylum seekers can be helped by a counsel in preparing their claim, and this is so in the majority of the cases in Canada (1). In Ontario, the province that hosts the most refugee claimants in the country and in which all the asylum seekers whom I interviewed for my thesis (on which the ideas of this post are based) had gone through the asylum process, legal aid coverage is provided. Asylum seekers who meet the financial eligibility requirements and other conditions put in place by Legal Aid Ontario (LAO) can thus obtain certificates by which they get access to a lawyer (a private lawyer in most cases) whom they can choose amongst a list of lawyers paneled by LAO. If they are not eligible, there are several other options for asylum seekers, such as having access to representation through community legal clinics or hiring someone at their own expense.  

While the importance of being represented has been demonstrated, research has also been interested in the different types of counsels (lawyers, immigration consultants, etc.), the strategies they use and the consequences on the preparation of the claim (2). Authors have highlighted, for example, how the investment of legal representatives in the gathering of documentary evidence and the obtaining of expert opinions on country conditions and on the health of applicants is likely to have an impact on the final decision (3). Questions of sex, gender, race, class, etc. and how they intersect are also essential to be considered when thinking about representation, as they are likely to have an impact on the client-lawyer relationship, and thus on the building of the claim and the decision-making (4). In a similar vein to the already-existing literature, one participant in my thesis (which itself concerns the experiences of asylum seekers during the in-Canada RSD process) explained, for example, why she would not have liked to have a man from her community to be her lawyer, as this would have made her feel uncomfortable to talk about her experiences. On the other hand, one lawyer explained how her position as a white Canadian woman has made some of her clients feel uncomfortable when answering personal questions about their lives. These specific positions and privileges place asylum seekers in front of a variety of difficulties and challenges in respect of their relationship with their lawyer, which may have an impact on the building of the claim (if they decide not to mention certain experiences that could be relevant for their case for example) and ultimately on the results.  

Although many stages of the client-counsel relationship could be studied (such as the discussions over the BOC form), this paper, which, as mentioned above, is based on ideas that have been developed during data collection and analysis for my thesis (5), aims at highlighting some difficulties and challenges mentioned by the participants about the search for a counsel. More particularly, I am interested in showing how asylum seekers’ and immigration actors’ positions at the intersection of several systems of power (gender, race, social class, etc.) and the different social contexts they are involved in, may have an impact on their search for and securing of a counsel.  

The search for and the choice of the counsel is one very important step of the process of applying for refugee status as the counsel they will secure for themselves will greatly influence their experiences through the process. In addition, ending the collaboration afterwards is often difficult.

 

Criteria and strategies

Criteria. The women refugees who participated in my project mentioned a series of specific criteria they were looking for in their prospective counsel and/or elements that they took into consideration when choosing whom to contact. Those criteria and elements are varied and range from the location of the lawyers’ office being close to their accommodation, to considerations related to the sex of the lawyer, their language, etc. For this post, I will focus on those last criteria (sex, language, etc.).  

The desire to have a woman as their counsel was mentioned several times. In a context where it is asked to asylum seekers to talk in detail about their personal and often private experiences, the idea that women are more in a position to listen to and understand the experiences they have been through is often highlighted. This participant for example, explained: “I wanted to have a woman as my lawyer (…), social dynamics always play a role in how we chat with people and I don’t think it would have been as easy for me to share some experiences with a male lawyer”. In certain instances, this criteria was combined with others, such as the desire to have a counsel speaking a specific language. As such, one lawyer interviewee mentioned she was specifically contacted because the client was looking for a French-speaking woman as her counsel. As it will be explained below, those elements, in combination with others, such as race, ethnicity and culture, although not always mentioned specifically as criteria that were taken into consideration when searching for a lawyer, are often mentioned as a problem later, when it is time to talk to the lawyer and fill in the BOC.  

A few lawyer interviewees also mentioned the importance of taking those elements into consideration early in the process, as it can be difficult for asylum seekers to change their counsel later in the process. These difficulties were confirmed by some of the refugees I interviewed.  

Strategies to find the lawyer of their choice. Participants in my project mentioned different strategies in doing a research for a counsel. Some of them explained how they turned to their ethnic community, family or coworkers for advice, while other explained that they received information and advices about counsel from settlement agencies, community centers, women’ shelters, etc. Some of them also explained how they found their counsels simply by looking on the internet and reading the reviews.  

Although asylum seekers sometimes have specific criteria in mind when thinking about their prospective counsels, several challenges and barriers arise.  

Challenges and barriers

When it comes to finding, choosing and securing a lawyer, the deadline within which they are expected to submit the BOC is the difficulty that is the most often mentioned by the participants that I met. This timeframe varies depending on whether a person claims asylum at a Port of Entry, in which case they have 15 days to submit the BOC form, or inland. In the case asylum seekers claim asylum at a Port of Entry and subsequently try to find a counsel (if they want so), this does not give them a lot of time to do extensive research and make an informed choice, in addition to creating stress and anxiety as explained by two of the refugee women that I met.  

In addition to the fact that some claimants may not be able to find a lawyer within that short period of time, the short timeframe may also push claimants to choose someone to represent them although they are not the person they would like to work with or they do not meet the criteria that the claimants have been looking for. For instance, one refugee woman I met explained how she could not contact the lawyer she wanted based on the recommendations she had received, as a consequence of not having enough time to do additional research and finding the information she needed (address, phone number, etc.) before the deadline. She then explained how she had to contact another lawyer with whom she ended up having a difficult relationship with. She afterwards decided not to continue with this lawyer and contacted again the lawyer she wanted initially who eventually represented her.  

While such a limited timeframe is of concern for all claimants, the question of gender, what it implies in terms of social roles and its consequences were highlighted several times. Hence, participants explained that the traditional gendered cultural roles, where, for example, it is more expected from women than men to provide care for children and other family members (one lawyer referred to it as the “mental load of taking care of a family unit”), can create specific barriers for them, as it adds to everything else that they have to take care of during the process. Another participant, who has two children and was pregnant at the time, underlined, while talking about the period during which she had to arrange the legal aid certificate (which allows her to have access to representation) and secure a lawyer, the additional difficulties led by looking after the children and being pregnant, and the fact that she had no assistance in taking care of the children. She later mentioned that it was easier when her children started to go to school. Gender, and everything it implies, however does not only concern the questions of children and who is responsible for them, as it will be illustrated below.  

Gender also interacts with other elements, such as the knowledge of French or English, the level of education, the socio-economic background, and the extent of the network among others. Language, first, is an important element that is often mentioned and is linked to gendered cultural roles in different ways. One lawyer underlined, for example, how women may have more difficulties to learn French or English due to their familial responsibilities. This lawyer specifically referred to women travelling with their partners, learning the language of the country of destination slower than their partners and thus being less able to participate in the building of the claim and in the process.  

The question of the network in the country of destination is also discussed by some participants. Although having a network in Canada can be helpful in different ways when it comes to finding a lawyer, participants also reported specific challenges faced by women in this context. As such, one woman explained how their first counsel was recommended by a friend of her husband in the ethnic community and how she did not initially meet the lawyer together with her husband, despite the fact that her husband did not speak English, but she did. She then explained: « In Lebanon it is always, it is the man, he needs to control. It is him who control the family hum… My husband is not like that but his friend is, yes, all Lebanese are like that, ‘yes, we are the men, always the men, it is us who we are controlling’”(6).  

 

Conclusion

Although asylum seekers may wish the person they would like to go through the process together to match specific criteria, they usually face several challenges and difficulties when searching for, contacting and securing this person. Some of those criteria, although not always mentioned specifically in the process of searching for a lawyer, are often mentioned as a problem later, when it is time to talk to the lawyer and fill in the BOC form, as it has already been highlighted in the literature. This is particularly the case concerning the criteria related to sex, gender and ethnicity, as explained above (example of a woman who would not be comfortable to talk to a male lawyer, or inversely). It is however interesting to observe that some of the mentioned reasons for wanting a man/woman lawyer seem to be based on stereotypes of men and women’s roles in society, which is a topic that would be interesting to research further (7). The responses of certain women lawyers I interviewed reflect this idea. One of them, for example, referred to her experience as a mother and another one to “the experience of all women being used to listen and to be ‘passive supports’”, to explain why they are in a better position to understand certain experiences of women asylum seekers.  

In any case, those elements are important to take into consideration when choosing a lawyer, as several participants also explained how difficult it can be to change lawyer after choosing them. When asylum seekers have access to their lawyer through legal aid for example, the possibility of changing lawyer is said to be rare and only possible under specific conditions (8). One interviewee also explained how she was threatened by her lawyer when she and her husband decided to be represented by someone else: “we were told that we can’t do that, and it’s not legal, and that would put us in trouble, and that would hum only cause, like, discrepancies with the system, and (…) they were trying to intimidate us not to change lawyers, not to raise our voices, but we are not naive”.  

Sources

(1) Rehaag, S. (2011). The role of counsel in Canada’s refugee determination system: An empirical assessment. Osgoode Hall Law Journal, 49(1), 116.

(2) See for example (Rehaag, 2011)

(3) Ramji-Nogales, J, Schoenholtz A I, & Schrag, P G (2007) ‘Refugee Roulette: Disparities in asylum adjudication’ Stanford Law Review, 60(2), p. 341.

(4) Bates, E., Bond, J., & Wiseman, D. (2016). Troubling Signs: Mapping Access to Justice in Canada’s Refugee System Reform. Ottawa Law Review, 1–72.

(5) For my thesis project, I interviewed 14 lawyers and 8 women who went through the refugee status determination process in Ottawa. I also did several observations of meetings between lawyers and asylum seekers to prepare their claim or discuss their options.

(6) My translation (« c’est toujours c’est l’homme il faut qu’il contrôle, c’est lui qui contrôle la famille hum… Mon mari, il n’est pas de cette façon, mais son ami, oui, tous les libanais, ils sont comme ça, ‘oui, nous les hommes, toujours les hommes, c’est nous qui contrôlons’)

(7) Gender matching techniques have already been criticized in the literature.

(8) Legal Aid Ontario ‘Can I change my lawyer?’ https://www.legalaid.on.ca/faq/can-i-change-my-lawyer/    


The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law InitiativeWe welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.

This post was originally published on Refugee Law Initiative Blog.


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