Robert Vineberg, an independent researcher and author on immigration, was previously director general of Citizenship and Immigration Canada.
Canada is facing a massive and growing backlog of refugee claims. Cases that need to be processed have reached 250,000, triple the number in 2019. This backlog would take almost three years to clear if no new cases are accepted – an impossible scenario – and without a major injection of new staff and resources, processing times will only grow. Many are also forecasting that the refugee claimants in Canada will rise dramatically after Donald Trump retakes power south of the border. However, recent shifts in government policy on immigration here in Canada could provide a window to finally clear our backlog if the right processes are put in place.
The recently announced decrease in 2025 immigration levels by 21 per cent, from 500,000 to 395,000, as well as earlier announced reductions in the number of temporary workers and foreign students, presents a unique opportunity to divert immigration resources to deal with the growing backlog of refugee claims. Given the expected reduction in workload on regular immigration processing, there should be surplus immigration officers available to process refugee claims. However, the devil is in the details.
The immigration officers in question work for the Department of Immigration, Refugees and Citizenship Canada (IRCC), while refugee claims are handled by another government agency, the Immigration and Refugee Board (IRB). The IRB was established in 1989 in response to the Supreme Court of Canada’s 1985 Singh decision, which determined that the old process was a denial of Charter rights as a person could be denied refugee status without the opportunity of having a face-to-face hearing before an impartial decision-maker.
In response, the federal government created a system whereby all refugee claimants would be offered an oral hearing and established the IRB to administer the refugee claims process. The IRB also adjudicates removal orders made by an immigration officer and hears appeals on immigration and refugee admission decisions. The members of the IRB, who make decisions on refugee cases, are Governor-in-Council appointees – not public servants.
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The government response was an overreaction because the process soon became bogged down both by insufficient appointments to the IRB and by the sheer volume of claimants. The problem is that legitimate refugees have to wait in line with all the bogus claims, resulting in waits of several years for a decision. The Supreme Court decision only mandated that rejected claimants are entitled to an oral hearing. There could be a faster process to deal with legitimate claims.
The result has been that the IRB has almost continually faced backlogs, both delaying the recognition of legitimate refugees and giving unfounded claimants several years of de facto residence in Canada before being subject to a removal order. However, not all those ordered removed eventually leave Canada. The longer they remain in Canada, the greater the likelihood of developing a rationale for remaining, including marriage and children. Many have been allowed to stay in Canada under humanitarian and compassionate provisions or by being sponsored by a Canadian spouse.
So what needs to be done? In 2023, 79 per cent of the claims were determined to be well-founded. That means that all those cases went through the full determination process needlessly. The IRB does an excellent job dealing with appeals, but it was never designed to be a major operational agency, unlike IRCC, which is exactly that. Furthermore, as the IRB both determines refugee status and hears appeals of its own decisions, there is significant potential for a conflict of interest.
The solution is to turn over the responsibility for the initial determination of refugee status to officers of the immigration department. The IRCC is a huge department with more than 13,000 employees (not all, of course, being immigration officers). If the resources at the IRB used for the initial determination were transferred to IRCC as well, there would be a much larger and more flexible work force to make the initial refugee determination decisions.
All refugee claimants interviewed and approved by an IRCC officer would obtain refugee status in a far timelier manner. Furthermore, refugee claimants refused by an IRCC officer would have an automatic right of appeal to the IRB, thus meeting the requirements of the Singh decision. Let’s recognize that the current refugee determination system is broken and build a new one with the capacity to handle the volumes Canada is facing, and will face in the future.