Trading Rights For Efficiency: Why Bill C-12'S Restrictive Asylum Measures Will Likely Backfire

(MENAFN- The Conversation) Almost a year ago, Canadian voters elected a government that promised a fundamental shift toward pragmatism. Prime Minister Mark Carney's mandate was clear: achieve sustainable immigration levels and ensure that “government itself must become much more productive... by focusing on results over spending.”

But since Parliament passed Bill C-12 - the Strengthening Canada's Immigration System and Borders Act - the government is at risk of violating its own evidence-based pledge.

While others have rightly commented on the human rights concerns (and there are many) raised by this legislation - including those on the United Nations Human Rights Committee - the argument that sacrificing immigrants' rights will enhance administrative capacity is a bold claim worth investigating.

Controlling costs?

During House debates in February, the government argued that success should be measured by volume: a one-third reduction in new asylum claims. As Immigration Minister Lena Metlege Diab stated:

Despite the government's rhetoric about reducing the number of“unfounded” refugee claims, it's based on the flawed notion that the true source of inefficiency is the procedural rights of applicants. If this were actually true, scaling them back should speed up the procedures that allow officials to clear the backlog of claims. My research shows the opposite.

Learning from the Harper government

Canada has been here before. In 2012, Stephen Harper's Conservative government attempted similar reforms, specifically the Designated Countries of Origin (DCO) policy.

The rhetoric then was nearly identical to the rhetoric today: procedural restrictions would filter out“unfounded” claims made by applicants from“safe” countries and speed up the system.

Human rights concerns aside, did these deterrence policies meet their stated goal of making the system more efficient?

My SSHRC-funded study of 178,873 asylum claims filed between 2006 and 2017 - one of the largest independent analyses of the Canadian asylum system to date - reveals they did not.

As an expert witness cited in the Social Affairs, Science and Technology (SOCI) committee report on Bill C-12, I briefed the Senate on my study.

My research was based on a statistical analysis of asylum claims filed before and after the DCO policy came into effect (2006 to 2017) and interviews with immigration lawyers and adjudicators at the Immigration and Refugee Board (IRB) of Canada's Refugee Protection Division. To date, mine is one of the few academic studies examining what makes Canada's immigration procedures more or less efficient.

The Harper government rightly identified withdrawn and abandoned asylum claims as a key source of inefficiency. In my analysis, I found that these types of unfinished claims significantly contribute to application backlogs:

The DCO policy was designed, in fact, to make it harder for new applicants to file refugee applications in an attempt to speed up the adjudication of asylum claims.

Ironically, the DCO policy actually increased the likelihood that refugee applicants would withdraw their claims (by about 15 per cent).

The importance of legal counsel

Between 2006 and 2017, close to 90 per cent of asylum applicants had legal counsel. While safer conditions in source countries made applicants 25 per cent more likely to withdraw their claims, almost half abandoned their claims (about 46 per cent). Unrepresented applicants were most likely to withdraw their claims. Importantly, I also found that adding more adjudicators made little difference unless applicants had access to legal counsel.

Ethical and competent legal counsel also saves time and resources for board members in three ways.

First, lawyers informally pre-screen prospective refugee applicants and redirect those with weaker claims toward alternative routes to legal status. Second, in the hearing room, lawyers prepare applicants and summarize key parts of complex claims for busy adjudicators, regardless of whether the claim is accepted. Third, behind the scenes, the IRB's own in-house lawyers give adjudicators advice that improves decision-making and reduces the likelihood of costly litigation.

More than 80 per cent of the board members members interviewed in a similar study agreed that specialized counsel makes the process more efficient. Lawyers help ensure claims are hearing-ready and reduce the need for lengthy proceedings.

The right to face adjudicators (extended to immigrants by the Supreme Court in 1985), plus a well-developed immigration law sector, motivates immigrants and adjudicators to seek counsel. In this way, access to legal counsel helps immigrants and adjudicators navigate the immigration system more quickly and effectively.

A road map for systemic efficiency

In its review of Bill C-12, the Senate noted a “paucity of data” available to evaluate the impact of proposed immigration reforms. This gap offers the federal government a critical opportunity to apply its“results over spending” mandate to reduce the current backlog of asylum claims.

My research shows that efficient immigration procedures depend on strong procedural rights and access to counsel for migrants.

By undermining these requirements, the DCO policy created redundant cycles in which applicants were more likely to file claims quickly without legal representation, contributing to backlogs and increasing costly litigation.

Canada's asylum system relies on oral hearings and strong, front-end decision-making. By addressing migrant incentives and partnering with civil society, immigration processes can be both fair and efficient. In short, the evidence shows that rights and efficiency are not mutually exclusive - Canada can achieve both.

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