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Ever since it was created in 1989, the Immigration and Refugee Board and the refugee determination system that it administers has been a work in progress. Successive governments have tinkered with the system – reducing the number of Board Members hearing individual claims from two to one, designating so called safe countries, expediting straightforward claims and then cancelling the expedited program, etc. In December 2012 the rules of the game changed dramatically again with mandatory time frames requiring new refugee claims to be heard within sixty days. Claims made prior to December 2012 and not yet heard became known as “legacy” claims, as opposed to backlog claims, lest the government be accused of creating a new refugee backlog. The Harper government’s plan was to hear the remaining legacy claims until the legacy/backlog was cleared. However for the last couple of years legacy claims are simply not being scheduled. To date some 6500 legacy claimants live in a world of anxiety and uncertainty with no assurance when, if ever, their refugee claims will be heard.

In its 2016-17 Report on Plans and Priorities, the Refugee Board acknowledged that a spike in new claims meant that “commitments made by the Board in relation to the remaining 6500 legacy claims will have to be revisited unless additional temporary funding is made available.” The Refugee Board is projecting 20,000 new claims this year, almost double the 10,536 claims made in 2013, the first year under the new rules. With new claims subject to legislated priority scheduling, legacy claimants can see no path forward to finally having their day in court.

Credibility and the ability to accurately recollect past events lies at the crux of every refugee claim. Even if all 6500 legacy cases could somehow be scheduled for hearings in 2017 – these claimants would be testifying about events that took place in their country in the years prior to December 2012. In other words incidents of persecution that claimants would like to forget, and which happened some five, six and seven years ago would have to be recounted with precision, failing which their claim could be denied for lack of credibility. With every passing day, the memories of legacy claimants fade along with their ability to present their clams as accurately as possible.

It is true that these legacy claimants having safely reached Canada’s shores are out of harm’s way. But the family members they have left behind are not, and agents of persecution routinely target remaining immediate family members who cannot join the principal claimant in Canada until their claim has been heard and accepted.

Moreover legacy claimants languish in terms of personal development. Young people cannot access post-secondary education as tuition fees for non-permanent residents are prohibitive. Employers in a competitive market will not take a chance in promoting and training legacy claimants with uncertain immigration status. Excluded from advancement, legacy claimants see themselves pushed to the margins of society. Marginalization leads to frustration and in a worst case scenario becomes a breeding ground for radicalization.

The passage of time has deprived legacy claimants who arrived in 2012 and prior years the right to a fair hearing if their claims will not be heard until 2017, 2018 and beyond. There are precedents in Canadian immigration history for dealing with refugee backlogs. When the Refugee Board was created in 1989 a parallel system was implemented to efficiently dispose of the backlog of pre-1989 claims. In the 1990’s during the breakup of the former Yugoslavia, claimants from that country were permitted to bypass their refugee hearings and apply directly for permanent residence. Later in the 1990’s another government initiative temporarily allowed failed refugee claimants who could demonstrate some establishment in Canada to become permanent residents. Similarly the Trudeau government should act now and allow legacy claimants to apply directly for permanent residence, perhaps after demonstrating some baseline establishment in Canada through employment or education history. It is a position supported by leading refugee advocates such as the Canadian Association of Refugee Lawyers, the Canadian Council for Refugees and the Refugee Lawyers Association of Ontario.

The legacy of “legacy” refugee claimants should be that the government eventually did the right thing and removed them from the eternal limbo they now find themselves in.


Max Berger is a native of Winnipeg, Manitoba and was educated at the University of Manitoba and York University. Mr. Berger is a graduate of Osgoode Hall Law School in Toronto, Canada. He has represented immigration clients from all corners of the world and in every area of immigration law.

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