Many countries around the world have experimented with what Minister Kenney proposes: a quick first decision by an immigration officer, followed by an appeal to a tribunal.  What that often means is poor first decisions, many of which have to be overturned at appeal.

Canada has been taking another approach: investing in high quality first level decisions, by an independent tribunal, supported by good documentation.

Working to get the first decision right is the better way to make refugee determination fair and efficient.

The UK experience illustrates this well: of first instance decisions, made by officials of the UK Border Agency, a high percentage are overturned on appeal.  This adds to expenses, as well as undermining confidence in the system.  In 2007 and 2008, 23% of rejections appealed by failed asylum seekers were overturned, rising to 26% in the first quarter of 2009.  For some countries, the successful appeal rate is much higher: 56% for Zimbabweans and 40% for Somalis in the first quarter of 2009.1

Problems with the quality of first instance decision making has attracted the concern of the UNHCR, which has been running a Quality Initiative Project, in an attempt to address the shortcomings.  The UNHCR has repeatedly identified “very serious and significant concerns with the approach to credibility assessment.”2 In 2008, they found particular problems with decisions in the detained fast track: an incorrect approach to credibility assessment, a high prevalence of speculative arguments, a lack of focus on material elements of the claim, and some decision-makers demonstrating “a limited understanding of refugee law concepts.”3  A year later, the concerns persisted.4

Assigning refugee determination to immigration officers, rather than a tribunal like the Immigration and Refugee Board, is fundamentally problematic for a number of reasons, including:

• Immigration officers don’t have the necessary institutional independence.  As departmental employees, they are likely to be influenced by departmental objectives such as reducing the number of claimants.  Furthermore, since they ultimately report to the Minister, they may be biased by political considerations.
• In practice, immigration officers assigned to this level of decision-making are much more junior than those appointed to the Immigration and Refugee Board.5
• Immigration officers don’t have available to them the same level of training, legal services support and research and documentation, as provided to members of the Immigration and Refugee Board.6

Ironically, while Minister Kenney is looking to the UK for inspiration for the Canadian system, some in the UK are recommending that the UK overhaul its system on the model of the Canadian.  The Social Justice Centre recently reported that it was “very impressed with the Canadian asylum system where asylum decisions are made by independent highly trained ‘members.’”7  In making their proposal for a Canadian-inspired system, they argued that “greater investment and time at the beginning would ensure that a better quality of decision was being made, with fewer appeals, which will cost no more in the long term.”8

The Canadian refugee system has also been frequently praised by the UN High Commissioner for Refugees, and promoted as a model internationally.