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
“[R]efugees must be able to have their claim for protection heard by a decision-making body that is independent from political pressures and public hostility towards asylum seekers and refugees. The Canadian model of independent decision-making is one that is well respected internationally and recognised as a model of good practice.” Gemma Juma, British Refugee Council

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.


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1. Home Office, Control of Immigration: Quarterly Statistical Summary, United Kingdom - First Quarter 2009, and Supplementary excel tables,  Australia also has a first instance decision made by a civil servant, followed by an appeal to a tribunal.  In 2007-08, the set-aside rate of appeals at the Refugee Review Tribunal was 18%, down from 30% in 2005-06, but rates for certain countries were much higher (e.g. 31% for Sri Lanka and 47% for Nepal).  Migration Review Tribunal and Refugee Review Tribunal, Annual Report, 2007-2008, Table 4.8,

2. UNHCR, Quality Initiative Project, Fifth report, June 2008, for period February 2007 – March 2008, par. 2.4,

3. Ibid., par. 2.3.

4. UNHCR, Quality Initiative Project, Sixth report, April 2009, for period April 2008 – March 2009, chapter 3, Conclusions,    This report focuses on child claimants and finds inadequate attention is paid to child-specific factors in assessing claims made by children.  The National Audit Office also pointed to problems in the quality of first instance decision-making, finding that “whilst audits may show the need for improvements in some areas of decision making, the Agency does not follow up these findings to identify and reverse incorrect decisions.”  National Audit Office, Management of Asylum Applications by the UK Border Agency, January 2009, par. 6 (g),

5. This is certainly the case with Citizenship and Immigration Canada officers who currently make Pre-Removal Risk Assessments, which requires making refugee determinations.

6. For concerns about training of Pre-Removal Risk Officers, see Report of the House of Commons Standing Committee on Citizenship and Immigration,  Safeguarding Asylum - Sustaining Canada's Commitments to Refugees, May 2007.

7. Asylum Matters, par. 7.2.3,  supra.

8. Ibid.