Immigration and Refugee Board Review – Terms of Reference

Context

In the context of Budget 2017, the Minister of Immigration, Refugees and Citizenship has been mandated to undertake an independent review of the Immigration and Refugee Board (IRB) of Canada to determine the possibilities for efficiencies and higher productivity. The review will be led by a third party expert with oversight by the IRB, Immigration, Refugees and Citizenship Canada (IRCC) and central agencies.

In addition to looking at efficiencies and productivity, the review is to include a review of the IRB’s mandate as it relates to governance, structure and associated accountability mechanisms. While the review will focus on the IRB, it should also consider the asylum system as a whole, as well as approaches taken by other countries and international best practices.

To support this outcome, a Final Report outlining the findings of the review, as well as recommendations for action is to be completed by early June 2018 at the latest. An Interim Report is also to be provided by mid-December 2017.

Background

The in-Canada asylum system (iCAS) supports a core part of Canada’s humanitarian tradition of offering protection to people who are displaced and persecuted. While IRCC is the overall steward of the system, it is delivered by multiple organizations, including the IRB, the Canada Border Services Agency (CBSA), Public Safety Canada and the Department of Justice.

The IRB is an independent administrative tribunal responsible for making decisions on immigration and refugee cases. The IRB has two divisions responsible for determining asylum cases and appeals, namely the Refugee Protection Division (RPD) and the Refugee Appeal Division (RAD).

The IRB also has two other divisions. The Immigration Division (ID) conducts admissibility hearings and detention reviews. The Immigration Appeal Division (IAD) decides appeals on certain immigration cases (e.g., family sponsorship applications, certain removal orders, applications based on meeting residency obligations and admissibility hearings).

In 2012, funding was provided to all departments responsible for delivering the asylum system to process 22,500 claims annually. However, based on its experience operating in the new system the IRB found that the funding provided only allows for the processing of approximately 14,500 claims annually, although through the pursuit of efficiencies and other measures the Board finalized 17,200 claims in 2016-17.

The volume of asylum claims fluctuates greatly from year to year, and has been steadily increasing since 2013. Delivery organizations in the asylum system are required to process all claims they receive. At current capacity levels, this rising intake contributes directly to an expanding backlog of waiting claims.

Objective

The objective of the review is to identify options and recommended approaches to achieving greater efficiencies and higher productivity with respect to the processing of asylum claims. Options and recommended approaches should also consider impacts on other IRB divisions and business lines, as deemed necessary.

Implementation of any recommendations stemming from this review will follow the submission of a Final Report and would be subject to Cabinet approval, as appropriate.

Key considerations

The review will take into account the legal framework within which the IRB operates, as articulated in the Immigration and Refugee Protection Act and in jurisprudence. The review of IRB efficiencies and productivity will be carried out in a manner that respects the institutional independence of the IRB and the independence of its members in decision-making under the current model. It will also explore alternate structural and governance models and approaches that could lead to possible efficiency gains while maintaining fairness.

Scope

The focus of the review will be mainly on the RPD of the IRB as it would appear to be facing capacity challenges that are not present in the other two IRB divisions. The RPD’s overall efficiency and effectiveness is instrumental to a well-functioning asylum system. The RPD is also the IRB’s largest division, representing approximately one third of IRB expenditures. To the extent that recommendations have an impact on IRB business other than the RPD, the review should also take into account the overall functioning of the IRB, including the RAD, ID and IAD, and may include internal services such as administrative support and accommodations for decision making.

While the review will be mainly focused on the IRB, given the current structure of the asylum system, recommendations could consider elements of the asylum process from intake through to decision-making, including the roles of other delivery organizations (whether within the current structure or through a different structure) and efficiencies to minimize federal delivery costs and costs for services to asylum claimants. Among other factors, this analysis will include a comparison of the first-level decision making and appeal processes at the IRB with both adjudicative and administrative models and best practices in other countries.

The review should address the following three questions:

1. How can the efficiency of the asylum system be improved in its current structure;
2. What elements of the IRB’s current structure could change in order to optimize efficiency and productivity while maintaining fairness? and
3. Should the review propose a different governance and accountability framework, how should this framework apply to the other divisions?

Assessment criteria

In carrying out the review, the Third Party Expert should consider the following criteria, amongst others as appropriate:

Effectiveness and Structure

• Analyze the governance structure and related accountabilities mechanisms, particularly as related to the asylum system (but not excluding other lines of business), from eligibility to decision-making, to identify any duplication between delivery partners and compare with international examples.
• Consider efficiencies and improvements that can be made within the existing legal and regulatory environment.
• Consider how current rules, regulations and legal requirements may constrain the IRB.
• Provide a comprehensive cost-benefit analysis of any new structure being proposed which specifically highlights any efficiency gains.

Productivity and Efficiency

• Analyze business processes including triage, scheduling of claims, case preparation, and length of hearings.
• Consider whether the use of hearing space, technology aids and tools is efficient and effective, as well as the feasibility of implementing innovative tools/platforms and case management strategies, as informed by international examples.
• Consider how current measures being implemented by the IRB may achieve greater efficiencies and how the IRB currently responds to fluctuating volumes.
• Consider whether the division of tasks between administrative support personnel and decision makers is appropriate.
• Consider how performance management can be leveraged to improve efficiency.

Roles and responsibilities

Third Party Expert

• Lead the review.
• Provide independent advice to the Minister of Immigration, Refugees and Citizenship.
• Report on progress directly to the Steering Committee.

Steering Committee

• The Steering Committee will provide oversight and guidance for the review, which includes overseeing the work of the Third Party Expert to ensure deliverables align with these Terms of Reference.

Independent Review Secretariat

• A small secretariat, led by an Executive, will be established to provide administrative support as well as collect and analyze information and support the drafting of the report, as directed by the Third Party Expert. The secretariat will also provide administrative support for the Steering Committee.

Central Agencies

• Central Agencies will review results to ensure that the information will meet Central Agency decision-making information requirements.

Treasury Board:

• The Treasury Board will review the results and recommendations brought forward by the Minister of Immigration, Refugees and Citizenship as appropriate.

Timelines and deliverables

Conclusions and recommendations generated by this review will be presented in Interim and Final Reports as outlined below.

Interim Report

The interim report should provide a summary of findings and recommendations based on the assessment criteria.

Due: December 15, 2017

Final Report

Building on the Interim report, the final report should provide detailed analysis, findings and recommendations related to the assessment criteria.

Due: June 1, 2018

Key activities

April – May 2017

• Establish Steering Committee and review Secretariat.
• Finalize Terms of Reference and/or Statement of Work.
• Select Third Party Expert

• Third Party Expert to begin work
• Initial briefing/meeting of Steering Committee and Third Party Expert.
• Assessment Framework (including methodology) presented to Steering Committee.

• Review is conducted
• Monthly meetings with the Steering Committee

• Interim Report provided to Steering Committee

• Receive Feedback from Steering Committee
• Prepare detailed Final Report

• Final Report is provided to Steering Committee