Beyond Balance: Refugees and Disruption

As of mid-2024, over 122 million people — 1 in 70 globally — were displaced due to persecution, conflict, violence, human rights violations, or events disturbing public order. 65% originate from just four countries: Syria, Venezuela, Ukraine and Afghanistan. These figures continue a twelve-year trend of rising displacement, and as observed by UN High Commissioner for Refugees Filippo Grandi in 2024, “Behind these stark and rising numbers lie countless human tragedies.” Government data shows that as of December 2024, Canada’s pending (backlogged) refugee claims rose to over 273,000, while the United States exceeded 1.4M.

At the heart of the displacement crisis lies a fundamental challenge — efficiently adjudicating unprecedented numbers of claims without sacrificing procedural fairness and substantive rights. The refugee crisis embodies the principle that “justice delayed is justice denied.” Yet, how can we expedite cases without undermining justice? The global legal community is watching closely as the balance struck in refugee law on this eternal, wicked problem, may help inform justice systems generally.

The EU's response to Ukraine under the Temporary Protection Directive demonstrated how flexible legal frameworks can provide rapid refuge. The Global Compact on Refugees, affirmed by the UN in 2018, establishes a framework for equitable responsibility-sharing with four objectives: easing pressures on host countries, enhancing refugee self-reliance, expanding third-country solutions and supporting conditions for safe return. The Compact represents a shift toward co-ordinated international action. Early implementation has shown promise in countries like Colombia, which has integrated 1.8 million Venezuelans through regularization programs, and in Ethiopia, where refugees gained increased rights to work and access services through new legislation aligned with Compact principles.

In refugee law, definitions and criteria determining who qualifies for protection increasingly drives the design of procedural frameworks for deciding claims — prima facie refugee recognition may be granted to those fleeing certain conflicts, essentially blending substantive presumptions with procedural shortcuts. In practice, this means that judgments about who is a refugee are influencing how we decide their cases. For instance, many jurisdictions have created fast-track procedures for claims presumed to be manifestly unfounded or for persons from countries deemed “safe.” Such designations directly shape the procedural path of an application, often limiting the depth of review or available appeals. Yet these approaches inherently raise procedural fairness concerns.

A case-in-point is Canada’s now-abandoned Designated Country of Origin regime, which expedited processing and limited appeals for claimants from countries whose situations were deemed unlikely to result in refugees. This system was largely dismantled by court decisions that reinforced Canada's international obligation to individually assess refugee claims, and highlighted how courts can act as a safeguard to fairness when a drive for procedural efficiency stands to erode rights.

While these procedural approaches often prioritize efficiency by categorizing claims based on substantive criteria, the relationship between substance and procedure is more nuanced than a simple trade-off — sometimes a lack of procedure can frustrate substantive justice. Access to legal counsel is uneven, for example, and language barriers can prevent claimants from fully telling their stories. Some countries, including Canada, are experimenting with remote or automated decision-making tools to handle the volume of claims. Remote adjudication through video conferencing can expedite proceedings but may disadvantage applicants with limited resources or those in detention. Artificial intelligence systems are being explored to analyze patterns, support decision-making in refugee claims, and reduce subjective biases among adjudicators. However, these technologies raise significant concerns about transparency, algorithmic bias, and the right to a meaningful hearing. Critics warn that AI might oversimplify complex human situations, perpetuate biases present in historical data, and lack transparency that hinders accountability and an applicant's ability to challenge decisions.

The CBA and other advocacy organizations continue to champion principles of fairness in refugee claim processing. CBABC’s Immigration Law Section has pressed for improvements to refugee procedures to make them not only faster but fairer. When the Immigration and Refugee Board of Canada introduced expedited hearings and began contemplating AI use, CBA and CBABC urged clear and transparent criteria, independent oversight, and accessible appeals as safeguards to fairness. These recommendations aim to ensure that even as we innovate procedurally, a refugee claimant’s right to a full and fair consideration is not lost.

These advocacy efforts reflect a broader principle — the interplay of substantive and procedural law. This is not unique to refugee law, and parallels exist across the legal spectrum. In criminal justice, unreasonable delay might result in a prosecution being dismissed (e.g., R. v. Jordan, 2016 SCC 27). In administrative law, the nature of what is reasonable for an administrative decision-maker “takes its colour from the context” (see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para 89).

Fundamental principles of natural justice — the right to be heard and the right to an impartial decision-maker — remain the cornerstone of refugee adjudication. Different jurisdictions handle these principles with varying rigor. Canada’s refugee determination model, via the Immigration and Refugee Board, is often cited as one that builds in strong procedural guarantees: independent tribunal members, oral hearings for most claimants and general access to an appeal on the merits. Canadian courts have been vigilant in guarding these standards. As noted, when past policies tried to shortcut the process at the expense of fairness, the courts intervened. The landmark case of Singh v. Canada, [1985] 1 S.C.R. 177 recognized refugee claimants are entitled to fundamental justice under the Charter, effectively constitutionalizing oral hearings and other safeguards in the determination process. In other words, substantive rights necessitate procedural protections.

Procedural justice in refugee law is more than a technical necessity — it is a reflection of our legal system's integrity and humanity. As the global community grapples with the largest displacement crisis in modern history, the role of law in managing refugee claims will continue to evolve. We face the dual challenge of avoiding both justice delayed and justice diluted. Each refugee's case is a human story seeking a fair hearing. The challenge for lawyers, lawmakers and judges is to ensure that even amid unprecedented numbers, those stories are heard with the justice and dignity they deserve.