The Budget as Border: Administrative Exclusion and Canada’s Migrant Protection Obligations

When refugee claimants face years-long waits and shrinking access to legal aid, the problem is often framed as administrative. This article by Sara Wilson argues that the real issue is a widening gap between Canada’s human rights commitments and the fiscal choices that shape migration governance.

Sara Wilson is a Ph.D. student at Simon Fraser University and is currently completing a Graduate Diploma in Civil Law at the University of Ottawa. Her research focuses on the intersection of human rights, communication systems, and systemic inequality. Professionally, Sara serves as Chair of the Vancouver Island Human Rights Coalition and as a board member of Autism BC. With more than 15 years of experience in policy and governance, her work explores how institutional structures and the bureaucracies of empathy shape outcomes for marginalized communities.

My son is autistic. Accessing services for him in rural British Columbia has meant years of waitlists, missed assessments, and conversations with administrators who were genuinely sorry but couldn’t do anything about it. The system wasn’t cruel. It was just built for someone else. At some point I stopped being surprised by the gaps and started asking a different question: who decided they were acceptable? The answer, almost every time, was the same. Someone had, somewhere, in a budget.

I kept finding that same answer in very different places. In Canada, legal aid for refugee claimants is delivered by provinces but partially funded by the federal government through bilateral transfer agreements. The federal share has never been structured to scale automatically with claim volumes. When refugee claims reached a record 144,000 in 2023 (Immigration, Refugees and Citizenship Canada, 2024), that mismatch became a crisis. Provinces quietly tightened eligibility. Waitlists grew. Refugee claimants with complex cases appeared before IRB adjudicators alone. No minister stood up and announced this as a policy choice. It accumulated in the gap between what the transfer formula funded and what international human rights law requires.

That gap has a name. I want to call it what it is: a failure to realize the rights guaranteed under Articles 1, 2, 7, and 25 of the Universal Declaration of Human Rights. Article 1 declares that all human beings are born free and equal in dignity and rights. Article 2 prohibits discrimination in the enjoyment of those rights on any ground, including national origin and migration status. Article 7 guarantees equal protection of the law. Article 25 protects the right to a standard of living adequate for health and well-being. These are not aspirational principles. They are the normative floor against which Canada’s migration governance must be measured. And when measured honestly, the commitment gap is hard to defend.

Who Designed This, and For Whom?

John Rawls, an American moral, legal, and political philosopher, asked us to imagine designing a society from behind a “veil of ignorance”: a position in which you don’t know where you will land in it. You don’t know if you’ll be a citizen or a refugee, a native speaker or someone communicating through an interpreter, neurotypical or neurodivergent, housed or precarious. Rawls argued that rational people designing from this position would protect the most vulnerable, because they can’t assume they won’t be among them (Rawls, 1971).

I think about this often. No one designing Canada’s asylum system from behind that veil would build what we have. They would not create an IRB with a backlog of over 250,000 pending claims as of late 2024, projected to approach 300,000 by 2025, where 80% of claimants wait 20 to 24 months for a hearing (C. D. Howe Institute, 2024). They would not design a legal aid formula that hasn’t kept pace with claim volumes, effectively means-testing the right to a fair hearing guaranteed under Article 7 of the Canadian Charter. They would not build a system that functions smoothly for the straightforward case and quietly falls apart for everyone else.

But that is the system we have. And we built it, in Rawlsian terms, from behind a very different kind of veil: one that keeps the consequences of budget decisions invisible to the people who make them. A legal aid transfer is a line item. The refugee claimant who loses their case for want of a lawyer is not in the room when that line item is set. Neither, usually, is a parent from rural BC waiting two years for an autism assessment.

The Budget Is the Real Border

A mission statement describes what a system hopes to achieve. A budget reveals what it has decided it can afford. For a migrant seeking asylum, the border is not only a geographic line or a legal threshold. It is the financial architecture that determines how much legal aid exists, how long processing takes, and whether someone with complex needs can meaningfully participate in a hearing at all.

Systems like this are built around an assumed user. In Canada’s refugee determination process, that user is emotionally regulated, communicates in expected patterns, and moves through the process in linear increments. The IRB has Chairperson’s Guidelines designed to address claimants who don’t fit that template: Guideline 8, replaced in October 2023 with a dedicated accessibility guideline, provides for procedural accommodations, and Guidelines 3, 4, and 9 speak to vulnerable persons, gender, and sexual orientation and gender identity respectively. But a guideline is only as useful as the capacity to invoke it. An unrepresented claimant, unfamiliar with IRB procedure, communicating through an interpreter, managing trauma, does not reliably know these accommodations exist, let alone how to request them. When accommodation remains discretionary and dependent on self-advocacy, it functions as a formal protection that quietly fails the people who need it most. The divergent claimant still becomes a “complex case,” a burden on limited resources, a risk to processing efficiency. The burden of adjustment still falls on the individual. The architecture stays intact.

I recognize this dynamic. It is the same one my son encounters every time a service was designed for a different child, and he is asked to fit it anyway. The gap between what the system promises and what it delivers is not a malfunction. It is a feature of systems that were never designed with him, or with the most vulnerable refugee claimant, in mind.

Applying a Human Rights-Based Approach

International human rights law doesn’t simply prohibit discrimination. It requires states to actively realize rights through deliberate, targeted, and adequately resourced measures. The UN Development Group’s Common Understanding is clear on this: programs that only incidentally benefit human rights don’t satisfy the standard. Policy must be normatively and operationally directed toward rights fulfillment (UNDG, 2003).

A useful framework for applying this standard is PANET, which evaluates governance through five lenses: Participation, Accountability, Non-discrimination, Empowerment, and Legality (Packer & Balan, 2020). Each one reveals a distinct failure in how Canada currently governs migration.

On Participation: refugee claimants had no seat at the table when legal aid transfer formulas were designed or when IRB capacity decisions were made. They are treated as beneficiaries of a system, not as rights-holders with a stake in its design.

On Accountability: the burden currently runs entirely the wrong way. At present, government is under no obligation to demonstrate that its legal aid funding actually enables the fair process the law guarantees. The individual bears the burden of navigating an under-resourced system, while the state need not justify its allocations against rights outcomes. A rights-based model would reverse that. The government would be required to demonstrate, at each budget cycle, that its funding decisions are consistent with Articles 1, 2, 7, and 25 of the UDHR and are producing substantively equal outcomes across claimant populations.

On Non-discrimination: the Ontario Human Rights Commission has emphasized that formal program eligibility is insufficient where structural barriers compound each other (OHRC, 2023). An unrepresented refugee claimant who is also a trauma survivor, a non-English speaker, and a parent of a child with complex needs does not face one barrier. They face an accumulation. And the recognized grounds are already there: disability, national or ethnic origin, family status. The system’s response to that accumulation, longer waits, fewer services, less flexibility, multiplies the disadvantage rather than addressing it. That is adverse-effect discrimination on grounds Canadian human rights law has long recognized, operating below the threshold of anyone’s stated intent.

On Empowerment: Article 25 of the UDHR is not satisfied by a hearing date. It requires a standard of living adequate for well-being. A system that processes claims across years of enforced precarity, with restricted work authorization and housing instability, fails this standard regardless of its procedural fairness.

On Legality: Canada has ratified the binding instruments that give these rights legal force: the International Covenant on Civil and Political Rights, acceded to in 1976, and the 1951 Refugee Convention and its 1967 Protocol, acceded to in 1969. The UDHR, while not itself a binding treaty, provides the normative framework against which those commitments are measured. The question is whether domestic fiscal frameworks are treated as constrained by those obligations, or whether international commitments are absorbed into mission statements while budgets proceed on their own logic.

Redrawing the Map

We cannot administer our international obligations with spreadsheets. A budget is a moral document. It is a map of who we have decided matters. If Canada’s migration system claims to uphold the Refugee Convention and its UDHR commitments while quietly defunding the conditions that make those commitments real, it is not failing. It is succeeding at exactly what it was built to do.

What I have learned from navigating systems with my son is that the gap between what an institution promises and what it delivers is rarely accidental. It is the accumulated result of decisions made by people who were not designing for us. The fix is not just more funding, though funding matters. It is redesigning from the other direction: starting with the people the system currently fails and building outward from there. In Rawlsian terms, designing as though we might be them. In human rights terms, treating their dignity as the floor, not the aspiration.

Until fiscal decisions are tested against the rights of the people they affect, the commitment gap will remain an administrative border. And our institutions will keep apologizing for the past while quietly building the conditions to repeat it.

References

C. D. Howe Institute. (2024). Canada’s hidden asylum-policy problem: Backlog projections and system capacity. C. D. Howe Institute Commentary.

Immigration, Refugees and Citizenship Canada. (2024). Asylum claimants processed by year. Government of Canada. https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/asylum-claims.html

Ontario Human Rights Commission. (2023). Human rights-based approach to program and policy development.

Packer, J., & Balan, S. (2020, July 27). A genuine human rights-based approach for our post-pandemic future. OpenGlobalRights.

Rawls, J. (1971). A theory of justice. Harvard University Press.

United Nations General Assembly. (1951). Convention relating to the status of refugees. United Nations Treaty Series, 189, 137. (Canada accession 1969; 1967 Protocol acceded 1969)

United Nations Development Group. (2003). The human rights-based approach to development cooperation: Towards a common understanding among UN agencies.

United Nations General Assembly. (1948). Universal declaration of human rights.

United Nations General Assembly. (1966). International covenant on civil and political rights. United Nations Treaty Series, 999, 171. (Canada accession 1976)