PROPOSED REGULATIONS MADE UNDER THE IMMIGRATION AND REFUGEE PROTECTION ACT
CANADIAN COUNCIL FOR REFUGEES SUBMISSION TO THE STANDING COMMITTEE
ON CITIZENSHIP AND IMMIGRATION
24 January 2002
PROPOSED REGULATIONS MADE UNDER THE IMMIGRATION AND REFUGEE PROTECTION ACT
CANADIAN COUNCIL FOR REFUGEES SUBMISSION TO THE STANDING COMMITTEE
ON CITIZENSHIP AND IMMIGRATION
24 January 2002
Introduction
The Canadian Council for Refugees is an umbrella organization made
up of about 170 member organizations from across Canada. Our mission
is to promote the protection of refugees in Canada and around the world
and the settlement of refugees and immigrants in Canada.
The CCR welcomes the opportunity to comment on the Immigration and Refugee Protection Regulations published in the Canada Gazette, Part I, on 15 December 2001. The regulations are extensive and we have numerous concerns about many areas of the regulations. What follows are some of our key concerns.
Detention of Children
The new Act extends the already very broad powers of immigration officials
to detain people. A particular concern relates to the detention of
minors, which has started to be a common phenomenon in Canada’s immigration
detention centres. The proposed regulations do not fulfill the promise
of the Act to make detention of minors a measure of last resort.
On the contrary, the factors listed seem to suggest that if there are adequate
detention facilities and services, minors can be detained. The CCR
urges that the regulations be amended to clearly state that minors will
never be detained on the basis of identity alone since it can never be
in the best interests of a child to be detained because of questions of
identity. Furthermore, the CCR is very concerned that the regulations
promote the detention of minors suspected of being controlled by smugglers
or traffickers (256(c)). This is completely unacceptable. Detention
cannot be used as a form of protection. If there are protection concerns
for minors as a result of traffickers, “safe houses” should be used instead.
Permanent Resident Card
Immigrants applying to renew their permanent resident card are to be
subjected to excessive and intrusive demands for information. The
permanent resident card, like a passport, is a document attesting to status
and information asked for should be no more than is required to establish
that the applicant has that status. It is fair to ask applicants
whether they have been in Canada sufficient time to have kept their permanent
resident status, but what business does the government have asking people
who their employers were or where they went to school over the past five
years? Permanent residents, like citizens, will need to have a guarantor,
but permanent residents are also going to be required to provide the names
and contact information of two people that know the applicant. What
kinds of questions is the government proposing to ask these references?
What will the government do with the information it collects?
The CCR is concerned that the proposed regulations on the permanent resident card represent an intrusion into the private lives of permanent residents. The proposal is discriminatory in that permanent residents are being required to submit far more personal information than citizens applying for a passport. The implication is that the government believes that immigrants are suspect.
Refugee resettlement: successful establishment
Refugee resettlement is all about protecting refugees. Yet, under
the regulations, most refugees applying to resettle to Canada need to show
not only that they need protection, but also that they can successfully
establish themselves in Canada. This means that refugees are chosen
on both protection and immigration criteria. The successful establishment
test discriminates against women since they often have fewer opportunities
for education and work experience. We note that the government is
moving towards objective criteria for assessing skilled workers, since
the old criteria were too subjective and ineffective. But at the
same time it is proposing that we retain the subjective successful establishment
test for refugees. Maintaining the successful establishment requirement
will perpetuate the belief that the overseas system for refugee selection
is unfair and not fundamentally about refugee protection. Canada
is the only country to apply such criteria to refugees being resettled.
The proposed regulations reword the successful establishment criterion
and exempt urgent and vulnerable cases. The CCR calls on the government
to scrap it entirely instead.
Refugee resettlement: Length of sponsorships
An important and distinctive part of Canada’s response to refugees
is the private sponsorship program, through which groups such as faith
communities and ethnocultural groups commit themselves and their resources
to resettling refugees to Canada. Currently, the usual length of
sponsorships, during which the sponsoring group continues to be responsible
for the refugee family, is one year with provision for up to two years
in special cases. The regulations will increase the maximum length
of sponsorship from two years to three years. A sponsorship of a
year is a significant undertaking for a group, since it means responding
to the various needs, including financial, of the family. Sponsorships
of three years will be beyond the capacity of most groups. The effect
of asking for three year sponsorships will be to reduce the number of refugees
that can be offered a home in Canada. The CCR urges that the maximum
length of sponsorship remain two years.
Refugee resettlement: Barriers to private sponsorship
In addition to the proposed increase in the maximum length of sponsorships,
the regulations contain other measures that penalize private sponsors and
undermine the partnership relationship between the government and the sponsoring
community. The CCR looks to the government to support and promote
the work of caring Canadians who through their own initiative increase
Canada’s capacity to offer refugees a home. Yet the regulations introduce
new barriers. Sponsorship agreement holders are to be required to
submit a settlement plan for each refugee they apply to sponsor, a new
measure that has not been agreed to by sponsors. In addition, the
regulations exclude from sponsorship an individual or group who has ever
defaulted on a sponsorship. There is no process established for determining
whether a default has occurred, which raises concerns that groups may be
found to have defaulted without being given a fair chance to defend themselves.
A further concern is that the bar on sponsorship appears to be perpetual.
Any organization can make a mistake: one mistake should not bar the organization
from future sponsorship without any hope of rehabilitation.
Refugees in limbo
There has been a longstanding problem of “refugees in limbo”, that
is refugees in Canada who have been recognized as needing Canada’s protection
but who suffer long delays in getting their permanent residence.
This problem has caused enormous suffering for thousands of refugees and
their families. Refugees in limbo can’t move on with their lives
and are often marginalized socially and economically, leading to problems
with the provinces which can’t easily classify them, yet have to respond
to them.
The proposed regulations do little to address the situation, and in fact create a new category of refugees in limbo (refugees who are inadmissible on health grounds (38(1)(a) and (b) of the Act). The CCR urges a simple solution to the problem: protected persons should be granted automatic permanent residence by operation of law. The tiny minority of cases where the government has concerns could then be addressed through proceedings to remove permanent residence. Refugee claimants now undergo a security check on arrival so people who endanger Canada’s security will have been identified before obtaining refugee status. Furthermore, the new Act provides that those whose refugee status is vacated lose their permanent residence status automatically. Therefore, if the government discovers that someone has fraudulently obtained refugee status there is only a one-step process to make the person removable, whether the person has permanent resident status or not.
By giving refugees automatic permanent residence, the government would ensure that the innocent majority of refugees would not be penalized for the sake of the handful of individuals who may have abused the system.
Inadmissibility classes: exemptions where presence would not be detrimental
to the national interest
The Act contains a number of very broad categories for inadmissibility
on the basis of security, human rights violations and organized criminality.
The government has argued that the categories should be broad because they
want to be sure that they cover all undesirable people. Because they
are broad the categories also catch people who are not undesirable: these
people are supposed to be exempted by provisions in the Act which allow
the Minister to decide that their presence in Canada would not be detrimental
to the national interest. For example, the Act states that all past
or current members of organizations that have engaged in terrorism are
inadmissible to Canada. This means that all past or current members
of the African National Congress, the ruling party in South Africa, are
inadmissible to Canada. They can however be exempted. The problem
is that there is no mechanism for applying to the Minister for an exemption,
or for ensuring that applications are dealt with in a fair manner.
Experience to date shows us that the effect of having no mechanism is that
people don’t get heard and remain inadmissible even though there is no
reason to think that their presence in Canada is in any way detrimental
to the national interest.
The CCR urges that the regulations be amended to create a mechanism to ensure that a person can apply for ministerial relief and be given a fair hearing.
Bar to family reunification for those on social assistance
The proposed regulations bar sponsorship for persons in receipt of
social assistance other than for reasons of disability (130)(1)(l): this
will deny people their basic right to family unity on the basis of their
economic situation. If this proposal is brought into effect, spouses
and common-law partners will be kept separated simply because they cannot
find employment. Children will be denied their basic right to be with their
parents because of their parent’s economic situation. The measure discriminates
more against woman than men, given the higher levels of poverty among women.
Family reunification can actually assist persons to get off social assistance
through improved support from new family members such as emotional support,
employment, assisting with child care or other resources that the sponsored
family member would bring. Barring family reunification in these circumstances
may actually mean that the person stays on welfare much longer.
The CCR urges that this provision be eliminated.
Length of sponsorship of children extended up to 22 years
The proposed regulations lengthen the duration of sponsorship for children
from 10 years to 10 years or age of 22. This means that a young adult
who was sponsored at the age of six months and who has been a citizen since
the age of four is still sponsored twenty years after arrival in Canada
and at age of 20 cannot have recourse to social assistance.
In the interests of promoting integration and healthy family relationships, the length of the sponsorship should be reduced, not lengthened, for sponsored children. Young people growing up in Canada need to know that they are fully accepted as members of society. A prolonged link of dependency on their parents because of their arrival in Canada as an immigrant sends a message that they are not full members of Canadian society, even long after they have become citizens. It also puts an additional strain on what is in any case often a stressful relationship between adolescent and parent.
The CCR urges that the length of sponsorship for children be reduced to 3 years in line with the proposal for spouses/common law partners. In the alternative, the maximum length should at least be maintained at 10 years.