Identity Documents: Arguments and Counter-arguments

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IDENTITY DOCUMENTS: ARGUMENTS AND COUNTER-ARGUMENTS


On January 30, 1997 regulations came into force imposing a five year wait between the time an individual is found to be a refugee and the time they can obtain permanent residence for those who do not have "satisfactory" identity documents. This policy is creating significant hardship in the affected communities. Without permanent residence, families are torn apart, separated for six to ten years; there are major road blocks to higher education, professional training programs and bank loans for small businesses; jobs are difficult to get with temporary work permits.

Some argue that the hardship imposed on ten to fourteen thousand people, 80% of whom are women and children, is justified by other policy objectives. But the arguments made in favour of denying landing for five years do not support any clear policy objectives. The arguments are either illogical, lacking in factual basis or immoral.

The following pages respond to the usual arguments made in favour of imposing the five year wait.

"We cannot land them because we don't know who they are."

1. The refugee has gone before the IRB. A person who has been accepted as a refugee has gone through a determination process. They have gone before a tribunal (the Immigration and Refugee Board - IRB) and been found to be a refugee. The IRB decision-makers are specialized and trained to hear refugee cases. They have ample opportunity to question the refugee about their story, including their identity and to explore any doubts. The IRB takes the question of identity and ID documents seriously and has issued a "commentary" on the subject to guide decision-making.

Much has been made of the fact that the IRB makes a determination that the person is a refugee and does not make a legal determination as to the identity of the individual. The department of Citizenship and Immigration should accept as sufficient proof of identity the refugee determination as they did up until the Tories' 1993 Bill C-86. Refugee determination involves identity because the tribunal must have a sense of who the person is to find them a refugee.

2. Contradictions between CIC and the IRB It appears that CIC does not trust the quality of decision-making at the IRB. The regulatory impact statement itself goes so far as to say that not all of those accepted by the IRB are in fact genuine refugees. In other words, one public body rejects the work of another public body and seeks to regain control by refusing landing. This has all the appearances of an institutional power struggle.

3. Most refugees have some identity documents. As noted in the report of the Standing Committee, most accepted refugee claimants have some identity documents, but the documents have been deemed "unsatisfactory". The decision making is very inconsistent - between offices and between countries of origin. People have been refused when there was absolutely no question about their identity -- it was their documents which were unsatisfactory. (For example, a former member of the Somali olympic team had ID, magazine photos, etc and was still turned down as he had no passport.) The standard for what is satisfactory should be clear and should be reasonable. Requiring passports is unreasonable.

4. There is no logical connection between delays and identity. Waiting five years will do nothing to further establish personal identity. It is highly unlikely that public records will survive the wars in Somalia and Afghanistan. It is also highly unlikely that waiting five years will ferret out war criminals (have any of the Nazis in Canada been picked up for shoplifting?)

"If we don't have a very high standard of documentary proof of identity we run a security risk."

1. CIC has an opportunity to intervene on security questions. If the department of Citizenship and Immigration has any reason to suspect that the individual is a danger to Canada, they can and should intervene at the refugee hearing.

2. What evidence is there of a connection between ID and security? CIC has presented no evidence that the pre-Bill C-86 situation occasioned any security risks whatsoever. The high profile cases, like the Palestinian hijacker or the Rwandan accused of genocide, were processed overseas with ID documents.

3. "We cannot do police checks without identity documents." First, checks are not routinely done in the home countries of refugees -- so that the refugee's family is not put at risk. Criminality and security checks cannot be done in Somalia or Afghanistan because there is no government. When government returns it is doubtful that such records will have survived. Second, some checking could be done with the name of the individual and with finger-prints through Canadian authorities and interpol.

4. "What about war criminals?" No one is more concerned about war criminals than their victims. Jews are very concerned about Nazis. Somali refugees are very concerned about Somali war criminals and have consistently co-operated with CIC by identifying war criminals. There are mechanisms in Canadian law, which we believe should be strengthened, to deal with war criminals. Ironically because war criminals tend to be those in power, they often have genuine identity documents.

5. "What about common criminals?" If crimes are committed in Canada by permanent residents, then the person is ineligible for citizenship and could be deported for criminality. There are many safeguards in place to deal with non-Canadian born criminals. There is little difference between revoking residence and revoking refugee status.

"We have to protect the integrity of the system."

It is unclear what is meant by "integrity" and which system is being referred to. If the arrival of someone without a passport has a negative effect on the "integrity" of the system this can be interpreted in two ways: the integrity has been infringed because someone passed through Canada's interdiction measures or people who travel without "satisfactory" identity document are people without "integrity".

1. "Integrity", interdiction and ID. Canada has contradictory policy objectives of preventing people from making refugee claims and of upholding the Geneva Convention on Refugees. To prevent refugee claims the government introduces visa restrictions, fines transport companies, and places immigration control officers overseas. All of these interdiction measures are based on identity documents. The arrival of a claimant without satisfactory ID is a failure of the control system. It doesn't matter how genuine a claim may be or that we may be saving a life -- the arrival of someone without documents is a breach in the "integrity" of their border control.

2. False ID and individual integrity. People who travel on false ID are not people lacking in "integrity". There are many, many reasons why refugees cannot obtain passports. It is so much a part of the refugee experience that it is provided for in the Geneva Convention. Refugees cannot be punished for having made an illegal entry into the country in which they seek asylum (Art. 31). Some governments control ID as a means of controlling dissidents. Such governments may have exit controls or refuse to issue documents to dissidents or interpret the very act of applying for a passport as indication of treason or dissent. Some countries have no government at all which issues documents; other governments are so corrupt that huge bribes must be paid to obtain passports; other countries have little or no mail service and passports are only available in the capital.

3. The "integrity" of the refugee system or the immigration system? A refugee system is about human rights, its about persecution, it is about fleeing war-torn countries and human rights violations. Punishing people for not having ID in this context is senseless. CIC may think that they are protecting the "integrity" of the immigration system. In other words, they don't want people coming here and making refugee claims, only immigrants and refugees who have been selected by CIC officials overseas. But this ignores the fact that Canadian Visa offices are concentrated in Western Europe and the U.S. far from countries that produce refugees and the fact that refugees often must flee very quickly.

 

"We need to protect the system from abuse."

1. Is it "abuse" to arrive in Canada without a passport? No. That documents are unavailable is the unfortunate result of war and human rights abuses. We have a refugee determination system to separate out the genuine refugees from the rest.

2. Human smuggling is a growing criminal industry. Unscrupulous smugglers are a serious problem. But punishing their victims will not help. Desperate people are forced into the hands of smugglers because countries like Canada have built walls with interdiction measures. This issue is not being addressed by the imposition of a 5 year wait.

3. Refugee protection is always contentious because it involves offering protection to strangers. The very nature of "the right to seek and enjoy in other countries asylum from persecution" (Universal Declaration of Human Rights art. 14.1) involves ceding a little border control. By agreeing not to "refoule" people who fear persecution, Canada has agreed to let those people in. Genuine refugees have a right to stay in Canada. Some would prefer that Canada only select refugees from overseas. It is in the interest of all parties that Canada treat refugees who are here decently...unless Canada wants to withdraw from the Refugee Convention and close our door to the victims of war and human rights abuses.

"Landing people without documents encourages people to destroy the documents they travelled on."

1. There is no connection between documents at the port of entry interview and at landing. A person may have travelled with a document, shown it at the port of entry interview then find that it is insufficient for landing. Another person may arrive with no documents but get ID (through their embassy or through friends at home) by the time of their application for landing. Although Canadian authorities may find it distasteful, there are reasonable explanations why documents are destroyed. Refugees may fear that they will be in trouble for having travelled on false documents or believe that it is better to arrive with no documents than with false documents; they may fear that if they arrive with documents they will be immediately returned home - as sometimes happens in Europe; or they may have been threatened by a smuggler.

 

"Landing people without documents is a pull factor"

1. The old floodgates argument. This is an all-purpose argument against treating refugees fairly. It suggests that treating people decently is wrong because it may encourage others to come. But CIC has no statistical or anecdotal evidence that landing people without documents affects arrivals or acts as a pull-factor.

2. This is an immoral argument. What this implies is that genuine refugees should be discouraged from coming to Canada. The arrival of a genuine refugee is not a negative thing for Canada, for the world or for the refugee. Everyone gains when genuine refugees receive asylum and get on with their lives.

3. Deterrence by family separation is immoral. Making life so miserable in Canada that refugees would prefer to stay at home and face persecution or stay in horrible camp situations is immoral.

"We need to be fair, consistent and transparent."

1. Fair? What is fair about separating the families of convention refugees? What is fair about punishing people for coming from a country with no government? What is fair about punishing people who do not want to approach their embassy for fear that their family at home will be harassed? It has been suggested that landing people without "satisfactory" documents is unfair to those who have "played by the rules." This is absurd because it suggests that every refugee who comes to Canada has equal access to identity documents in their home country. Refugees fleeing situations with exit controls or fleeing countries without governments face different situations from those coming from countries where document can be obtained.

2. Consistent? What is consistent about the way the criteria of "satisfactory identity documents" is applied? Nothing. A few examples: - in Ottawa the ID requirement is routinely waived for minors whereas in Toronto whole families are refused landing because one young child (eg. 6 years old born in the camps) has no ID documents. - sometimes birth certificates, municipal ID or diplomas are accepted...sometimes the officer insists only a passport will suffice. - the immigration officers can be very capricious, for example, a woman's ID was refused because in the section for nickname on her ID document (in Somali language) it was marked "male". "Male" means not applicable in Somali, it doesn't mean that she is a man.

3. Transparent? How does this apply?

4. There is no/NO UNHCR approval. It is rumoured that CIC or the Minister's office have been claiming that the UNHCR supports the imposition of a five year waiting period. This is untrue.


Apr 1997