Lifting of moratoria to Haiti and Zimbabwe: practical information for affected persons

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Summary

On December 1, 2014, the Canadian government lifted the moratoria on removals to Haiti and Zimbabwe. The federal government has put in place some special measures for affected persons:

  • Haitian or Zimbabwean refugee claimants whose claim was refused before 1st December 2014 will have until 1st June 2015 to submit an application on humanitarian and compassionate grounds. 

  • Haitian or Zimbabwean refugee claimants whose claim was pending on 1st December 2014 and whose application is thereafter refused will have six months from the date of their negative decision to submit an application on humanitarian and compassionate grounds.

If after the six month period, no H&C application has been submitted, the person could be called in for removal.

 

Lifting of moratoria to Haiti and Zimbabwe: practical information for affected persons

On December 1, 2014, the Canadian government lifted the moratoria on removals to Haiti and Zimbabwe. This means that Haitian and Zimbabwean nationals could face deportation, if they do not obtain legal status in Canada.

At the same time the government put in place some special measures for affected Haitians and Zimbabweans.

Who is affected by the special measures?

Haitians and Zimbabweans who:

  • Were in Canada on December 1, 2014.
  • Do not have permanent residence in Canada.
  • Had made a refugee claim before December 1, 2014 OR were benefitting from the Haiti Special Measures (introduced to respond to the 2010 earthquake).
  • Are not inadmissible to Canada on criminal or certain other grounds.

What are the new special measures?

Persons covered by the new special measures:

  • Have six months to apply for permanent residence on humanitarian and compassionate (H&C) grounds. They will not be deported during those six months.
  • If they apply for H&C, they cannot face any removal proceeding nor be deported from Canada while awaiting the decision on their H&C application.

In the meantime, those covered are eligible for:

  • A work permit
  • Interim Federal Health Program (if they were eligible before 1 December 2014).

When does the 6 month period begin?

For Haitians and Zimbabweans whose refugee claim was rejected before December 1, 2014, and for Haitians benefitting from the Haiti Special Measures:

  • The 6 month period to apply for H&C begins 1 December 2014 and ends 1 June 2015.

The government estimates that there are approximately 3,500 persons affected (3,200 from Haiti and 300 from Zimbabwe).

For Haitians and Zimbabweans who were in the refugee claim process on December 1, 2014, and whose refugee claim is subsequently rejected:

  • The 6 month period to apply for H&C begins on the date of the rejection by the Refugee Protection Division of their refugee claim.

For example, if a person receives a negative decision from the Refugee Protection Division on 1 March 2015, they will have until 1 September 2015 to apply for H&C. They cannot apply for H&C while their refugee claim is still before the Refugee Protection Division.

(There were 259 Haitian and Zimbabwean claims pending on 30 November 2014, but not all of them will have their claim rejected).

Applying for H&C

To apply for H&C, affected persons need to:

Making an H&C application is complicated and challenging. It is recommended that applicants be assisted by experienced lawyers. If the forms are not correctly filled out, the application may be rejected as incomplete. If the arguments for H&C grounds are not fully presented, the application may be rejected even though there are strong humanitarian grounds.

People who were living in Quebec on 1 December 2014 will also have their case reviewed by the Quebec government. There is an additional form to be completed for Quebec: Demande d’examen de parcours http://www.immigration-quebec.gouv.qc.ca/publications/fr/dcs/A-0523-IF-dyn.pdf.

Spread the word!

The government will not contact individually the affected Haitians and Zimbabweans to let them know about the measures. Some of the affected people have been in Canada for many years and may have moved to a different region of Canada and lost contact with their lawyer or organizations that support newcomers.

It is therefore very important to spread the word that Haitian or Zimbabwean refugee claimants whose claim was refused before 1st December 2014 have until 1st June 2015 to submit an application on humanitarian and compassionate grounds. 

If after the six month period, no H&C application has been submitted, the person could be called in for removal.

Resources

Country condition resources

The following resources may be useful in developing H&C submissions: 

Seeking assistance

For people living in Quebec, the Quebec government has identified five organizations to help affected persons. The organizations will be available to support them as they go through the procedures, answering their questions and helping them with their case. The organizations are :

People in the Windsor region can seek help from the Diocese of London Ministry to Refugee Claimants, (519) 256-0506.

For francophones in Toronto: Centre francophone de Toronto, (416) 922-2672 (ext 300 - clinique juridique).

In Hamilton, the Hamilton Community Legal Clinic wil assist. Contacts: Melissa Loizou  and Halima Habbal.

In Ottawa, people can seek advice from Community Legal Services Ottawa Centre, (613) 241-7008

FREQUENTLY ASKED QUESTIONS

  • I already made an H&C application that was rejected before 1 December 2014. Can I make another H&C application?

Yes, you can make another H&C application, even if you made one or more previously. You should show your lawyer the reasons for your refusal (if you have them – if not the lawyer can obtain them) as well as all the documents that were submitted in your previous H&C application(s), so that your lawyer can see what extra information needs to be added. Even if you have been refused in the past, there may be new information or information that wasn’t previously submitted which might lead to a positive decision.

  • I already submitted an H&C application before 1 December 2014 and I have not yet received an answer. What should I do?

You do not need to do anything to benefit from the stay of removal. You will not be removed while your H&C application is being reviewed. However, you should consult a lawyer to see if any more information should be added to your application. This is particularly important if you submitted your application without the assistance of a lawyer.

If you were living in Quebec on 1 December 2014, you must submit an additional form so that the Quebec government can also review your case: Demande d’examen de parcours http://www.immigration-quebec.gouv.qc.ca/publications/fr/dcs/A-0523-IF-dyn.pdf. We expect that Citizenship and Immigration Canada will write to you to let you know about this additional form to complete.

  • My refugee claim was rejected but I am appealing it (at the Refugee Appeal Division or at the Federal Court). Can I make an H&C application anyway? When do the six months start?

You can and should make an H&C application even if you are appealing a negative refugee decision. The six months start on 1 December 2014 or the date of the negative Refugee Protection Division decision (whichever is later). http://www.cic.gc.ca/english/department/laws-policy/pp-ref-haiti-zim.asp?_ga=1.42397280.493482664.1361287877

  • My spouse /common law partner is sponsoring me under the Spouse or Common-Law Partner in Canada Class. What should I do?

The spousal sponsorshp application does NOT by itself count as an H&C application, so there is no stay of removal accompanying the application. While the spousal sponsorship application is ongoing, you can file an H&C application under the special program in order to benefit from the stay of removal.

However, if you included, in your sponsorship application, an application for a waiver from inadmissibility (e.g. misrepresentation), this counts as an H&C application and you therefore benefit from the stay (unless your inadmissibility excludes you from these special measures).

  • What happens if I don’t make an H&C application or I make an H&C application and it is refused?

If after the 6 month period no H&C application has been made, you may be called in for removal by the Canada Border Services Agency (CBSA). If, on the date of your appointment at CBSA,  more than 12 months have passed since your negative refugee claim, you should be eligible for a Pre-Removal Risk Assessment, which means that you would have an opportunity to submit information showing that you would be at risk if removed to Haiti/ Zimbabwe.

  • I have made an H&C application within the six-month period, but I am still worried that I might be called in for removal.

Occasionally mistakes are made. If Canada Border Services Agency calls you in for removal proceedings, tell the officer that you are covered by the Haiti/Zimbabwe special measures and have applied for H&C. Show proof that you made the H&C application (acknowledgement letter from CIC or courier proof of delivery). If, after that, the removal officer does not suspend all removal proceedings, contact your lawyer immediately.

  • I think I might not be eligible for the special measures. What will happen to me? What should I do?

You are not eligible for the special measures if:

  • You  were found ineligible to make a refugee claim;
  • You are inadmissible on criminal or security grounds;
  • You were excluded from refugee protection by the Immigration and Refugee Board (i.e. on the basis of the exclusion clauses of the Refugee Convention);
  • You face an outstanding criminal warrant.

If you are not eligible for the special measures you may be called in for removal proceedings. You will probably be eligible for a Pre-Removal Risk Assessment, which means that you would have an opportunity to submit information showing that you would be at risk if removed to Haiti/ Zimbabwe.

You should consult a lawyer about possible recourses or if you are in doubt about whether you are eligible for the special measures.

We will be updating this page with more information and resources as they become available, so check back later.

Summary

On December 1, 2014, the Canadian government lifted the moratoria on removals to Haiti and Zimbabwe. The federal government has put in place some special measures for affected persons: