Refugee determination system: a practical guide

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Introduction

This information is intended for front line workers who support refugee claimants and other vulnerable migrants. The information here comes from the CCR webinar “Supporting refugee claimants: practical steps” and input from our members working on the ground. Members can access the recording of this webinar here: ccrweb.ca/en/resources-supporting-refugee-claimants-practical-steps

Using the term "Refugee Claimant"

A “refugee claimant” is a person who has fled their country and is seeking Canada’s protection at our borders, or within the country. We do not know whether a claimant is a refugee or not until their case has been decided. CCR advocates continuing using the traditional Canadian term “refugee claimant” rather than “asylum seekers” or “asylum claimants.” For more information see our comments on the usage of the term here: ccrweb.ca/en/refugee-claimants-comment-use-terms

The CCR opposes discrimination against claimants based on their country of origin or the place where they made their claim and is calling for reforms to the refugee determination system to make it fairer for all.

Resource:

Refugee determination system overview

The refugee determination process is a complex multi-step process that will vary for each claimant according to factors such as:

  • Where they made their claim
  • Whether they are eligible to make a claim (more details under “eligibility”)
  • Their country of origin – Designated Country of Origin (DCO)

 

Resources:

Illustration of the different steps in the refugee determination process.

Practical Q&A intended for claimants themselves for questions regarding forms, delay, requirements and services.

Guide covering all steps and provisions of the process of claiming refugee status in Canada.

Video explaining the Refugee determination system of Canada.

Preliminary resources – Legal support

It is very important that refugee claimants seek legal counsel, as the process is complicated and the stakes are very high. Legal counsel can be found through legal aid offices when applicable or through other legal clinics and community resources.

Legal aid & community resources

Many claimants will need to seek legal aid to cover the costs of being represented by a lawyer. Legal aid is a provincial jurisdiction. Not all provinces provide legal aid coverage for refugee claims. When coverage is provided, the criteria and how to apply vary by province. For the listing of all legal aid offices per province please consult this link:

www.irb-cisr.gc.ca/Eng/RefClaDem/Pages/ClaDemGuideLegAidJur.aspx

Other legal resources available per provinces and/or territory (when applicable):

  1. Alberta
  • Legal Aid Alberta: 1-866-845-3425, www.legalaid.ab.caLegal aid office
    1. Calgary
  • Calgary Legal Guidance: (403) 234-9266, clg.ab.caFree legal counsel for qualifying refugee claimants
    1. Edmonton
  • Edmonton Community Legal Centre: (780) 702-1725, www.eclc.caFree legal counsel for qualifying refugee claimants
  1. British Columbia
    1. Vancouver

Legal Services Society: 1-888-601-6076, www.lss.bc.caLegal aid office

  • Law Students’ Legal Advice Program: (604) 822-5791, www.lslap.bc.caFree legal counsel
  • Access Pro Bono Society, 1-877-762-6664, accessprobono.caFree legal counsel
  1. New Brunswick
  • New Brunswick Refugee Clinic: (506) 204-5781, nbrc-crnb.caFree legal counsel specific for refugees
  1. Nova Scotia
  1. Manitoba
  1. Ontario

Refugee Law Offices, www.legalaid.on.caLegal aid offices

  1. Quebec

Step 1: Making a claim

A refugee claim can be made either at the border when arriving in Canada through an official Port of Entry (POE) which includes airports, land or seaports or once already in the country, as an Inland claim.

Making an Inland claim vs. a Port of Entry (POE) claim

 

POE

INLAND

Claimants complete claim forms to make a claim on site with the help of CBSA officers.

Claimants complete themselves claim forms and the Basis of Claim form (should be done with a lawyer) and translate all their documents to support the forms. This can potentially take weeks or even months.

The CBSA officer determines eligibility right away or within 72 hours of the claim being made. If the claim is eligible, the claimant receives their Refugee Protection Claimant Document (RPCD).

Claimants request an appointment with a local IRCC office once they have all the forms and documents ready. Waiting times for appointments vary according to each region, but may be 2-3 weeks. The IRCC officer will determine eligibility at the interview. If the claim is eligible, the claimant receives their Refugee Protection Claimant Document (RPCD).

The claimant must file the Basis of Claim (BOC) form within 15 “calendar days” after claim is found eligible (should be done with legal counsel).

The Basis of Claim (BOC) is submitted when the claim is made at a local IRCC office.

 

Resources:

Summary of the two ways to claim refugee protection in Canada.

IRCC Applicant’s package: all forms and guidelines.

List of IRCC offices per province and territory.

Step 2: Eligibility

When making a claim, officers will assess if the claim is eligible.

Grounds of ineligibility:

  • The claimant entered (at a POE) from a Safe Third Country (i.e. the USA)
  • The claimant already has refugee protection in another country
  • The claimant made a previous claim in Canada (including a claim that was found ineligible)
  • The claimant is inadmissible on security or certain criminality grounds

If the claim is found eligible, the claim will be referred to the Immigration and Refugee Board (IRB) and the claimant will receive a Refugee Protection Claimant Document (RPCD).

The law also specifies that the CBSA or IRCC officer must give the claimant the date of their IRB hearing. However, the IRB is changing scheduling priorities starting January 2018 so the hearing is very unlikely to go ahead on the date given to the claimant at the time of eligibility.

Resource:

List of eligibility criteria.

Safe Third Country Agreement (STCA)

Under the STCA, in force since December 2004, Canada and the US designate each other as “safe” for refugees and establish the principle that refugee claimants should generally seek protection in the first of the two countries that they reach. 

Because of the STCA, claimants arriving from the US at any official Canadian land border will be found ineligible to make a claim, unless they meet an exception. People found ineligible under the STCA are almost always immediately returned to the US. The STCA does not apply to people who enter Canada in between official border points: therefore, claimants in the US who are in need of protection cross the border irregularly to make a claim once in Canada.

Exceptions:

The person:

  • Has qualifying family members physically present in Canada
  • Is an unaccompanied minor and neither parent (or legal guardian) is in either USA or Canada
  • Has a valid Canadian visa
  • Is a national of a country where visas are not required to enter Canada but are to enter the USA (e.g. Mexican nationals)
  • Is subject to the death penalty

The CCR has been calling for a suspension of the agreement, and is currently challenging the STCA in court.

Resources:

Includes a sharable infographic, a FAQ and practical information on the STCA.

Offers practical information (in English, French and Spanish) on implications of the STCA depending on type of entry and details regarding exceptions and other important information.

Application and implications of STC and explanations regarding all exceptions.

Claimants from a Designated Country of Origin (DCO) vs. claimants not from a DCO

The law specifies that claimants from a DCO are to have their refugee hearing scheduled earlier than for those who are not from a DCO. However, starting in January 2018, the IRB is implementing a new scheduling policy due to the large number of claimants, and the legislated scheduling rules for hearings are no longer being applied.

 

Resources:

List of all official countries that have been designated DCO.

This chart shows the different timelines depending if the claimant is from a DCO or not.

Refugee Protection Claimant Document (RPCD)

The RPCD is a document that identifies individuals as refugee claimants and gives them access to provincial and federal services. The RPCD is issued to claimants when a claim is found eligible and the claim is referred to the IRB.

With the RPCD claimants can:

  • Apply for Social Assistance
  • Access refugee shelters (depends on provincial system)
  • Apply for a Work Permit (certain conditions apply)
  • Possibly access ESL/FSL classes (in very few cases open to claimants)
  • In the case of minors, access education up to high school

 

Resources:

Listing of all member organizations working with refugees and vulnerable migrants. If you are connected as a member, each organization’s profile lists the services they provide.

British Columbia

Provides a list of member organizations and societies serving refugees and immigrants in B.C.

Offers a comprehensive listing of all different services available for refugees (including refugee claimants) in British Columbia, along with guides and toolkits related to those services.

Alberta

Provides a list of member agencies serving refugees and immigrants in Alberta.

Saskatchewan

Provides a list of member agencies serving refugees and immigrants in Saskatchewan.

Manitoba

Provides a list of member agencies serving refugees and immigrants in Manitoba.

Ontario

Provides a list of member organizations and agencies serving refugees and immigrants in Ontario.

  • Settlement.Org – Information Newcomers Can Trust – OCASI: settlement.org

Covers a wide range of information concerning services accessible to refugees and vulnerable migrants in Ontario.

Gives more information on the “emergency assistance” that is accessible to inland claimants prior to the issuance of the RPCD up to a maximum of three months or six 16-day instalments. Lists all local offices to reach out to in order to apply.

FAQ format - look at specific benefits and services under “Getting benefits and services” topic.

Quebec

  • Membres – Table de Concertation des organismes au service des personnes réfugiées et immigrantes (TCRI) : tcri.qc.ca/membres

In French - Provides a list of member organizations serving refugees and immigrants in Quebec.

Offers a detailed explanation of all social benefits and programs for refugee claimants in Quebec.

Listing of the resources available to refugee claimants in Quebec.

New Brunswick

Provides a list of member organizations serving refugees and immigrants in New Brunswick.

Nova Scotia, P.E.I., Newfoundland and Labrador

Provides a list of member organizations serving refugees and immigrants in the Atlantic provinces.

Interim Federal Health Program (IFHP)

When refugee claimants receive the RCPD, they also have access to the Interim Federal Health Program (IFHP), as the RCPD serves as health card. Note that all refugee claimants need to do a medical examination by an IRCC accredited medical provider within 30 days after the RPCD is issued. Refugee claimants continue to be eligible to the IFHP after their refugee claim is rejected as well as ineligible claimants that are eligible for PRRA.

Resources:

Lists timelines and processes

Listing of all approved physician for medical examination.

Information on the inclusions and exclusions of IFHP.

Step 3: Work Permit

Why is it important?

A work permit is not only mandatory to work, but it is also required to get a Social Insurance Number (SIN). The SIN is later useful to file taxes and to apply for the Canada Child Benefit (only available after the parent is accepted as a refugee). Even if the claimant does not intend to work, having the work permit is useful until they obtain the permanent residence. Claimants are encouraged to keep renewing the work permit (no limit of renewal) up until they get the permanent residence. Because of long processing times, the renewal process needs to be initiated early on.

Who can apply?

  • Claimants whose claim has been found eligible
  • Rejected refugee claimants
  • Individuals who have:
    • A positive judicial review
    • A positive Refugee Appeal Division decision
    • A positive decision on Pre-Removal Risk Assessment (PRRA)
    • An unenforceable removal order, including people whose claims are found ineligible but are eligible for PRRA
    • Been accepted under Humanitarian & Compassionate grounds

When can one apply?

The process of applying for a work permit varies between claimants:

  1. Non-DCO: Can apply anytime, need to prove they have completed their medical examination.
  2. DCO: can apply only after their refugee claim is accepted OR after 180 days have passed since their claim was referred to IRB (found eligible). Note that the medical examination is also required.

What is the cost and who needs to pay?

Refugee claimants with a claim in process and those found to be refugees do not pay a fee for the work permit. This also applies to those who have received a positive decision on a Pre-Removal Risk Assessment.

However, rejected refugee claimants must pay the fees ($155) even if:

  • There is a pending appeal;
  • A decision has been made in Federal Court that refers them back to IRB
  • They have been accepted on Humanitarian & Compassionate grounds

 

Resources:

Chart with all fees and exemptions according to the person’s status or situation.

Applying online vs on paper

It is possible to apply for a work permit online or to mail an application. In general, online applications are processed faster. However, the online application can be challenging for claimants, mostly due to the payment requirements:

  • The payment must be done online with a credit card.
  • The online application requires payment of an additional $100 open permit fee even though refugee claimants, refused refugee claimants and individuals with an unenforceable removal order are exempted from this fee (always double check with your community organization, other categories might also be exempt). When paid upfront through the online process, the fee is eventually reimbursed (a few months later).

 

Resources:

Practical guide to make a work permit application online.

For online applications, home page to create an account.

Notice explaining the delays for processing times.

Step 4: Preparing for the hearing

The hearing with IRB is a very crucial step. Claimants should ensure they have proper legal counsel throughout the process (starting with preparing the BOC form).

The IRB has strict rules when it comes to how and when evidence can be submitted. Evidence is needed to demonstrate the situation in the country of origin of the claimant as well as to document the specifics of the claimant’s case. For all evidence gathered, documents need to be translated into French or English and (ideally) reviewed by a lawyer. The deadline to submit all documents is 10 days before the hearing, although all important additional documents should be brought to the hearing with an explanation of why they could not be sent within the deadline.

For those who have hearings outside of their location, it is important to prepare in advance and have logistics around accommodation, childcare, travel and food sorted out.

 

Resources:

Directs to all tools and resources to get ready for the hearing, for the day of the hearing and after the hearing.

Starting from a case scenario, the resource takes you through the process of making a claim, with videos explaining each step. Provides hearing preparation checklists, a to-do list to gather evidence and a guide for community workers to support claimants.

This website gives you access to all Kinbrace resources (preparation guides and Ready Tours) as well as information updates for refugee claimants preparing for their hearings.

This guide is addressed to claimants themselves and available in 11 languages (varies according to the region selected).

Free tours offered in partnership between IRB and NGOs. Offered in Vancouver, Calgary, Edmonton, Winnipeg, Toronto and Montreal to support claimants to prepare for their refugee hearing by visiting the hearing rooms, meeting IRB staff, and getting familiarized with what will happen during the hearing.

Video explaining the refugee determination system of Canada and showing you what hearings look like.

Due to high demand and limited capacity, there are important delays and backlogs at the IRB. This notice explains the current situation (including a practical Q&A).

Step 5: Post-Hearing

Decision

The Refugee Protection Division (RPD) will mail a “Notice of Decision” saying whether the claim was accepted or rejected. It is thus crucial to ensure the RPD has the claimant’s current address.

The “Notice of Decision” will:

  • If positive: be included in the Permanent Residence application
  • If negative: determine the timeline for recourses (upon reception date)

*Note that the “Notice of Decision” is the ONLY document that claimants have to prove their immigration status as protected persons or Canadian residents. It is crucial to keep the original, except when applying for a “verification of status”.

Positive decision

The claimant is now recognized as a Refugee (Protected Person) and is entitled to more services and to apply for Permanent Residence (PR), in which they can include their spouse and dependent children in or outside Canada (under 22 years old) and thus start the process of family reunification.

Permanent Residence (PR) application

Many of the documents used to make the claim are used again for the PR application, so ensure the claimant keeps copies of all documents.

Fees:

  • Principal applicant: $550
  • Spouse/Partner: $550
  • Dependent Child: $150 per child

 

Fees can only be paid online and a copy of the receipt must be submitted with the PR application. Unfortunately online payments for fees are often a challenge for applicants. Note that in the case of an unaccompanied minor, as principal applicant each child must pay the principal applicant fee of $550.

*Note: Make sure the application is completed and mailed by courier & tracked.

 

Resources:

List of all forms to fill out in order to apply for Permanent Residence.

A practical resource with updates on the age of dependants and information on which children can be included.

A practical guide that covers the major barriers facing families trying to reunite.

Other services

With a positive decision from the Refugee Protection Division (RPD), a protected person can now also apply for:

  • Provincial health card
  • Post-secondary education (with a study permit until they have their PR)
  • ESL/FSL/Language Instruction for Newcomers to Canada (LINC) classes, or francisation (in Quebec)
  • Services provided by IRCC funded settlement agencies (outside Quebec)
  • Canada Child Benefit
  • Refugee Travel Document

 

Resources:

Information on study permits for protected persons.

Practical information on how to apply for a study permit in Canada.

Members’ only CCR FAQs on the Child Tax Benefit.

Practical information on how to apply for a travel document to travel without fear of losing the right to remain in Canada.

Practical information on why it is crucial that refugees do not apply for or use a passport from their origin country, which might cause them lose their right to remain in Canada.

Negative decision

Unfortunately, claimants are often faced with a negative decision. When this is the case, we recommend seeking legal counsel to help with the next steps according to the options available to the claimant.

Possible recourses:

  1. Refugee Appeal Division (RAD)

When faced with a negative decision, rejected refugee claimants need to see if they can apply to the RAD to appeal the decision on their case.

Deadline: 15 days after written decision is received. Not all claimants can apply.

  1. Judicial Review

If claimants are not eligible to appeal to the RAD, they can ask the Federal Court of Canada to review the decision. Lawyers need to apply on behalf of rejected refugee claimants.

Deadline: 15 days after written decision is received. No automatic stay of removal, which means a claimant might be removed before decision.

  1. Pre-removal Risk Assessment (PRRA)

The PRRA is a paper-based application filed by people facing removal of Canada in order to request protection based on assessment of the risks they would face if removed.

Deadline: In most cases, only available after 12 months have passed since the negative refugee decision. Cannot be self-initiated, Canada Border Service Agency (CBSA) assesses claimant’s eligibility for PRRA and sends information to the claimant concerning possibilities of PRRA if applicable.

  1. Humanitarian and Compassionate application (H&C)

H&C is an application for permanent residence (PR) on Humanitarian and Compassionate Grounds that looks at a) establishment in Canada, b) best interests of a child, and c) hardship the applicants would face if they had to leave Canada. It is a discretionary decision.

Deadline: In most cases, rejected claimants may only apply after 12 months have passed since the negative refugee decision (with exceptions in cases involving best interests of the child or serious health risks for which there is a lack of available treatment in the country of origin). No automatic stay of removal, which means a claimant might be removed before decision.

 

Resources:

Explains the aftermath of a negative decision and possible outcomes of an appeal.

This page explains and links to specific information regarding all four options above.

This chart shows the different timelines and path once a claim is refused.

This publication explains in detail what is the H&C, who can apply, and how to do so.

Refused claimants who cannot be removed from Canada

Some claimants cannot be removed from Canada due to a Temporary Suspension of Removals (TSR) or Administrative Deferral of Removal (ADR). TSRs and ADRs are applied by the Canadian government to countries (or parts of countries) where there is a situation of generalized insecurity.

Note that the TSR or ADR does not apply to persons who are inadmissible on grounds of criminality, international human rights violations, organized crime or security.

For people who cannot be removed due to TSR or ADR, it is possible to apply for:

 

Resources:

Explains how to appeal a removal order and why it might be delayed. Includes list of countries subject to TSR or ADR.

 

 

 

This resource is part of our Improving Access to Justice series funded by the Law Foundation of Ontario 

Feb 2018