Refugees in limbo - a human rights issue

 

REFUGEES IN LIMBO: A HUMAN RIGHTS ISSUE

 

In recent years an increasing number of Convention Refugees have been unable to become permanent residents or have been forced to wait long periods before they become permanent residents. Without permanent residence, these refugees are denied a whole range of basic rights. In November 1998 Citizenship and Immigration Canada estimated that the number of refugees in this "limbo" was 13,000.

There are three main barriers to permanent residence for Convention Refugees:

  • a legislative amendment introduced in 1993 requires Convention Refugees to produce "satisfactory identity documents" before they can be granted permanent residence. Particularly affected have been citizens of Somalia and Afghanistan, because of the inability of these countries to offer their citizens documents. Convention Refugees from other countries, including Burundi, Sri Lanka and Iran, have also been affected. Women, young people and those from rural areas are particularly hard hit by the ID rule, since they are less likely to have had identity documents such as driving licences and school certificates. In 1997 the government introduced measures (the Undocumented Convention Refugee in Canada Class) which allow Convention Refugees from Afghanistan and Somalia, if they meet certain conditions, to be granted permanent residence in Canada five years after their refugee determination. This then formalizes the existence of categories of Convention Refugees living for years in Canada without permanent residence. Meanwhile, refugees from countries other than Afghanistan and Somalia who cannot provide identity documents have no solution at all proposed for them.
  • Since 1994 Convention Refugees must pay processing fees of $500 per adult and $100 per child to apply for permanent residence. In February 1995, the federal government imposed a Right of Landing Fee of $975 on all adults becoming permanent residents. Some refugees are granted government loans to cover the Right of Landing Fee, but only after they have been evaluated as being able to repay the loan. There is no government loan program for the processing fees.
  • Some Convention Refugees experience long delays in their application for permanent residence because of security checks. The government explains the delays as being at least in part due to a shortage of human resources to complete the reviews. There is no obligation on the government to process a permanent residence application within a certain period of time.


Principal impacts of lack of permanent resident status

Without permanent residence, Convention Refugees cannot benefit from family reunification, they face discrimination in access to education, employment and social assistance and they cannot travel abroad.

1. No family reunification

Family reunification, including reunification of spouses and children, is tied to permanent residence. Convention refugees who have not been landed cannot bring their spouses and children (let alone other family members) until they become permanent residents.

Disruption of family unity : Refugees who left spouses and dependant children behind, sometimes, in situations of great danger or in a refugee camp in the first country of asylum, often have difficulties communicating with them. When communication does occur, the dependants left behind do not understand why the reunification process is so lenghty (there are frequently reports of stress in the husband-wife relationship as some spouses cannot believe the process is so long and think that they have been abandoned). Moreover, in the long term, disruption of family unity can destroy the family connection and make family reunification impossible.

Psychological problems: Refugees separated from their families often suffer from depression. Family separation increases post-traumatic stress disorders often experienced by refugees. Refugees in limbo waiting for family reunification for many years suffer from anxio-depressive symptoms.

Financial problems: Refugees in general face certain difficulties in finding a job and worries about the family they left behind makes it even harder. Family separation also increases the financial problems faced by refugees as they frequently have to send money abroad to assist the family left behind.

Barriers to integration: The stress caused by family separation and the absence of family support makes it very difficult for refugees to integrate in a society they are not familiar with.
 

2. No travel abroad

The Canadian government routinely turns down applications from Convention Refugees for travel documents unless they are also permanent residents. This means that refugees cannot travel abroad to visit their families (which given the prolonged family separation is particularly important). Even when a relative is sick or dying, travel documents are rarely supplied.

3. Discrimination in access to work

Convention Refugees without permanent residence require a work permit in order to be legally employed. Their social insurance number (beginning with a 9) marks them as persons without permanent status. This can cause difficulties for refugees since employers view them as temporary and unreliable. Moreover, refugees are not eligible for many training programs. Non-residents may not be promoted because the employer recognizes the temporary nature of the work authorization. Non-residents cannot apply for citizenship and some professions and forms of employment are restricted to Canadian citizens.

4. Discrimination in access to education

Non-citizens other than permanent residents do not have equal access to secondary or higher education. Regarding higher education, depending on universities, refugees awaiting permanent residence may be asked to pay foreign student fee rates. Convention refugees are not eligible for loans and bursaries, effectively preventing many young people from pursuing their education. the Canada Student Financial Assistance Act restricts eligibility to "a person who is a Canadian citizen or a permanent resident within the meaning of the Immigration Act". Similarly, many fellowships are restricted to citizens and permanent residents.

5. Discrimination in access to financial services

Without permanent residence, refugees are generally refused bank loans, a serious obstacle to anyone hoping to start a business. Refugees have also on occasion been refused a credit card.
 

RELEVANT INTERNATIONAL HUMAN RIGHTS OBLIGATIONS

1. Geneva Convention relating to the Status of Refugees

A. "The Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory..." Article 28

Even after they have been recognized by the Immigration and Refugee Board, Convention refugees in Canada cannot get travel documents until they have become permanent residents.

For example: R. was recognized as a Convention Refugee from Iraq in 1993. Six years later, he has still not received his permanent residence due to long delays in conducting security checks. He has recently learned that he has terminal cancer and would like an opportunity to see his mother. Since he is not a permanent resident, his mother is almost certain to be refused a visa to visit Canada. As for R. getting a travel document to go to a third country to meet his mother, such requests made by Convention Refugees are routinely rejected by Canadian authorities.

B. "The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings." Article 34

To be naturalized in Canada, refugees must first become permanent residents, and then later apply for citizenship. The barriers to becoming a permanent resident and the increases in fees have worked directly counter to the "assimilation and naturalization of refugees".

Far from reducing costs, Canada has through the 1990s imposed ever increasing fees on refugees and others applying for permanent residence and citizenship. The Right of Landing Fee (commonly known as the Head Tax) of $975 per adult is a particularly heavy burden, but it is only one of the fees imposed. A refugee family of 5 (2 adults, 3 children), recognized as refugees in Canada, now must pay a total of $3250 for permanent residence and $700 for citizenship.

IMMIGRATION AND CITIZENSHIP FEE INCREASES
 

June 1, 1994 Refugees recognized in Canada must pay processing fees for landing $500 per adult

$100 per minor

February 28, 1995 Introduction of Right of Landing Fee (ROLF) $975 per adult
February 28, 1995 Introduction of Right of Citizenship Fee $100 per adult
February 28, 1995 Increases in citizenship grant fees Increase from $80 to $100
January 2, 1997 Increases in various immigration service fees e.g. visitor visa from $55 to $75, file transfer from $55 to $100
1999 Proposed introduction of cost-recovery fee for permanent resident card estimated cost c. $50

 


2. International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child

"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State". Article 23.1, ICCPR

"... applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner". Article 10.1, Convention on the Rights of the Child

Applications for family reunification by Convention Refugees in Canada will not be finalized until the refugee in Canada acquires permanent residence. This means that refugees who cannot become permanent residence are denied family reunification.

For example: Amina was recognized by Canada as a refugee from Somalia. However, when she applied for permanent residence, she was told that her identity documents were "unsatisfactory". As a result she was unable to be reunited with her children, who were in a refugee camp in Ethiopia. Things went from bad to worse when Amina's mother, who had been looking after her children, died of cancer.

In 1995, Canada was examined by the UN Committee on the Rights of the Child. In its Concluding observations, under Principal subjects of concern, the Committee stated at Paragraph 13:

The Committee recognizes the efforts made by Canada for many years in accepting a large number of refugees and immigrants. Nevertheless, the Committee regrets that the principles of non-discrimination, of the best interests of the child and of the respect for the views of the child have not always been given adequate weight by administrative bodies dealing with the situation of refugees or immigrants children. It is particularly worried by the resort [...] by the insufficient measures aimed at family reunification with a view to ensure that it is dealt [with] in a positive, humane and expeditious manner. The Committee specifically regrets the delays in dealing with the reunification of the family in cases where one or more members of the family have been considered eligible for refugee status in Canada [...].

3. International Covenant on Economic, Social and Cultural Rights

Article 2(2) of the Covenant commits states to undertaking to "guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex ... or other status" (our italics). The rights in the Covenant include rights to work, to social security, to education and to health services.

Convention refugees who have not yet been given permanent residence are discriminated against because of their immigration status (or lack of status), in regard to their access to many of the rights in the Covenant.

For example: Fatima is a young Somali woman who was recognized as a Convention refugee in Canada. Because her identity documents were not considered "satisfactory" (there is no government in Somalia to issue documents) she cannot get her permanent residence. Despite the fact that she graduated with honors from high school, Fatima has not been able to go to university, since Convention Refugees are not eligible for loans and bursaries.

The UN Committee on Economic, Social and Cultural Rights examined Canada on its compliance with the Covenant in November 1998. In its Concluding Observations (December 1998) the Committee listed among Principal subjects of concern:

Para. 37. The Committee views with concern the plight of thousands of "Convention refugees" in Canada, who cannot be given permanent resident status for a number of reasons, including the lack of identity documents, and who cannot be reunited with their families for a period of five years.

Para. 39. The Committee is concerned that the loan programmes for post-secondary education are available only to Canadian citizens and permanent residents and that recognized refugees who do not have permanent residence status, as well as asylum seekers, are ineligible for these loan programmes...

CANADIAN CHARTER OF RIGHTS AND FREEDOMS

"Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." Article 15 (2)

The barriers to landing faced by Convention Refugees are discriminatory in that they lead to certain groups of people being denied access to rights and privileges available to others. For example, because of circumstances in Somalia and Afghanistan, Convention Refugees with national origins in these countries are unable to meet the identity document requirement and are denied permanent residence. Convention Refugees are also discriminated against when they are unable to obtain permanent residence as a result of their inability to pay the processing fees or Right of Landing Fees because of their age, their disability, their sex, or their financial status. The security provisions of the Immigration Act are also discriminatory because they use a definition of security risk which is much broader and vaguer than that which applies to Canadian citizens.

Oct 1999