Comments on proposed amendments to Immigration and Refugee Protection Regulations, published in the Canada Gazette, Part I, 27 September 2003

25 November 2003

Permanent Resident cards

16(2) proposes to amend the requirement (56(2)(c)) for permanent residents applying for a new permanent resident card (or a first card if landed prior to June 28, 2002) to provide certified copies of travel documents. The CCR welcomes the attempt to amend the requirement which has caused significant problems for refugees who do not have any of the listed documents.

However, the proposed change by no means solves the problem for refugees. It says that applicants for a permanent resident card must provide:

a) some kind of travel document (as listed in IRPR 50(1)), or

b) one of the documents listed in IRPR 178(1), i.e. any other kind of identity document or the combination of affidavits established for the purposes of landing refugees without documents.

This means that refugees who are already permanent residents and who are simply applying for a card to confirm that status will be forced to satisfy the identity requirements as if they were applying for permanent residence for the first time. The fact that they satisfied the identity requirements when they became permanent residents counts for nothing. Under this new proposal, applicants for the permanent resident card will find themselves back at square one, having once again to come up with some kind of documentation of their identity, even though they are simply seeking a card that confirms an ongoing status.

For resettled refugees applying for a permanent resident card, they will actually be asked for more documentation than when they were granted permanent residence, since resettled refugees do not need to provide identity documents to be granted permanent residence (IRPR 50(2)). Resettled refugees do not even necessarily have in their possession the documents on which they travelled when resettled to Canada: if they are given temporary travel documents for their journey to Canada, those documents are sometimes taken away from them on arrival. Thus a refugee who had no identity documents but satisfied the visa officer overseas as to identity, who comes to Canada and lives here as a permanent resident for several years, may be unable to acquire a new permanent resident card without trying to track down a person who could sign an affidavit having known the applicant since before arrival in Canada.

A refugee recognized in Canada may be in no better situation. Perhaps she has lost/had stolen the identity documents/affidavits based on which she received permanent residence several years ago. Is it reasonable to expect her now to get new affidavits simply so that she can renew her permanent residence card? What if the person who knew her before arrival in Canada has since moved away or died?

The proposed requirement completely unnecessarily re-opens the question of the person's need to provide identity documents which was dealt with at the time the person became a permanent resident. The demands in this respect exceed those for becoming a citizen: perversely it is becoming easier to become a citizen than to show that you are still a permanent resident.

It should be noted that CIC received copies of any travel or identity documents held by refugees when they applied for permanent residence. Why should CIC be asking applicants again for the same documents?

The requirements for a permanent residence card should be limited to establishing whether or not the person is in fact a permanent resident, not creating hurdles which some permanent residents will not be able to get over.

The CCR recommends that the regulations be amended to state that refugee applicants are not required to provide copies of travel documents, except for refugee travel documents issued by the Minister of Foreign Affairs to them since they became a permanent resident.

17 amends the regulations to stipulate what newly arriving permanent residents must do to receive their first permanent resident card. The proposed text requires that in the case of children under 14 years, the application be signed by a parent, a person made responsible by a Canadian court or a person legally responsible if the parents are deceased.

This replicates the problem in IRPR 57 which has already been raised by the CCR but regrettably is not addressed in these proposed amendments. This is the problem faced by separated minors who have at least one parent alive but not with them (or who don't know whether their parents are alive or not) and for whom no Canadian court has made a person responsible. The regulations neither allow such minors to sign for themselves nor for someone else to sign for them.

The CCR notes that this is a serious problem. The Canadian government is obliged to take the best interests of the child into consideration. Regulations that deny some children the ability to apply for a document attesting to their status can hardly be in the best interests of those children. Article 22 of the Convention on the Rights of the Child obliges Canada to ensure that refugee children, including unaccompanied refugee children, have access to all the rights in human rights instruments. This covers the right of refugees, under the 1951 Refugee Convention, to administrative assistance (Art. 25) and to travel documents (Art. 28).

Permit Holder Class

21 introduces a new provision allowing permit holders, including refugees resettled from abroad on an urgent basis, to become permanent residents. The proposed text would require resettled refugees to meet the identity document requirement that currently applies to refugees recognized in Canada (i.e. to produce a satisfactory identity document, or failing that, affidavits signed by the applicant and someone who knew the applicant before arrival in Canada).

This proposed rule makes a new distinction between resettled refugees who are processed entirely abroad and those who are resettled on an urgent basis to Canada and who complete processing here. The former group do not need to produce identity documents (IRPR 50(2)), whereas the latter group would, if the proposed amendment is adopted. It is unclear why extra barriers to permanent residence should be placed in the way of refugees who have been deemed by visa officers to need urgent protection. The creation of the extra barrier to permanent residence may mean that it is actually a disadvantage for a refugee to be resettled on an urgent basis, rather than being fully processed overseas.

It is important to note that, while those who claim refugee status tend to be in the larger centres, resettled refugees are more often in smaller communities, whether because of government destining or because they have been privately sponsored. Refugees who have no identity documents and who are living in smaller communities will face particular challenges in trying to identify someone who might sign an affidavit on their behalf. The need to establish identity is likely to cause additional stress for both the refugees and the welcoming community, thus impeding the integration process.

It should be stressed that if CIC acquires information leading them to question the identity of anyone resettled, they may use the provisions of the Act dealing with misrepresentation. There are thus ways of dealing with problems of false identity other than penalizing refugees who lack identity documents.

The CCR urges that refugees resettled from abroad on temporary permits be exempted from any identity document requirements, in the same way that other resettled refugees are exempted.

Family Class

37(4) proposes an amendment to IRPR 117(9)(d) which prevents a person from sponsoring a family member who was a non-accompanying family member of the sponsor and not examined at the time the sponsor became a permanent resident. The amendment provides for an exception if the visa officer decided that the family member didn't need to be examined.

This amendment is welcome in that it will allow families to be reunited if members of the family were not available for examination. This is a frequent situation for refugee families who become separated from each other through displacement or imprisonment.

However, the exception does not go far enough in that some non-accompanying family members will continue to be excluded from the Family Class. The implication of this exclusion is that there is no possibility of appeal to the Immigration Appeal Division, where humanitarian factors could be taken into consideration.

This is of particular concern when it comes to children. Canada has an obligation to facilitate the reunification of children with their parents (Convention on the Rights of the Child, Articles 9 and 10). It is unacceptable to have a provision in the law which can bar children from being reunited with their parents.

The CCR urges that 117(9)(d) be amended to ensure that sponsorship applications can be made under the Family Class when the sponsorship would reunite a child with his or her parent, notwithstanding that a non-accompanying family member may not have been examined.

Referral organization

42 provides for an expansion of the definition of "referral organizations" to include governments and international organizations with whom the Minister has entered into a memorandum of understanding or with whom Canada has signed an "agreement relating to resettlement."

This change is clearly motivated by the signing of the "Safe Third Country" agreement between the governments of Canada and the US. This agreement is not a resettlement agreement, but it contains an article that relates to resettlement. We can reasonably assume that this article was included at the insistence of the US, despite the fact that it is completely out of place in an agreement relating to asylum claims. US officials have been candid in stating that their goal is to refer for resettlement refugees who have been interdicted at sea by US authorities and transferred to Guantanamo.

The CCR is opposed to Canada accepting the referral of these refugees as a trade-off for the safe third country agreement. The US interdiction program violates international law. By assisting the US in avoiding its obligations towards refugees, Canada will become complicit in interdiction activities that are widely condemned, including by the UNHCR. Since some of the interdicted refugees may well have family members in the US, Canada may be participating in family separation by resettling refugees in Canada rather than urging the US to fulfill its obligations towards these refugees.

The proposed amendments to the regulations make clear that the referrals to be made under the Safe Third Country agreement will not be guided by the interests of the refugees or the underlying principles of the resettlement program. Referral organizations with which the Minister signs a Memorandum of Understanding must meet certain requirements relating to knowledge of Canadian law, the ability to locate refugees and training of employees. No requirements at all apply to a government with which Canada has signed an "agreement relating to resettlement."

The proposed inclusion of governments as referral organizations raises serious concerns about the potential in the longer term for the resettlement program to be substantially undermined. This is the danger when referrals are permittted from bodies (such as governments engaging in interdiction) that are not primarily motivated by the need to find durable solutions for refugees, but are rather seeking to use the Canadian resettlement program to address their own political priorities (which in the case of interdicting governments includes preventing refugee claimants from accessing their territory).

The CCR recommends that the regulations not be amended to allow governments to be designated as referral organizations. In the alternative, all referral organizations, including governments, should be required to meet the same standards relating to knowledge of Canadian law, the ability to locate refugees and training of employees. The regulations should also prohibit governments that have themselves interdicted refugees from referring these interdicted refugees for resettlement in Canada.

The CCR takes the opportunity to state again here its firm opposition to charging fees to refugees for a referral for resettlement to Canada. We call on the government of Canada to make available the necessary resources to identify and process refugees for resettlement to Canada. We note that, in the case of refugees interdicted by the US government, it would be adding insult to injury to not only interdict these refugees and detain them on an island prison, but then demand a fee for the service of letting them access their right to asylum.