1. The United Nations High Commissioner for Refugees welcomes the opportunity to comment on the paper, "Family Issues - Proposed Directions for Regulations Supporting Bill C-31, The Immigration and Refugee Protection Act: Consultation Discussion Document".
2. The issues raised in this paper are important to UNHCR, because many refugees come (or seek to come) to Canada through its family reunification programs. Family unity is an important basic human rights principle which of course applies equally to refugees and to non-refugees. Article 16(3) of the Universal Declaration of Human Rights and Article 23(1) of The International Covenant on Civil and Political Rights state: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State". Canada, as a signatory to the Covenant, has an obligation to protect the family, including through the promotion of family reunification. In reflection of this principle, the Final Act of the 1951 Convention relating to the status of refugees recommends that Governments take the necessary measures to ensure "that the unity of the refugee's family is maintained, particularly in cases where the head of the family has fulfilled the necessary conditions for admission to a particular country." The rationale is obvious: the unity of the family is to be protected, and the refugee family cannot reunite in the country of origin.
3. In seeking to promote the reunification of separated refugee families, UNHCR is guided by basic humanitarian considerations and by the Statute of the Office, which entrusts the organisation, inter alia, with the functions of improving the situation of refugees and facilitating their assimilation within new national communities. In its 1977 Conclusion on Family Reunion, the UNHCR Executive Committee reiterated the fundamental importance of the principle of family reunion and reaffirmed the role of UNHCR to promote the reunion of separated refugee families through appropriate interventions with governments and with inter-governmental and non-governmental organisations.
4. In light of the above, UNHCR has consistently taken the position that the reunification of refugees with their immediate family members should not be made subject to sponsorship requirements or other selection criteria. While many of the proposals in the ‘Family Issues Paper’ are improvements, they fall short of enabling all refugees in Canada to be rapidly reunited with their immediate family members.
5. UNHCR also submitted comments on the discussion paper "Refugee Family Reunion: Implementation of Policy" circulated by CIC – Refugee Affairs, Resettlement Branch. That paper focuses on operational steps required to implement concurrent processing of extended and de facto family members and the "one-year window of opportunity" policy. UNHCR been informed that this one-year window of opportunity will also apply to the family members of refugees recognised in Canada through the Immigration and Refugee Board's status determination procedure, though there have been no documents circulated to date on how this process would work for that group. UNHCR has a general concern about how these programs interact and the need to avoid gaps.
Comments on Proposals
Proposal #1. Broaden the definition of 'dependent child' by increasing the age from under 19 to under 22
6. UNHCR welcomes the announced intention to amend the definition of "dependent" children to include all unmarried children under 22 years. However, UNHCR urges that particular consideration be given in the Regulations to refugees whose unmarried children are over 21 years of age, but who remain isolated in the country of origin or who are living in a precarious situation in another country. This is especially an issue in cultures where, for instance, unmarried daughters remain dependent until marriage, regardless of age. UNHCR thus strongly recommends that the Regulations leave flexibility for decisions to be made on a case-by-case basis.
Proposal #2. Open up the family class to adoption-like cases in keeping with the guiding principles found in the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption
7. The best interests of the child should be the overriding principle where children are concerned, and refugee children are no exception. With the backdrop of war and violence, standard adoption procedures may not be possible. Refugee and displaced children whose parents have died or disappeared are often looked after by members of the extended family or by friends and neighbours whom the child comes to regard as his or her new family. UNHCR welcomes measures which will permit refugee children to remain with their new "families" in such situations, although a mechanism should be put in place so that, in the event the birth parents are found, the child can be reunited with them, if it is in the best interest of the child to do so.
Proposal #4. Create an in-Canada landing class for sponsored spouses and common-law partners
8. UNHCR supports the creation of an in-Canada landing class for sponsored spouses and common-law partners. However, for this provision to be of benefit to refugees, instructions would need to be given to visa posts "to facilitate" the entry of spouses and common law partners of refugees.
Proposal #5. Exempt family class sponsored spouses, common-law partners and their dependants from medical inadmissibility based on excessive demands on health or social services
9. UNHCR strongly supports this proposal. Family members should not be separated because of medical problems. Indeed, these are frequently the families with the greatest humanitarian need to be reunited.
10. UNHCR notes that the announcement which accompanied the tabling of Bill C-31 in April stated that refugees selected from overseas would no longer be barred because of medical inadmissibility. UNHCR welcomes this announcement. Individuals in need of protection should not be barred from receiving protection because of their medical status, over which they have no control. Indeed, it is frequently because of the persecution they have experienced that they have developed health problems. UNHCR recommends that this exemption be clearly stated in Article 34(c) of Bill C-31, in order to avoid confusion on the part of visa officers.
Proposal #6. Reduce the age for sponsorship from 19 to 18 years
11. UNHCR agrees with this proposal, although few young refugees are likely to have sufficiently established themselves by age 18 to be in a position to sponsor a family member. UNHCR proposes that refugee children under 18 years of age should be able to include their immediate family members in their application for landing. Refugee youth are particularly vulnerable and have a particular need to be reunited with their immediate family.
Proposal #7. Reduce the length of sponsorship undertaking from 10 to 3 years for spouses and common-law partners
12. In the event that sponsorship requirements are maintained for spouses and common law partners of refugees, UNHCR would welcome reduction the length of the sponsorship requirement from 10 years to 3 years. This provision should also apply to fiancées.
Proposal #8. Introduce a bank "guarantor" arrangement for sponsors who cannot meet the Low Income Cut-Off requirement
13. UNHCR does not object to this proposal, as long as it is seen as an additional option, and not a requirement which would exclude other possible means of facilitating sponsorship.
14. Other approaches to assist refugee sponsors unable to meet the LICO could include the following: Taking into account compensating factors, such as the financial benefits parents may bring to Canada; the savings achieved if a parent or grandparent can provide child-care at home; and elimination of the need for refugees in Canada to send money to relatives overseas. Another alternative arrangement could involve allowing siblings in Canada to pool their earnings to meet the LICO requirement to sponsor parents. Additionally, consideration could be given to eliminating the requirement of having to meet the LICO for a full year, before the sponsorship is lodged.
15. UNHCR would like to make two related points on the financial obligations of refugees. The first concerns the right of landing fee, which must be paid before departure of the family for Canada. For this fee, there is a government loan scheme available. However, in 20% of cases, the loan is refused. For sponsors who are refugees in Canada and/or whose family members overseas are refugees, UNHCR would urge that the "need for protection" and the particular importance of reuniting refugee families be considered as a factor in granting the loan.
16. A second point relates to the various financial hurdles for refugees in Canada who sponsor immediate family members under the Family Class Program. UNHCR is concerned that these may be a barrier to family reunification. There is the fee for processing of applications (the "cost recovery" fee, which is $500 per adult and $100 per child), the LICO required to sponsor immediate family, and the "right of landing fee" (which is $975 per adult). The processing fee has to be paid "up front". UNHCR would suggest that consideration be given to the special situation of refugees, by allowing them to pay processing fees in monthly instalments, rather than all at once.
Proposal #12. Sponsorship bar for persons in default of court-ordered spousal or child support payments
17. UNHCR would urge that cases involving default by a refugee on support payments be handled on a case-by-case basis, so that that the most desirable result can be achieved for all parties involved, and taking the best interests of the child into account.
Proposal #13. Sponsorship bar for persons convicted of a crime related to domestic abuse
18. Where a refugee has been convicted of a crime related to domestic abuse, UNHCR would again urge that decisions on sponsorship be made on a case-by-case basis. An individual case determination rather than an absolute bar would allow particular situations to be assessed and judged on their merits.
19. An absolute bar may also have the unintended effect of discouraging victims of spousal abuse from co-operating with prosecution of their abusers, because they want to avoid a situation where they would be prevented from bringing their close relatives to Canada, but need the abuser's support to provide the required sponsorship.
Proposal #14. Sponsorship bar for persons in receipt of social assistance other than for reasons of disability
20. UNHCR has serious concerns about this proposal. Refugees have a fundamental right to family reunification, and their status as recipients of social welfare assistance should not be a barrier to family unity.
21. This provision could deny a child’s basic right to be with his or her parents, because of the parents’ economic situation. Article 10 of the Convention on the Rights of the Child states: "…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 the State Parties in a positive, humane and expeditious manner."
22. Reuniting immediate family
members will generally have a positive effect, as it may facilitate independence
and integration of refugee families. Reuniting the refugee family may enable
the family no longer to rely on social assistance. This could be accomplished
by the reunification with a skilled spouse or the availability of one spouse
to engage in the work force while the other takes care of family responsibilities,
such as child care.
UNHCR Branch Office for Canada
Ottawa, 31 August 2000