REFUGEE RIGHTS ARE HUMAN RIGHTS
HOW CANADA LIVES UP — OR FAILS TO LIVE UP — TO
ITS HUMAN RIGHTS OBLIGATIONS TOWARDS
REFUGEES AND OTHER NON-CITIZENS
Canada is considered to be among the countries that best respect human rights and that offer a most generous welcome to refugees. Canada has signed on to many of the international human rights instruments and has the Canadian Charter of Rights and Freedoms as a fundamental safeguard of people's rights.
But does Canada in fact respect refugees' human rights? Not entirely. Refugees are among the most vulnerable people in society -- at risk of deportation, often lacking the language, connections, knowledge of Canadian society and other resources to defend their rights. And whenever there are cutbacks and restrictions to be made, refugees -- as non-voters, foreigners, the uninvited -- are the first to suffer.
What follows is an overview of just some of the areas where Canada is not measuring up to international standards, showing that Canada is among the "best" in the world not because we're perfect, but because the standards of human rights respect around the world are so low.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights, adopted in 1948, is a statement
of the basic rights and fundamental freedoms owed to all human beings.
As a declaration, it does not have binding force, but it is internationally
recognized as a cornerstone of human rights protection.
WHERE CANADA FALLS SHORT:
For example: T., a refugee from Zaire, arrived in Canada and was questioned at the airport. He did not say he wanted to claim refugee status because he believed he would be immediately sent back to Zaire (this happens in some European countries, and had in fact happened to his sister). A removal order was made against him and he was detained, pending deportation. It was then too late to make a refugee claim. He was only saved from deportation because Canada declared a moratorium on removals to Zaire. Eventually (after 5 months) he was released from detention. Nearly three years later he continues to live in limbo.
Others are found ineligible to make a refugee claim for reasons that go beyond what is allowed in international law.
For example: Sophie and her family fled persecution
in their country of origin and found refuge in a neighbouring African country.
However, because the two countries had close links, their persecutors were
able to follow them and continued to threaten their lives. So they fled
again, this time to Canada. Canada refused to hear their claim for refugee
status, because, according to Canadian law, those who already have refugee
status in another country are ineligible to make a claim, even if
they are not safe in that other country.
For example: in 1983, when communal riots broke out in Sri Lanka, and many Tamils were killed or forced from their homes, Canada imposed a visa requirement on Sri Lankans, thus preventing Tamil refugees from seeking asylum in Canada.
Another aspect of the interdiction campaign is the imposition of fines on airlines that bring "improperly documented" travellers into Canada, even if they are refugees. This turns airline staff into immigration enforcement officials overseas, checking and re-checking travellers' documents and preventing them from getting aboard if they suspect that their documents are not genuine. Refugees turned away often end up being jailed or forced back to their country of origin.
For example: L. arrived in
Canada and made a refugee claim. A couple of months later her husband also
escaped from their country of origin. On his way to Canada to rejoin his
wife (who had recently given birth) he was interdicted, i.e. stopped from
getting on the plane to Canada, in London, England. He was given no indication
that he could make a refugee claim in England and was immediately deported
back to his country of origin.
Geneva Convention Relating to the Status of Refugees
The principal international instrument
for refugees is the Convention relating to the Status of Refugees, adopted
in 1951. Canada did not become a signatory of the Convention until 1969.
Unlike other human rights instruments that came later, there is no monitoring
mechanism or committee that examines countries to see whether they are
complying with their obligations under the Convention.
|"No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion". Article 33|
WHERE CANADA FALLS SHORT:
Article 33, which contains the fundamental
prohibition against "refoulement" (forced return of a refugee), is violated
if and when Canada sends back a refugee who has been denied the right to
enter the refugee determination process (see above).
The fact that Canada's refugee determination system has no appeal on the
merits also means that refugees who are refused in error have no opportunity
to correct the error and risk being sent back to persecution (see below).
The Refugee Convention also has a
number of other provisions that are not fully respected by Canada.
|"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. In recent years, becoming a permanent resident has become more difficult and more expensive.
Since 1993, refugees recognized in Canada have to produce satisfactory identity documents before they can become permanent residents. Those who, through no fault of their own, have only limited documentary proof of their identity, must wait for long periods -- or potentially for ever -- before they can be naturalized. 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.
Far from reducing costs, Canada 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 was a particularly heavy burden.
It was - thankfully - eliminated for refugees in February 2000, but it
is only one of the fees imposed. A refugee family of 5 (2 adults, 3 children),
recognized as refugees in Canada, still must pay a total of $1300 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|
NB February 2000: the government eliminated the Right of Landing Fee
|"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. This causes particular hardship for some refugees who must wait years to get permanent residence, either because they are waiting years for security checks to be completed or because they don't have "satisfactory" identity documents. Many of these refugees come from countries such as Somalia or Afghanistan where there is no functioning government that can provide identity documents.
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.
International Covenant on Civil and Political Rights
The Covenant on Civil and Political
Rights (ICCPR) was adopted in 1966, giving force to the civil and political
rights outlined in the Universal Declaration of Human Rights. This Covenant,
the Covenant on Economic, Social and Cultural Rights
and the Universal Declaration of Human Rights together form the International
Bill of Human Rights. Under the ICCPR, states must make reports to the
UN Human Rights Committee on the measures they have taken to implement
|"All persons shall be equal before the courts and tribunals... everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal..." Article 14.1|
WHERE CANADA FALLS SHORT:
Refugee status in Canada is determined by members of the Immigration and Refugee Board whose appointments are political and thus not necessarily based on competence. Refused refugee claimants have no right to appeal the decision, even though their life may depend on it. Canadians in contrast can appeal matters as trivial as a parking ticket.
The only remedies available to refused claimants are extremely narrow. They can apply for judicial review at the Federal Court: this is sometimes called an "appeal" but it is not an appeal on the merits. Only a narrow range of technical errors can be corrected and no new evidence can be introduced. Applications must be made within 15 days of a negative decision and the Court only hears about 10% of applications.
Refused claimants can seek a risk review (known as "PDRCC") with Citizenship and Immigration Canada (also within 15 days of the decision). The definition of "risk" is very narrow and the review is explicitly not intended to correct bad refugee decisions. Fewer than 5% of applicants are accepted.
This means that a refugee who is refused in error often has no opportunity to have the error corrected, even if further evidence to corroborate their persecution becomes available. This leads to grave injustices.
For example: Peter is a Christian from Iran. His father died and his uncle challenged Peter's and his mother's right to the family home, because Peter is not a Moslem. Peter tried to dispute the uncle's legal challenge, but this led to beatings and harassment by the Revolutionary Guard, of which Peter's uncle was a member. After a severe beating, Peter fled the country. He was denied refugee status by an Immigration and Refugee Board Member that had a reputation of hostility toward Iranian refugee claimants. There was nothing Peter could do to have someone in the system give the decision a second look. Three years later he is still trying to convince Citizenship and Immigration Canada that he should not be removed to Iran.
For example: The Mitac family,
who based their refugee claim on the fact that they were persecuted as
Roma (Gypsies), was rejected on the basis that they looked more "Pakistani
or Turkish." The Board members thought they looked too dark-skinned to
be Roma. The decision was overturned in a Federal Court ruling that had
hard words to say about the Board using skin colour to decide ethnicity.
The ruling noted that judging an applicant's physical features is "inherently
dangerous". This family was lucky that the Federal Court threw out the
decision: how many other decisions made on such wrong-headed notions go
Under the Immigration Act, immigration officers have significant powers of arrest on the basis of suspicion that the person would not appear for proceedings. This leads to "pre-emptive" arbitrary arrest and detention of people under removal orders who have always complied with all immigration requirements. Even when bonds for release are set, they are often high (sometimes $5,000 - $10,000) -- well beyond what most refugee claimants can pay. Some claimants have remained in detention for one, two or even three years. For some non-citizens certified as a "security risk" in arbitrary procedures, detention is mandatory and indefinite.
Immigration officers are the only Canadian officials with the power of arrest that are subject to no independent oversight. Any complaints about immigration officials must go to the Immigration Department itself.
For example: Roger, a refused refugee claimant from Zaire, had always complied with immigration requirements. One evening immigration officials came to his home to arrest him. Because of their intimidating manner and the fact that he had always obeyed the law, Roger was so confused that he tried to call the police. He was not even given time to put his shoes on before being taken away to the detention centre.
For example: M. fled his home
in Africa where he had been active in a political opposition group. He
was detained on his arrival in Toronto because he did not immediately claim
refugee status (believing that he must try to enter as a visitor). When
he did try to make a claim, an immigration official told him it was too
late and that Canada already has too many refugees. M. spent three months
in two different jails and one immigration detention centre, before he
was finally released on bail.
|"The family is the natural and fundamental group unit of society and is entitled to protection by society and the State". Article 23.1|
Canada fails to protect the unity of families
both through slow family reunification (see below)
and through deportations that separate families.
In April 1999, the UN Human Rights Committee published its Concluding observations following its examination of Canada's compliance with the International Covenant on Civil and Political Rights. Under its Principal areas of concern and recommendations, it stated at Para. 15:
The Convention against Torture and
other cruel, inhuman or degrading treatment or punishment was adopted in
1984. The CAT expands on Article 7 of the International Covenant on Civil
and Political Rights: "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment ..." Canada signed the Convention
Against Torture in 1985, and ratified it in 1987. The UN Committee Against
Torture examines states on their compliance with the CAT and can receive
and investigate individual complaints. Canada is due for its next examination.
|"No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture". Article 3|
WHERE CANADA FALLS SHORT:
The Immigration Act nowhere says that people must not be removed to torture. While many people at risk of torture are refugees, and can be protected through Canada's refugee determination system, there are also non-refugees that, according to the Convention Against Torture, need protection from deportation. The refugee definition has a variety of limiting clauses (for instance, refugees must be persecuted on one of five grounds and must not be criminals), whereas no one can be removed to torture, no matter why they risk torture, no matter what they may have done in the past or be likely to do in the future. The absoluteness of the rule reflects the fundamental abhorrence of torture and the international community's obligation to refuse any complicity with torturers.
There is no process to determine whether a person about to be removed might be at risk of torture. People at risk can try to present their arguments about the possibility of torture in another process such as a humanitarian and compassionate review (if they can afford it: it costs $500 per adult) but there is no legal obligation for the decision-maker to apply the Convention Against Torture rule. Failing this, people can also try international remedies, such as appeal to the United Nations Committee Against Torture. But Canada does not necessarily abide by their rulings.
For example: In December 1997,
Canada deported Tejinder Singh to India, despite a request by the UN Committee
against Torture that deportation be stayed so that it could look into his
case. He was alleging that he would be at risk of torture. He was arrested
on arrival in Delhi.
In April 1999, the UN Human Rights Committee published its Concluding observations following its examination of Canada's compliance with the International Covenant on Civil and Political Rights. It stated at Para. 13:
The Convention on the Rights of the
Child was adopted in 1989. Almost all countries (though not the U.S.) have
signed on. The UN Committee on the Rights of the Child examines States
on their compliance with this Convention. Canada was examined in 1995 and
will soon be undergoing another examination.
|"... in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". Article 3.1|
WHERE CANADA FALLS SHORT:
The Convention has never been incorporated into domestic law in Canada. The Immigration Act nowhere requires decision-makers to consider the best interests of the child, let alone make them a primary consideration. The result is that immigration decisions are taken that cause children and youth to be detained, to be deported to situations of risk, or to be separated from one or both parents and siblings.
For example: Marie, a 17-year-old
young woman, fled her home, a francophone African country at war, and arrived
in Montreal to join a number of her relatives. She was refused refugee
status and a request for humanitarian consideration was also turned down.
Immigration Canada was set to remove her to the United States, despite
the fact that she does not speak English, has no family in the States,
and would be at risk of detention and possible deportation to her home
country. Apparently no special consideration had been given to the fact
that she was a minor or to what would happen to her after she was deported
to the US. Marie was lucky -- a determined advocate managed to stay the
removal at the last moment and a second humanitarian request was given
a positive response.
|"... 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|
Refugees applying for family reunification routinely wait months or years before children and parents are reunited. Many of the delays are caused by slow communications (particularly in parts of the world, notably Africa, where Canada has few immigration posts) and by demands for proof of family relationship (at some visa posts, refugee are routinely required to undergo DNA testing, at enormous expense and causing delays). For some refugees who face particular barriers to permanent residence (for example, because of the ID requirement) the wait is many years or even indefinite.
For example: A woman fled persecution in the Democratic Republic of Congo (Zaire), leaving behind her husband and two young children. She reached Canada where she was recognized as a refugee. Meanwhile, her husband, who due to persecution had had to move from their home to the capital city, Kinshasa, grew sick and died. The two young children were left in the care of neighbours, since any relatives were far away. The mother in Canada anxiously pleaded for urgent measures to bring her children quickly to Canada, but according to an Immigration Canada official this is not the kind of situation that merits urgent attention.
In 1995, Canada was examined by the
UN Committee on the Rights of the Child. In its
under Principal subjects of concern, the Committee stated at Paragraph
The Covenant on Economic, Social
and Cultural Rights, adopted in 1966, forms a pair with the Covenant
on Civil and Political Rights that together outline the basic elements
of states' human rights obligations. While Western human rights thinking
has tended to give precedence to civil and political rights, this covenant
serves to grant equal weight to economic, social and cultural rights. The
UN Committee on Economic, Social and Cultural Rights examines States on
their compliance with the covenant. Canada was last examined in November
|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.|
WHERE CANADA FALLS SHORT:
Many of the key rights outlined in the Covenant are dependent in Canada on immigration status. Convention refugees who have not yet been given permanent residence, refugee claimants awaiting determination, refused refugee claimants seeking judicial review of the negative determination or a review on the risks of return, people under a removal order but who have not been removed because of the human rights situation in the country of origin, as well as many others without permanent immigration status in Canada, 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:
This document highlights only some of the ways in which Canada fails to live up to its international obligations towards refugees and other non-citizens. The Canadian Council for Refugees and the Inter-Church Committee for Refugees have recently produced joint submissions on Canada's compliance with the covenants:
Non-Discrimination in Economic and Social Rights
for Uprooted People. Submission with Respect to the Examination
of Canada, November 1998, prepared by the Canadian Council for Refugees
and the Inter-Church Committee for Refugees, July 1998
Submission to UN Committee on Human Rights in preparation
for the examination of Canada on its compliance with the International
Covenant on Civil and Political Rights, prepared by the Canadian Council
for Refugees and the Inter-Church Committee for Refugees, March 1999
This document was produced with the generous support of the United Steelworkers of America in Canada.
Copies of this document in booklet form can be obtained free of charge from the CCR (tel. 514-277-7223).
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