"We have come to the conclusion that the refugee determination process is unfair. Churches who open their doors to provide sanctuary are defying this unjust policy. We believe that refugees have a right to life and liberty, that human life is sacred and must be preserved at all costs. Moral institutions cannot obey laws that are unjust and religious leaders are prepared to accept the penalty for this civil initiative that is the sanctuary movement." Darryl Gray, Union United Church, Montreal

The principle of sanctuary dates back to antiquity and is based on the knowledge that houses of worship are sacred places and that violating the sanctity of such a place to enter and remove someone by force is a sacrilege. While the notion is age-old, in more recent history it has been manifested in people risking their lives to harbor slaves fleeing the United States, Jews fleeing Nazi Germany and Central Americans fleeing the risk of torture and death.

Nonetheless, it is an act of civil disobedience, and for ordinary law-abiding, church-going Canadians, the choice to break the law and grant sanctuary to a refused refugee facing deportation is an agonizing one. It is therefore rather startling that a record number of six individuals and families were in sanctuary in Canadian churches during the summer of 2003. As we write this in early October, five are still in sanctuary.

A church that has agreed to offer sanctuary has most likely been approached by an individual or family who is facing removal and has asked to be allowed to seek refuge in the church building. For the Minister or Priest and the church members the decision is usually taken only after they are convinced that the person needs protection and that no other alternative exists. This means carefully interviewing the people and seeking the opinions of the congregational members and the decision making body. Another important consideration is that the refugees need to be fully aware of the implications of their request. These include the physical limitations of living in a building that is not designed as a residence, with little privacy, perhaps without basic necessities such as a shower and of course without any opportunity to go outside. Children will be denied formal schooling. Of even greater concern is that this desperate action has no guarantee of ensuring the protection that the refugees so earnestly desire.

So why indeed do normally conservative, cautious church folk make this move? After much soul searching, they believe it is the only right and just thing to do. It is a decision of both the head and the heart, reason and compassion, and it is not a decision taken lightly.

Canada, like other countries, has an obligation in international law not to deport someone to torture or persecution. Canadians look to the government to live up to this obligation to ensure that refugees are protected. When the government denies protection to certain refugees, some Canadians feel morally compelled to step in and provide the protection that the government has failed to offer.

Aware of the revival of the sanctuary tradition within the contemporary context, the 34th General Council of the United Church of Canada (1992) endorsed "the moral right and responsibility of congregations to provide sanctuary to legitimate refugee claimants who have been denied refugee status".

The Social Affairs Commission of the Ontario Conference of Catholic Bishops noted in June 1993 that "[t]he decision in conscience to offer sanctuary, which is a decision of last resort, is a part of every major faith tradition."

The Interfaith Sanctuary Coalition believes that the current recourse to sanctuary is not a mere series of coincidences, but rather an emerging phenomenon caused by systemic problems in the Canadian refugee determination process.

The following case profiles show how systemic problems lead refugees to turn to sanctuary. Since the problems are systemic ones, many other cases, including those of the other families currently in sanctuary, could have been used to illustrate the same points.

No Right of Appeal: The Vega-Ulloa Family – A Colombian couple and their daughter

Alvaro Vega-Ulloha is in sanctuary with his wife and daughter in a church in the Ville St. Laurent borough of Montreal. A university professor in Colombia, he denounced the kidnapping of a former student by a Colombian government security force at the beginning of 2001. He subsequently gave interviews and public lectures on human rights and environmental law in and around Bogota. In April 2001, he began to receive death threats. He was kidnapped and tortured in June 2001, following which he was hospitalized. The signs of torture on his legs and arms continue to be clearly visible. He finally left Colombia after an attempt on his life in September 2001. Mr. Vega-Ulloa arrived in Canada with his wife and daughter in October 2001 and claimed refugee status.

Colombia is probably one of the most dangerous places on earth today. Amnesty International and Human Rights Watch report widespread human rights abuses by government security forces, including extra-judicial killings and complicity with paramilitary groups in attacks on civilians suspected of sympathizing with guerrillas.. Guerrilla forces have also escalated attacks on civilians, subjecting them to killings, kidnappings and forced recruitment as combatants. Civilians are often caught in the crossfire between guerillas and government forces or paramilitaries. In a disturbing new trend, church leaders who speak out about abuses are being targeted and killed by both sides, often during mass or prayer services.

To prepare for his refugee hearing at the Immigration and Refugee Board (IRB), Mr. Vega-Ulloa hired an immigration consultant. This occupation is currently not subject to any regulation or competency requirements. Minister of Citizenship and Immigration Denis Coderre has pledged both to move forward quickly on regulations for consultants, and to protect individuals who have suffered at the hands of such consultants. The consultant in question made an error in translating, from Spanish, Mr. Vega-Ulloa’s written explanation of his persecution for his Personal Information Form (PIF), creating an apparent contradiction. Mr. Vega-Ulloa asked that the mistake be corrected prior to the filing of the PIF. However, the consultant waited until the moment of the IRB hearing to make the correction. The IRB’s negative decision is based, above all, on this error, as the Board refused to accept the consultant’s explanation that the error was his fault. This negative decision came despite the visible signs of torture, proof of the medical treatment received in Colombia and the fact that the claimant’s advocacy for human rights in Colombia was not in doubt.

Any system of adjudication is open to error. That is why virtually every decision-making process involving rights of any significance gives rise to a right of appeal. Since the abolition of capital punishment in Canada, the decision to grant or refuse refugee determination status is the only judicial decision in Canada which can result in someone’s death.

Despite the extreme gravity of the refugee determination decision, there is no appeal in the merits available to refused refugee claimants. Mr Vega-Ulloa and his family could turn to no tribunal or government decision-maker to show that the original decision was simply the wrong one.

The lack of appeal has been the most important flaw in Canada’s refugee determination system, since its inception in 1989. This flaw has consistently been pointed out by refugee advocates. Parliament recognized the need for an appeal and provided for one when they adopted the new Immigration and Refugee Protection Act. However, the government ignored the clear will of Parliament and implemented the law in June 2002, without implementing the sections of the law that gave refugee claimants access to the appeal.

Another family denied the right of appeal is the family of Menen Ayele. This family is currently in sanctuary in a church in the Little Burgundy district of Montreal. She is a citizen of Ethiopia as are her two oldest children. Her youngest child is a Canadian citizen having been born in Canada. Ms. Ayele fears persecution in Ethiopia as a member of the Amhara ethnic group and due to her active membership in the All Amhara People’s Organization (AAPO), a group defending the rights of the Amhara people.

On May 3, 2001 she was beaten and arrested for twenty days because of her involvement in the AAPO. While in detention she was tortured. She and other political prisoners were released due to international pressure. Around the same time her husband disappeared and other members of his organization were arrested, an event documented by Amnesty International. He was associated with the Ethiopian Human Rights Council. To this day Ms. Ayele does not have any word about him.

Ms. Ayele’s story is entirely consistent with human rights reports regarding Ethiopia. Amnesty International and Human Rights Watch state that hundreds of civilians are killed each year by police while hundreds more die in inter-communal fighting. Thousands have been arrested and arbitrarily detained and torture is widespread. Favoured targets include members of groups like the AAPO and human rights activists like Ms Ayele’s disappeared husband.

Her case at the IRB was rejected as "implausible". Reasons given included that she did not bear visible scars of torture and that she was unable to provide her medical records from Ethiopia. The IRB also decided that an attestation from the Toronto office of the AAPO was not sufficient to establish her affiliation with that group.

One might have expected that, even if Ms Ayele did not get a fair refugee hearing, her family would have been rescued by humanitarian and compassionate consideration. Canadian law allows anyone, including a refused refugee claimant, to apply for permanent residence in Canada on humanitarian grounds. Any reasons can be invoked, including risk faced in one’s country of origin, as well as attachment to and integration in Canada. The Supreme Court of Canada has ruled (in the 1999 Baker case) that, when assessing such humanitarian applications, immigration officials must give serious consideration to the best interests of any children involved.

Even if, as the IRB believes, Ms Ayele does not face a personalized risk in Ethiopia, there is still clearly a significant and objective risk for her and her children in returning to the country, given the large-scale government-sponsored and inter-communal violence. In addition, in support of her humanitarian application, Ms. Ayele submitted a medical report concluding that she suffers from a post-traumatic stress disorder due to violence she suffered in her home country. Ms. Ayele pointed out that she has three brothers and a sister who are Canadian citizens and who form a very important support network for her and her children. She produced an assessment from a social worker who found that all three children are well integrated here, and that a return to Ethiopia would be detrimental to their normal growth. Finally, obliging her to leave would require her to choose between leaving her youngest child behind in Canada (he is allowed to stay, because he is a Canadian citizen) or taking him back to Ethiopia, where his prospects for a safe, healthy life would be immeasurably poorer than in Canada.

All in all, her humanitarian application appears to be a textbook case of great hardship if forced to leave, attachment to Canada, and best interests of the child. Nevertheless, it was rejected.

The "substantial weight" that the Supreme Court said was to be accorded to the best interests of the children was discharged with the comment that the children could flourish in any environment as long as they have one parent with them, that the children had only been in Canada for two years, and that they appear to have suffered no lasting damage from the disappearance of their father and the arrest and 20 day detention of their mother.

Canada’s refugee determination system is designed to protect people who would face personalized risk if removed to their home countries. The Canadian government also recognizes that there are some situations where the risk of violence is so broad that anyone might be at risk. In such cases, the Minister can declare a temporary suspension of removals to the country. (Currently, there are suspensions in the cases of Afghanistan, Burundi, Democratic Republic of Congo, Iraq, Liberia, Rwanda and Zimbabwe).

Two of the five cases currently in sanctuary are from Colombia. There are compelling reasons why the Canadian government should declare a temporary suspension of removals to Colombia.

Human Rights Watch has called on the United States government to offer Temporary Protected Status to Colombians in the US because of the situation. They noted that "[t]his horrific violence causes Colombians to flee their homes, their regions and, often, their country", adding that "more than 200,000 Colombians were forcibly displaced in 2002, most by paramilitaries."

The Canadian government’s own current travel advisory states that "Canadians should not travel to Colombia until further notice" due to "an increased risk of violence, including bombings, kidnappings, and assassinations. The armed forces are continuing their offensive military actions. Insurgent groups are intensifying offensive actions in rural areas and in some towns. The situation is tense, unstable, and unpredictable."

The Canadian Council for Refugees called on the Canadian government to review the situation in Colombia with a view to suspending removals. The government declined, arguing that the risk is individual, not generalized, contradicting the travel advisory to Canadian citizens. Perversely, some Colombians applying for refugee protection are being rejected on the grounds that the risk they fear is generalized, not personal.

In referring to some of the sanctuary cases, government officials have sometimes argued that there would be no risk to the individuals in question, because they would not be deported to the country in which they claim to face persecution, but rather to United States, through which they passed in transit to Canada.

Unfortunately, deportation to the United States is no solution. Under US immigration law, there is a one-year time limit for making an asylum claim. If a refused refugee is returned to the United States by Canada, the US Immigration Judge will not use the date of re-entry to the United States, but rather the date of original entry to the US as the starting date for counting the one-year time limit. Although it is possible to request an extension, most Immigration Judges do not accept that applying for refugee status in Canada constitutes an exceptional circumstance warranting an extension. Therefore, it is unlikely that a refused refugee claimant who is returned by Canada to the United States would be able to pursue an asylum claim there.

At most, if they are able to prove they are victims of torture, they will be eligible for "Withholding of Removal". This is very difficult to obtain, with an extremely low success rate. It grants no permanent status, only a temporary stay of removal until such time as the risk to the individual has diminished.

In addition, refugee claimants returned to the US would face a presumption against them because of the negative decision they had received in Canada. They would have the burden of trying to prove that the Canadian refugee determination was wrong in their case.

From the moment of arrival in the United States, all individuals face the risk of detention, especially men, even if it means a separation from the rest of the family. The United States also detains a large number of immigrant children, often in sub-standard conditions, for which they have been criticized by groups such as Amnesty International.

Even if the returned individuals are not detained, they would not be eligible for a work permit for at least six months, and would not be eligible for social benefits, making them entirely reliant on private charities or individual resources to survive.

We are deeply concerned that, because of flaws in the refugee determination system, people whose life and safety are in jeopardy currently face deportation from Canada. In failing to protect some refugees, Canada is not meeting its moral and legal obligations.

Errors in refugee determination are occurring which the system cannot correct because the government has not implemented the appeal on the merits provided by the Immigration and Refugee Protection Act. Uncorrected errors can mean that a person is sent back to torture, death or other forms of persecution.

We call on the Canadian government to protect refugees in Canada by ensuring that all claimants have access to a fair hearing before a well-qualified decision-maker, by implementing the appeal on the merits and by offering a meaningful review of the cases of refused claimants currently in Canada whose claims appear to have been wrongly rejected.

United Church of Canada, Unitarian Universalist Church of Canada, Social Ministry of the Archdiocese of Montreal, Canadian Conference of Bishops Episcopal Commission for Social Affairs, Anglican Church of Canada, Canadian Islamic Congress, Centre Justice et Foi, B’Nai Brith Canada, Canadian Council for Refugees, Colombianos Unidos, McGill Refugee Research Project, Ligue des Droits et Libertés, Canadian Labour Congress, Réseau oecuménique justice et paix, Concertation Comprendre et Agir pour une paix juste, Primate’s World Relief and Development Fund, and many others.

9 October 2003