Brief to the Immigration Legislative Review

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BRIEF TO THE IMMIGRATION LEGISLATIVE REVIEW

July 1997

Introduction

Canada is a country of immigration, where all except the aboriginal peoples owe their presence here to an arrival, earlier or later, by sea, or land, or air. Over the centuries, Canada has been a refuge to the persecuted, a land of opportunity for newcomers. According to the Canadian ideal, a person's national origins are irrelevant: all Canadians, new or old, have a right to be considered equal.

These phrases are clichés, yet they point to a fundamental aspect of the Canadian reality which must inform our refugee and immigration policies. At a time when, around the world, doors are shutting and the ugly sounds of racism and xenophobia dominate, it is more than ever important that we be guided by a faith in our tradition of immigration. This tradition breaks down the divisive mentality of "us" and "them": it teaches us that immigration policy is not about how "we" treat "them", but about who we are.

Not all in our tradition, however, is to be repeated. There is much in our immigration history that is shameful, that needs to be remembered and guarded against. We can mention the Chinese Exclusion Act, the Head Tax, the "continuous passage" rule, the internment and deportations of Japanese-Canadians during World War II, the explicit racism of immigration policy until the 1960s and the earlier deliberate exclusions of Jews, including Jews fleeing the Holocaust.

The international context today makes it even more important that Canada reject the course of restrictionism and discrimination. We must not allow ourselves to be drawn into the race for the bottom, as countries compete with each other to develop the "toughest" policies. In the United States, the government has adopted harsh legislation that has been strongly criticized by the UN High Commissioner for Refugees, that the immigration department considers unworkable and that radically cuts money from social benefits to immigrants and pours it into enforcement measures. In Australia the rising cries of nativism have been answered by a dramatic reduction in immigration levels and by measures that significantly reduce the protections for refugees. In Europe, harmonization of asylum procedures has tended to mean the reduction in standards towards the lowest common denominator. The increase in internal freedom of movement has been mirrored by the closing of access to those outside "Fortress Europe". In Africa, a tradition of hospitality towards refugees is being eroded as countries ask themselves why they should continue to open their doors to millions when the rich north turns away the thousands that arrive on their thresholds and fails to offer stable funding for the protection of the millions in Africa.

The 1997 UNHCR Note on International Protection highlights a number of ways in which refugee rights are seriously abused. It reports that refugees and asylum-seekers are refouled through rejection at borders, interdiction on the high seas or involuntary return, through armed force or as the result of bilateral agreements. They note that many people who may need international protection are denied entry into countries of asylum by the expansion of visa regimes, carrier sanctions and inspections at airports abroad. Restrictive interpretations of the refugee definition and broad interpretation of the exclusion clauses lead to the denial of protection and even access to determination procedures.

The recent wave of xenophobia, experienced by many countries as they confront economic, social and political change, has not bypassed Canada. Xenophobia must be challenged. Shutting out newcomers and reducing their rights is not a responsible policy option in the face of xenophobia. Myths and negative policy feed on each other.

Canada needs to chart out a distinctive, honourable course, creating a refugee and immigration policy that is grounded in a vision of our country as open, responsible, fair and diverse.

Human rights obligations

As we prepare to celebrate the 50th anniversary of the Universal Declaration of Human Rights, it is important to examine the place of human rights in the Canadian refugee and immigration policy framework. Twenty years ago when the present Immigration Act was written, human rights were not as much part of the common discourse. Some of the relevant instruments did not yet exist. The Canadian Charter of Rights and Freedoms did not exist.

The commitment Canada makes in ratifying the international instruments needs to be given explicit reference and content in the Immigration Act. Human rights standards need to be understood by all as the minimum acceptable. Decisions need to be guided by these standards.

There are many instruments that need to be included in the Act but two deserve particular mention: the Convention Against Torture and the Convention on the Rights of the Child. The Convention Against Torture obliges Canada not to send anyone to a country where they may be tortured. This obligation is not co-extensive with our non-refoulement obligation under the Geneva Convention relating to the Status of Refugees: a person may not be a refugee and still be in danger of torture. Yet there is no mechanism within the current Act to ensure that this obligation is observed. There are mechanisms which may be able to give protection to someone facing torture, but none to guarantee protection. Post-Claim Determination Officers (PCDOs) are instructed to refer to the Convention, but the Post-Determination Refugee Claimants in Canada (PDRCC) review is only for refused claimants, has many eligibility provisions which exclude significant numbers of refused claimants (recently about 25% have been found ineligible) and has just been made even narrower, excluding cases where criminality is an issue and people who fail to apply within 15 days of a negative refugee determination. Decision-makers are not independent and there is no oral hearing. Humanitarian and compassionate review is another avenue available but it costs money that not everyone has (and women in particular often don't). In any case there is no automatic stay of removal while the review is performed. In addition, officers tend to defer to risk-related decisions made by the Immigration and Refugee Board and the PCDO and generally do not make positive decisions unless there are the more usual family or establishment related factors.

It took a long time for Canada to incorporate the 1951 Geneva Convention into law . The Convention against Torture was adopted in 1984 and came into force 1987. We must not wait so long to incorporate this Convention into the Act.

The Convention on the Rights of the Child is a second key instrument. A fundamental obligation to which Canada has committed itself in signing the Convention is to consider the best interests of the child in all decisions taken concerning children. Many CIC and IRB decisions concern children, yet nothing in the present scheme of the Act directs decision-makers to follow this underlying principle of the Convention. The Convention also obliges Canada to deal with applications for family reunification in a positive, humane and expeditious manner. It should be noted that the United Nations Committee on the Rights of the Child, in its comments on Canada's first report in 1995, included among its principal concerns the insufficient Canadian measures for family reunification.

Other instruments that should be included in the Act are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the American Declaration on the Rights and Duties of Man, the International Covenant on Economic, Social and Cultural Rights, the Principles on Prevention of Arbitrary Execution, the Declaration on the Protection of All Persons from Enforced Disappearance, the Geneva Convention relative to the Protection of Civilian Persons in Time of War, the Convention on the Elimination of All Forms of Discrimination Against Women and the Declaration on the Elimination of Violence Against Women.

Bringing war criminals to justice

Respect for human rights entails bringing to justice those who have committed war crimes and crimes against humanity. Canada has for too long admitted and protected the perpetrators of unspeakable crimes, from the World War II criminals to Léon Mugesera, who was granted admission to Canada with suspicious speed. Refugees who are the victims of the crimes committed suffer the most from Canada's tolerance of these criminals. Survivors of torture have endured the horror of meeting their torturers walking the streets of Canada.

Unfortunately, many of the measures adopted in recent years to address this problem have had the effect of punishing the victims, rather than (or in addition to) the perpetrators. Many refugees, including young children, have suffered long delays in processing for resettlement, while security checks are conducted. Senior officials have been hounded out of Canada even though they had no personal involvement in any crimes against humanity. In such cases no individual decision is made on the person's supposed guilt. People suspected of presenting a risk to the security of Canada have had their fundamental rights denied by laws under which they are arbitrarily detained and deported without ever having the opportunity to know the case against them. In a related, misdirected enthusiasm to protect Canada, people with relatively minor criminal convictions are stripped of their right to live here, even when they have been in Canada for many, many years, are products of Canadian society and have close family here. The changes to the law contained in Bill C-44, to which the CCR was strenuously opposed, were adopted in reaction to specific incidents and have since proven to be far-reaching in effect and grossly unfair.

Measures to address war criminals need to recognize the affected communities in Canada as among the chief interested parties and as a primary source of information. Immigration and Justice officials should be accessible and responsive to refugee communities bringing forward information about perpetrators present in Canada. In developing a response to war criminals, it must be recognized that no matter what the crime, no one can be deported to countries where they risk torture. In order to allow us to deal effectively with such cases, and indeed with crimes against humanity in general, Canada needs to become more active in prosecuting torturers under the Criminal Code.


Economics

It is of course necessary to recognize the current context of fiscal restraint. Refugees and their advocates have little sympathy for expensive procedures and cumbersome, bureaucratic operations. Many of the measures that we criticize primarily on the basis of their injustice are also very costly. Hundreds of people are detained at enormous expense on highly questionable grounds. Some deportations to countries at war have involved extraordinary costs. Questions raised about the resource implications of the proposed Memorandum of Agreement with the USA on the allocation of refugee claims have gone unanswered.

Policy and procedure decisions taken by Citizenship and Immigration Canada have cost implications that go beyond the immediate costs to the department. It is important to take a more comprehensive view, recognizing the longer-term, wider costs and benefits. For example, family separation has important costs to the family and to the society, in terms of physical and mental health and social and economic integration. Excluding refugees in Canada from permanent residence because they cannot pay the required fees or because they do not have the required identity documents risks creating an impoverished, marginalized, alienated underclass with all the costs that entails.

Cost-recovery measures applied at the front end impose an economic burden on newcomers when they are least able to bear it. The obligation to pay processing fees and the Right of Landing Fee as they begin their lives in Canada seriously impedes many newcomers' ability to integrate quickly into Canadian society. The problem is magnified by the fact that the fees are fixed, rather than adjusted to take account of the vast differences in individual, regional and gender income levels.

Cost-cutting measures by CIC have often had fairly direct negative effects on clients and on other organizations. These effects do not appear to have been taken into account by CIC. The dramatic reduction in face-to-face service and the introduction of mail-in processing has given a whole new workload to immigrant- and refugee-serving organizations, who receive no funding for these services. The recent "Pearson Pilot Project" has led to new demands on refugee-serving organizations and lawyers who are called upon to assist claimants in filling out the new form. In the case of the expansion of the pilot to the US-Canada border, it is agencies in the US who suddenly, and without consultation, find themselves required to help refugee claimants with Canadian determination procedures. To add insult to injury, clients are paying more and more to CIC for less and less service.

Cost-saving must not be at the expense of justice. It would be cheaper to turn all refugee claimants away at the border, but it would not be just. Charging the Right of Landing Fee to all applicants for permanent residence raises money, but it is discriminatory. Policy-formation must be driven first and foremost by respect for human rights. Clearly there are more and less efficient ways to respect human rights, but the fundamental requirements of justice are non-negotiable.

Integration

The strength of the Canadian immigration program, and of Canada itself, has been and will always be dependent on the successful integration of newcomers. Our traditions and policies of respect for diverse cultures and relatively rapid granting of citizenship help bridge the gaps between Canadians new and old. These are assets that are envied in many other countries.

Even though the goal of integration is officially supported and promoted, some aspects of immigration policy (and other government policy) work in ways that undermine successful integration. Denial of or delays in access to rights and services slow settlement. Delays in family reunification are known to put enormous stresses on refugees and immigrants, inhibiting their ability to establish themselves in Canadian society. Narrow definitions of family keep newcomers separated from family members who are crucial to their well-being. New Canadians who are consistently singled out for special interrogation when travelling back to Canada after a visit abroad come to feel that they are not fully accepted as Canadians. Access to employment is limited by closed professional associations and barriers to recognition of credentials. Recent restrictions on newcomers' eligibility for job-training programs reduce their opportunities for equipping themselves to participate fully in the labour market.

It is a mistake to think that only the individuals directly affected will suffer in terms of integration. A spate of aggressive deportations, especially to countries at war, can leave whole communities traumatized. Persistent difficulties with immigration processing from certain parts of the world cause groups to feel marginalized and unwelcome. A focus on enforcement measures and the rhetoric of control sends destructive, divisive messages to all Canadians, fostering xenophobia on one side, and alienation on the other.

Immigration and refugee policy should always be developed with a view to promoting integration.


Responsiveness to users

A successful institution or business is necessarily sensitive to the people that it serves. The restructured and downsized immigration department, on the other hand, seems to be growing increasingly removed from the population it serves, and in particular from the less wealthy, less technologically advanced, less powerful parts of that population.

Individuals and whole communities are deeply wounded by policies and practices that are insensitive to their realities. A stark example is the ever increasing insistence on documents to establish identity and family relationship, without regard to the fact that in many parts of the world documents are little used and often unreliable. Women and children are more likely than adult men to have little in the way of identity documents.

Immigration Canada's insistence on paper identity creates formidable barriers to immigration, permanent residence and family reunification for certain populations. The effects of these exclusions are of profound significance, for the individuals directly affected, for the communities most concerned and for Canadian society as a whole. It should not be ignored that the policies are experienced and perceived as racist. In throwing into question the identities of whole communities and in rejecting their mechanisms for establishing who they are, the Canadian government is in a fundamental way dehumanizing members of our society.

The department's orientation towards mail-in, paper processing and away from face to face service is unlikely to change. There are however opportunities for the department to at least attempt compensate, by undertaking meaningful consultation with the communities served. Through consultation it would be possible to ensure better communication, better mutual understanding and services that are better adapted to the needs and realities of the clients.

Accountability and coherence in decision-making

A system that is impenetrable and apparently arbitrary provokes a profound sense of frustration and powerlessness. This unfortunately has been the experience of many users of the immigration system - and even perhaps of some immigration officers. As an already vulnerable group, because of linguistic and cultural barriers and insecurity of status in Canada, refugees and immigrants deserve to be treated with special sensitivity and attention when important decisions are being made about them. Yet too often the reverse is the case. Unseen and unreachable officials make decisions based on unknown criteria. Even where the person concerned is present at a hearing or enquiry, the decision-making process may not be much clearer, as obscure and complicated sections of the law are cited and relied upon. Unscrupulous counsellors prey on the ignorance and anxiety of those caught up in the system.

Over the years the immigration system of entitlements and disentitlements has become increasingly complicated and arbitrary. Decision-making powers have tended to be devolved to the lowest possible level, away from the independent tribunal and the safeguards such an institution offers. Ad hoc changes are made, often in response to political considerations and without regard to the broader implications on the system as a whole. Policies are drawn up with a stated goal but with a whole series of criteria and exclusions that undermine the goal and leave numerous people in limbo. The patchwork of categories that has developed has no overall coherence and ends up looking more like a sieve. As well as official policies in legislation or other public documents, there exists a series of shadowy directives, whose existence may only be hinted at. Those outside the department spend enormous energy trying to guess at or hunt down these secret policies.

What is needed is accountability and transparency in decision-making so that those using the system can see whether they are being treated fairly. Since fairness requires attention to all the particularities of the case at hand, this cannot mean the rigid application of narrow rules. It does on the other hand mean an independent decision, with reasons, based on publicly acknowledged criteria, after the person concerned has had full opportunity to present evidence.

A crucial element in an accountable system is a well-functioning mechanism for addressing errors and abuses. Immigration enforcement officers are in the anomalous situation of having powers of arrest with no independent mechanism of oversight. The imbalance in power between an immigration officer and a non-Canadian, particularly at ports of entry and in detention and removal, is so great that it is incumbent on the government to take measures to safeguard against abuses by officers. Current monitoring and complaints mechanisms are seriously inadequate.

Accountability also entails regular and full reporting to the public. Despite the many professions of openness, a culture of secrecy prevails and obstacles are constantly thrown in the way of those inquiring into how the immigration department conducts its business. Legislated obligations to make information public would help to ensure a greater degree of accountability.

Access to a fair refugee determination system

Canada's reputation for fairness in refugee determination rests to a large extent on the protections of a system that offers an oral hearing before an independent decision-maker. The CCR is concerned that the current positive features of the Canadian refugee determination system be safeguarded. There should be no major changes to the way in which claims are determined by the Immigration and Refugee Board. The success of the IRB is reflected in the international renown it has won for its leadership in dealing with gender persecution and minor claimants and for its authoritative, publicly available documentation. There should be no reduction in the powers of the IRB: on the contrary its mandate should be expanded to cover decisions currently made by CIC which ought more properly to be made by an independent tribunal.

The independence of the decision-maker, both individually and of the tribunal as a whole, is crucial to the integrity of the process. The independence of the IRB must be enhanced and protected from outside interference. Having the Chairperson sit at pleasure, as was proposed in Bill C-49, would seriously undermine the independence of the IRB and hence its ability to make good refugee determinations.

The quality of the decision-maker is also key. Currently quality is seriously compromised by the political nature of the appointments. Members should be appointed to the Board based solely on competence and relevant experience.

The fundamental weaknesses in the Canadian refugee determination system lie at the beginning and end of the process, rather than in the refugee determination itself. Barriers to access to the system mean that refugees in need of protection are never allowed to be heard by the IRB. At the other end, claimants who are refused refugee status are not given a fair opportunity to have the decision reconsidered or have other reasons for fearing removal reviewed.

Canada has in place a series of interdiction measures that prevent refugees from reaching protection and that lead indirectly to refoulement. These include visa requirements, the network of immigration control officers and the imposition of carrier sanctions. Refugees en route to Canada who are interdicted may be jailed in the country through which they are passing or summarily returned to persecution in the country they fled. For the most part the human cost of Canadian interdiction is unknown and unknowable, happening as it does to refugees before they ever reach Canada. A recent study published by the University of Cambridge Institute of Criminology (Refugees and Criminal Justice?, 1996) throws some light on the fate of some asylum-seekers interdicted in the UK on their way to Canada or the U.S. and immediately arrested on charges of travelling on a false passport. The vast majority of those interviewed by the author gave political reasons for their flight, suggesting that many of them were in fact refugees. If Canada is to honour its responsibilities towards refugees, it must at least correct the indiscriminate character of its interdiction measures, so that asylum-seekers are not amongst those prevented from travelling to Canada.

Access to protection in Canada is also potentially threatened by the safe third country provisions in the Immigration Act, although not currently implemented. Countries in Europe have taken the lead in experimenting with the concept of safe third country. Their experience has demonstrated the inadequacy of this approach to offer protection to refugees. This failure is in no way surprising given that the safe third country derives not from any genuine desire to achieve an equitable share of the responsibility for determining refugee status, but from narrow interests in minimizing the number of claims each country must determine. On the strength of a promise that they can rely upon safety in a third country, refugees have been bounced from country to country until they are bounced right out of Europe, without ever having had access to a refugee determination process. While the proposed Memorandum of Agreement between the USA and Canada offers somewhat greater protections than the European models, it and any similar agreements nevertheless remain fundamentally unacceptable until and unless there is a meaningful and enforceable international agreement with respect to minimum standards of refugee determination and a common interpretation of the Convention.

In addition to the safe third country provision, the Immigration Act currently contains other categories of people excluded from making a refugee claim. These exclusions put Canada at risk of violating its Geneva Convention obligations by depriving people with a well-founded fear of persecution of the right to have their refugee claim heard. Any exclusion provisions should be consistent with the Convention and evaluated by the Immigration and Refugee Board in the context of the refugee determination. This would not only be fairer, but probably more efficient, since the current eligibility procedures puts a considerable administrative burden on CIC but exclude only a tiny percentage of claims.

All of the eligibility provisions are of concern. The exclusion from the refugee claim process of persons against whom an exclusion order has been made has led to gross injustices, where refugees are denied access as a result of fear, ignorance or change of circumstances. The provision opens the door to abuses by immigration officers who have every opportunity during the private interview to intimidate potential claimants, or simply refuse to hear their clear request to make a refugee claim.

The eligibility provision excluding refugees who have been granted refugee status in another country does not provide for a claim against the country of first refuge. There is also always the risk that immigration officers will make mistakes about the person's status and entitlements in the country in question (in one case, for example, a person was turned away at the border on the basis that she had UNHCR status in a country of temporary refuge: needless to say this gave her no entitlements as far as the country was concerned).

Excluding persons who have returned within 90 days takes no account of the possibility of change of circumstances in the country of origin or the existence of new information. Concerns about an endless cycle of repeat claims could be dealt with by other means than a blanket bar. For example, second claims with no new information could be processed on an expedited basis by the Immigration and Refugee Board.

The security and criminality exceptions are inconsistent with the exclusion clauses in the Convention. The Canadian exceptions are very broad and may include refugees charged with a crime by a repressive regime using the charge as a technique of persecution. Furthermore, the Convention requires that the arguments for inclusion be considered before the exclusion arguments: the Canadian system improperly reverses this order. Canada therefore risks excluding from protection people who may deserve protection according to the terms of the Convention.

Finally, in the area of access, mention must be made of the inadequate and inequitable legal aid coverage. Although legal aid is not a matter within federal jurisdiction, the inadequacy of legal aid has a significant impact on refugee claimants' access to the federal refugee determination process and must therefore be taken into account by anyone reviewing the system.

At the end of the refugee determination process the absence of an appeal on the merits constitutes the most significant flaw in the process. The judicial review avenue is seriously inadequate because of the narrowness of the review, because it is by leave and because the body conducting the review is not specialized and expert in the area of refugee determination. The CCR has consistently called for a full appeal on the merits as a matter of fundamental justice. The following principles are essential to a successful appeal process: transparency of the process, competence and sensitivity of the decision-makers and accountability. Single-member panels at the first level are not a good idea, whether or not there is an appeal, as they would significantly reduce protection for refugees. To institute single-member panels without an appeal would be completely unacceptable, putting the fate of refugees in the hands of a single decision-maker.

The risk review has been found seriously wanting, in all of its incarnations since 1989. By giving the IRB the mandate to conduct the risk review for rejected refugee claimants, we would ensure an independent decision-maker with expertise in country conditions and international human rights standards and standards of procedural fairness. There is furthermore an advantage in terms of efficiency, since the Board is already familiar with the claimant's situation. However, it is important that the risk review be conducted after the refugee determination, and not before, as precedence must be given to the internationally recognized rights of refugees.


Family reunification

Family reunification is a central pillar of Canada's immigration program. It has widespread and deep support among the Canadian people, who recognize the primary ties that bind families together. The immediate family - spouses and children - clearly has the most compelling need for reunification. Where children are involved our special care and consideration are called for, the best interests of the child must be given primary place, and family reunification must be dealt with in a positive, humane and expeditious manner.

Yet families face extraordinarily long separations as a result of immigration policies and practices. Separations of wives from husbands, of children from parents regularly last years. The target of six months set by CIC for processing immediate family members is frequently exceeded. Over the last few years, an increasing number of measures have been adopted that create barriers, temporary or permanent, to the reunification of immediate families. These include the identity document provisions, more rigid requirements of proof of family relationship, and processing and Right of Landing fees. The problems are particularly acute for refugees, who did not choose to be separated from their families, often leaving spouses and children in situations of great risk. Refugee family reunification - or lack thereof - is an area in which Canada compares extremely unfavourably with other countries. It causes great surprise for non-Canadians to discover that Canada with its reputation for generous policies falls so far behind in terms of family reunification. A simple policy change could substantially resolve the problem, by giving automatic and immediate right for spouses and children of recognized refugees to come to Canada to rejoin their family member. It is done by other countries and there is no reason why it could not be done by Canada.

The narrow definition of family is also a matter of deep concern. One particularly brutal exclusion in the current régime is of children over 19 years, a provision that causes the most painful separation of families with young adult children. There is a need for flexibility in the definition of family, responding to individuals' own identification of family members closest to them.

It should be noted that the families of refugees are often in difficult and dangerous situations, with the result that those in Canada have a profound and urgent sense of responsibility for them. In many cases, the family members overseas may be left orphaned or isolated by deaths in war, imprisonment of caregivers, etc. The Canadian system needs to have the flexibility to allow those in Canada to be able to respond to the needs of family members in such situations.

Allowing families to reunite is a matter of justice and also good integration policy. Newcomers affirm again and again how much easier it is for them to settle into Canadian society when they have key family members here. A strong, supportive and flexible family immigration policy benefits us all.

Consultative process

The CCR is a broad-based coalition of some 140 organizations from across Canada. Our membership is diverse, including settlement agencies, ethnocultural associations, faith groups, lawyers associations, local and provincial associations working on refugee and immigration issues, and many other organizations with an interest in refugees and settlement. Our submission to the Advisory Committee is based on the one hand on our extensive experience in policy-formation, and on the other hand on a series of consultations held in the spring of 1997 with a view to eliciting input for the legislative review process.

The CCR's policies are established in resolutions, adopted at general meetings held twice a year and given preliminary review by our working groups. The resolutions and policy papers adopted from time to time benefit from the expertise of our cross-Canada network of people directly involved in refugee and immigration matters in their own areas. The CCR is also engaged in wide-ranging dialogue with both Citizenship and Immigration Canada and the Immigration and Refugee Board, following closely changes in policies and practices, giving advice in meetings, correspondence and committees, and offering opportunities for broad-based consultation with stakeholders.

Following the creation of the Immigration Legislative Review, the CCR encouraged member agencies to hold local consultations to gather input for the review. Meetings were held in Vancouver, Edmonton, Toronto, Ottawa and Montreal. A session was also held at the CCR spring conference in June. All of these consultations were attended by both CCR members and by others. Many people who have been through the immigration system, or are currently going through it, were included. The opinions and ideas gathered at these sessions informed the present submission.

One concern frequently raised in these consultations deserves to be mentioned here. The process by which the legislative review has sought public input is seriously inadequate, particularly given the breadth of the issues under review. We believe that there should be full and open consultations in any process considering changes to the Immigration Act.


RECOMMENDATIONS

GENERAL PRINCIPLES

1. Canada's immigration and refugee policy should be grounded in a vision of our country as open, responsible, fair and diverse.

2. Our international human rights obligations should guide immigration policy and practice. This means respecting individual rights, protecting refugees and other victims of human rights abuses and bringing to justice those who have committed war crimes and crimes against humanity.

3. Immigration and refugee policy should be situated in a global context and be in dialogue with our foreign policy. So, for example, the arrival of refugees in Canada should lead to Canadian action to address the root causes forcing them to flee. Canadian denunciation of mass human rights abuses in a particular country should influence decisions on whether to continue deportations to that country.

4. Integration of newcomers is affected by how immigration and refugee policy is framed. Policies should be developed with a view to promoting integration. The negative consequences in integration terms of control measures need to be carefully weighed.

5. Legislative amendments since the adoption of the current Immigration Act have been for the most part increasingly restrictive. The recent focus on criminality is unjustified and harmful to both immigrants and Canadian society as a whole. It is time to shift the emphasis away from enforcement concerns.

6. There is a need for greater accountability, due process and transparency in all decision-making under the Immigration Act.

7. Current policies need amendment in each of the three main immigration pillars:

- Families are kept separated (through delays, or because of the restrictive definition of the family class).

- Refugees are denied protection.

- The economic potential of immigrants is wasted by the barriers to full employment for newcomers.

8. Consultation and communication with stakeholders should be improved.

I. GENERAL ISSUES

Separate refugee policy from immigration policy

Refugees are people forced to flee persecution in their home countries. Canada has a fundamental obligation to offer refugees protection and to contribute towards offering a durable solution for refugees around the world. Canadian policy towards refugees needs to be guided by these international obligations. Refugee policy needs to be distinguished from immigration policy and should be designed to ensure that refugees receive the protection they need and are assisted in speedy integration into Canadian society.

Incorporate international human rights instruments

Refugee and immigration policy and practice must be consistent with our international human rights obligations. To ensure that these imperatives are respected, human rights instruments should be incorporated into the Act. The Convention on the Rights of the Child and the Convention against Torture should in particular be highlighted.

Decision-making by independent, transparent and accountable bodies

Many of the decisions made under the Immigration Act have very profound consequences on individuals' lives. In order that such decisions are fair, decision-makers must be independent, transparent and accountable. Reasons must be given for decisions. It is not acceptable to have decisions about people's lives made by unseen officials working with ill-defined discretionary powers. More authority should be given (or given back) to the IRB, which as an independent, quasi-judicial tribunal can offer protection of certain basic rights to due process.

II. FAMILY REUNIFICATION

We need a rebalancing of priorities in favour of family class immigration, which has been reduced too much in favour of economic immigration. Family reunification is first and foremost a matter of rights and humanitarianism. But promoting family reunification is also sound social policy, with positive economic consequences. Any calculation of the costs of family class immigrants needs to be balanced by a calculation of the costs of keeping families separate.

Recognize principle of family unity

The Act should formally recognize that family unity is the cornerstone of health and effective settlement for refugees and immigrants.

Speed up family reunification

The delays in family reunification are intolerable, particularly in certain regions of the world. Spouses and dependent children above all need to be quickly reunited. This could be achieved by reconceiving the process legislatively so that spouses and children have an automatic right to come immediately to Canada and complete any necessary processing inside Canada. A solution on these lines is especially important for refugees, who often leave family behind in situations of danger. Spouses and children of refugees should be granted "derivative status" allowing them to proceed to Canada immediately.

Eliminate financial barriers

Processing fees, Right of Landing Fee and financial criteria for sponsorship constitute significant barriers to family reunification. These barriers should be eliminated or at least reduced.

In the case of sponsorship of spouses and dependent children, financial criteria are not applied, yet there are nevertheless expectations that the sponsors will assume financial responsibility. This is an unrealistic and unfair expectation and should be ended.

Reduce length of sponsorship

The length of sponsorship should be reduced to 3 years. Ten year sponsorships create enormous burdens. They create unhealthy relationships of dependence and make people vulnerable to abuse. Severe hardships are caused by events beyond people's control: accidents, illness, loss of employment, etc. It is in addition unfair that some Canadian citizens should be denied benefits to which others are entitled and towards which they contribute in taxes.

Expand the definition of family

A more inclusive, culturally-sensitive definition of family is required, preferably one that allows sponsors to themselves identify their close family. The current definition of family excludes many family members considered part of the integral family. Of particular concern are:

- Children over 19 years who are still considered part of the family (eg unmarried daughters who in many societies only leave home to get married).

- De facto family members

It should be noted that the families of refugees are often in difficult and dangerous situations, with the result that those in Canada have a profound and urgent sense of responsibility for them. In many cases, the family members overseas may be left orphaned or isolated by deaths in war, imprisonment of caregivers, etc. The Canadian system needs to have the flexibility to allow those in Canada to be able to respond to the needs of family members in such situations.

Solve identification barriers

The Act should recognize that many people do not have access to identity documents of Canadian standards to establish family relationship and should direct that such people not be discriminated against (e.g. with demands for DNA testing). Alternatives should be used, such as affidavits.

Process inland

Spouses already in Canada should be processed inland on a systematic basis.

Allow visits with families

The Immigration Act should protect the right of Canadian citizens, permanent residents and Convention Refugees in Canada to visit with their families, particularly in cases of medical crisis or death. Visitors visas should be issued to family members wishing to visit in Canada. Travel documents should be issued to those in Canada who wish to travel abroad to visit with family.

Maintain unity of families in removals

Canada should not separate families through its removals (e.g. by removing someone whose spouse is still in the refugee claim process, or by removing members of a single family to different countries where they have no right to remain together).

III. REFUGEES

Include reference to gender-related persecution

The Act should be amended to recognize that gender-related persecution is included in the Convention Refugee definition.

Reform interdiction measures

The Act should prohibit any action by the Canadian Immigration Department, in Canada or overseas, that may result in a refugee being returned to persecution. Carrier sanctions should be dropped or amended so as not to prevent refugees entering Canada seeking asylum. People should not be subject to fines for aiding undocumented refugees.

Ensure access to refugee determination system

People should not be excluded from making a refugee claim simply because a removal order has been made out against them. All those who make a refugee claim should be referred for a hearing before the Immigration and Refugee Board. Any issues of eligibility should be addressed by the IRB. The Safe Third Country provision should be dropped and all negotiations with the USA regarding the Memorandum of Agreement called off.

Reform eligibility criteria

The current eligibility provisions need to be amended to conform to the Geneva Convention.

Right of counsel

Right of counsel should be guaranteed at all points in the process, including the port of entry interviews. Measures must be taken to ensure that this right is effective, and not made meaningless by the inadequacy or absence of legal aid coverage.

Give claimants the benefit of the doubt

All claimants should have the benefit of the doubt. Provisions calling for unanimous decisions in cases of safe country of origin or of destroyed ID should be repealed.

Provide opportunity for appeal

Refugee claimants must be given the right to an appeal on the merits from a negative determination. In any appeal process, the principles of transparency, competence and sensitivity of the decision-makers and accountability are crucial. Judicial review should be as of right (and not by leave only). Claimants should have the same access to the courts as nationals of the country. Appeals and judicial review should have suspensive effect. Right of review should continue up to the point of removal, to allow new information or changes in circumstance to be considered.

Give a meaningful risk review

Risk review should be included in the mandate of the IRB. Determinations should be made after refugee determination, and not before. The assessment should be founded on the principle that persons should not be removed where there is a serious possibility of violations of their fundamental rights.

Overseas selection of refugees

The criterion of "likelihood of successful establishment" should be removed for refugees. This is particularly important in cases of urgent need of protection, especially refugee women. The Act should establish basic principles for the overseas determination of refugees, recognizing this as a means of protection. Principles of fundamental justice should be protected, including the right of appeal.

IV. LANDING

ID requirement

The requirement for identity documents should be dropped for Convention Refugees and others in refugee-like situations.

Admissibility criteria

S 19(1)(b) (ie. inability to support themselves) should not be applied to single mothers and other women with children.

V. REMOVALS

Judicial remedy

Anyone faced with removal should have adequate access to a judicial remedy, whereby an independent body would review whether the person should be removed. Measures should be taken to ensure that the unavailability or inadequacy of legal aid does not function as an effective barrier to access to this remedy.

Criteria for removal

No one should be removed if:

- there is a serious possibility of violation of their fundamental rights;

- they are to be removed to an intermediate country which may indirectly lead to violation of their fundamental rights;

- they have been in Canada for five years or more, unless they are guilty of serious violent crimes or have engaged in crimes against humanity;

- they have entered into a marriage-like relationship with a Canadian or permanent resident, unless it can be shown that the relationship was entered into for the sole purpose of preventing removal;

- the person has dependants in Canada who are citizens or permanent residents of Canada.

Moratoria

There should be a fair, transparent, accountable mechanism for deciding which countries are so unsafe that there should generally not be removals of their citizens.

Humanitarian and compassionate grounds

H&C should be rights-based and subject to no discriminatory barriers (ie. fee for application).

Public danger certificates

The current process is unfair and should be amended to ensure respect of fundamental rights. Right of appeal to the Immigration Appeal Division should be fully reinstated. If there is to be any limitation on the right of appeal to the IAD such limitation should at least be confined to cases involving serious crimes and the process should ensure that human rights are respected.

Security and criminality provisions

Provisions excluding persons on the basis of criminality or security concerns should be amended to respect fundamental justice.

Conditions of removal

When removals are effected, the persons should be given a reasonable period within which to arrange their affairs prior to removal. The dignity of the person must be respected in the removal process.

VI. DETENTION

There should not be arbitrary detention. Detention of refugee claimants should be avoided and the UNHCR guidelines on detention respected. A cap should be placed on indefinite detentions. The Act should establish some minimum standards for the conditions of detention.

VII. COMPLAINTS MECHANISM

In recognition of the need for the protection of the rights of those affected by the Act, some form of ombudsperson should be established under the Act. This office should be clearly independent and should have authority to investigate complaints against CIC and to monitor treatment of individuals, particularly at points where they are vulnerable to abuse (e.g. port of entry interviews, or in removal).


APPENDIX: Documents forwarded to the Legislative Review Committee

Refugee Family Reunification: Report of the Task Force on Family Reunification, July 1995

Comments on the Draft Amendment to the Immigration Regulations published in the Canada Gazette, Part I December 23, 1995 [family class regulations], January 1996

Letter to Minister of Citizenship and Immigration, June 1997 [re. family class regulations]

Women at Risk: Developing Recommendations, November 1994

Private Sponsorship of Refugees Programme: Future Directions, January 1994

Project Report on the Private Sponsorship of Refugees Program: Comments, February 1994

An Uncertain Welcome: Refugees at Canada's Visa Posts, April 1996 / Accueil incertain des réfugiés aux bureaux des visas canadiens, avril 1996

Canada-US Agreement on Examination of Refugee Claims: Comments, February 1996

Comments of Abolition of DROC, February 1997

Comments on PDRCC Regulations, February 1997

Comments on Proposed Regulations Creating the Undocumented Convention Refugees in Canada Class, December 1996

Refugees and Identity Documents, October 1996 / Les réfugiés et les documents d'identité, octobre 1996

Position sur l'Appel, la Révision des revendications refusées et les motifs humanitaires, février 1994 / Position on Appeal, Post-claim Review and Humanitarian and Compassionate Grounds, February 1994

Position on Essential Principles in Response to Hathaway & Davis/Waldman Reports, September 1994

Problems on the Path to a Just Society: A Human Rights Analysis of Canadian Immigration Detention Law and Practice, June 1990

Deportation Policy, November 1992 / Politique relative à l'expulsion, novembre 1992

Brief to the Parliamentary Standing Committee on Citizenship and Immigration for the Study of Gender-Related Claims, March 1995 / Mémoire au Comité parlementaire permanent de la citoyenneté de de l'immigration pour l'étude des revendications du statut de réfugié liées au sexe, mars 1995

Report to Consultation on Gender Issues and Refugees, December 1993

Impact of the Right of Landing Fee, February 1997 / Conséquences du droit exigé pour l'établissement, février 1997

Jul 1997