OAS Rights Body Rules Canada Must Give Individualized Determination to Refugee Claimants

Canadian Council for Refugees
Amnesty International Canada
Harvard Immigration and Refugee Clinic
Harvard International Human Rights Clinic
Vermont Immigration and Asylum Advocates 

Press release

For immediate release

April 14, 2011

OAS Rights Body Rules Canada Must Give Individualized Determination to Refugee Claimants

Decision by Inter-American Commission on Human Rights Finds that Canada Violated American Declaration on Human Rights by Summarily Returning Refugee Claimants to US

A group of organizations today welcomed the final decision of the Inter-American Commission on Human Rights upholding a complaint made concerning the forced return of three refugee claimants to the United States in 2003.
The Inter-American Commission on Human Rights (IACHR) ruled that Canada violated its human rights obligations when it returned the three refugee claimants to the US without first providing individualized review of their asylum claims. The claimants were returned to the US under Canada’s ‘direct back’ policy.

“The Inter-American Commission spoke quite clearly here,” said Janet Dench, Executive Director of the Canadian Council for Refugees. “Canada cannot simply turn refugee claimants away at our borders. We have an obligation to assess each case individually, so that we can take into account what might happen to them if we send them away. This is an important decision, not just for Canada but internationally.”

The complaint concerns a revised ‘direct back’ policy adopted in January 2003. It led to hundreds of refugee claimants being summarily sent back from Canada to the US, where many of them were jailed. The impact on the lives of refugees created widespread consternation and received significant media coverage at the time. Many of the claimants were of nationalities that had been targeted by discriminatory registration programs in the US.

The petition presented the cases of three men returned to the United States as examples of the impact of the policy. They were sent back without Canada seeking assurances from the US that they would be allowed to return to Canada for consideration of their refugee claims. Nor did Canada provide any individualized consideration of the likelihood that the men would be returned by the US to dangerous conditions in their countries of origin.

The Inter-American Commission found, as the petitioners had contended, that the men were taken into custody in the United States, held in an ordinary jail facility and then deported to their countries of origin. One of the three men, an Albanian national, later managed to return to Canada directly from his home country. His refugee claim was subsequently accepted by Canadian authorities.

In its decision, the Inter-American Commission clarified the obligations that governments must fulfill with regard to refugees. With regard to applicants who arrive from a third country (such as the United States), the Commission clarified  that “before removing a refugee claimant to a third country, [a country] must conduct an individualized assessment of a refugee claimant’s case, taking into account all the known facts of the claim in light of the third country’s refugee laws.”

“This decision is a critical recognition of the principle of non-refoulement under Article 33 of the Refugee Convention,” said Deborah Anker, Clinical Professor of Law and Director of the Harvard Immigration and Refugee Clinical Program. “Any regulation of the Canada-U.S. border must account for each nation’s serious and longstanding obligations under the Refugee Convention.”

While the decision does not directly address the application of the Safe Third Country Agreement (STCA) between Canada and the United States, its findings have significant implications for this matter. Refugee claimants rejected under the STCA are also returned to the US without the individualized assessments required by this decision.

In this case, entitled John Doe et al. v. Canada (Case 12.586), the Inter-American Commission considered a petition filed by a consortium of organizations including the Canadian Council for Refugees, Vermont Immigration and Asylum Advocates  (formerly Vermont Refugee Assistance), Amnesty International and two clinics from Harvard Law School.  After years of litigation, the Inter-American Commission on Human Rights made its decision public earlier this week.

For further information, please contact:
Colleen French, Canadian Council for Refugees: 514 277-7223 ext. 1, cfrench@ccrweb.ca

Prof. Deborah Anker, Harvard Law School: 617-584-2974; danker@law.harvard.edu

Prof. James Cavallaro, Harvard Law School: 617-669-8606; cavallaro@law.harvard.edu

Beth Berton-Hunter, Amnesty International Canada: 416-363-9933 ext. 332, 416-904-7158 (cell)

Patrick Giantonio, Vermont Immigration and Asylum Advocates: 802-864-3200

See also:

Decision of the Inter-American Commission on Human Rights: http://ccrweb.ca/sites/ccrweb.ca/files/iachrdecision_johndoe.pdf

Petition to Inter-American Commission on Human Rights: http:/ccrweb.ca/IACHRpet.PDF, 31 March 2004

Rights Groups Urge OAS to Declare Canadian Refugee Policy a Rights Abuse, Canadian Council for Refugees media release, 1 April 2004: http://ccrweb.ca/petition.html

Refugee claimants sent back to detention in US, Canadian Council for Refugees media release, 31 January 2003: http://ccrweb.ca/directbacks.html