Canada, the rights of the child and refugee and immigrant children

A. First report of the UN Committee on the Rights of the Child on Canada, 1995

The Committee regretted:

• “That the principles of non-discrimination, of the best interests of the child and of the respect for the views of the child have not always been given adequate weight by administrative bodies dealing with the situation of refugee or immigrant children.” (#13)
• “The resort by immigration officials to measures of deprivation of liberty of children for security or other related purposes” (#13)
• “The insufficient measures aimed at family reunification with a view to ensuring that it is dealt with in a positive, humane and expeditious manner.” (#13)
• “The delays in dealing with reunification of the family in cases where one or more members of the family have been considered eligible for refugee status in Canada as well as cases where refugee or immigrant children born in Canada may be separated from their parents facing a deportation order.” (#13)

The Committee recommended:

• “That the State party pay particular attention to the implementation of article 22  of the Convention [children seeking refugee status] as well as of the general principles of the Convention, in particular the best interests of the child and respect for his or her views, in all matters relating to the protection of refugee and immigrant children, including in deportation proceedings.” (#24)
• “That every feasible measure be taken to facilitate and speed up the reunification of the family in cases where one or more members of the family have been considered eligible for refugee status in Canada. Solutions should also be sought to avoid expulsions causing the separation of families, in the spirit of article 9 of the Convention.” (#24)
• “[That the State party] address the situation of unaccompanied children and children having been refused refugee status and awaiting deportation in the light of the Convention's provisions. Deprivation of liberty of children, particularly unaccompanied children, for security or other purposes should only be used as a measure of last resort in accordance with article 37 (b) of the Convention.” (#24)

Full report

The Committee was worried:

• “About the increase of foreign children and women trafficked into Canada.” (#52)

The Committee was concerned with respect:

• “[To the] allegations that children of migrants with no status are being excluded from school in some provinces.”  (#44)
• “To the absence of :

1. 1. A national policy on unaccompanied asylum-seeking children;
   2. Standard procedures for the appointment of legal guardians for these children;
   3. A definition of “separated child” and a lack of reliable data on asylum-seeking children;
   4. Adequate training and a consistent approach by the federal authorities in referring vulnerable children to welfare authorities.” (#46)

The Committee encouraged:

• “The State party to ensure that a coherent and comprehensive rights‑based national plan of action is adopted, targeting all children, especially the most vulnerable groups including Aboriginal, migrant and refugee children; with a division of responsibilities, clear priorities, a timetable and a preliminary allocation of necessary resources in conformity with the Convention at the federal, provincial, territorial and local levels in cooperation with civil society.”  (#13)
• “The State party pay particular attention to the full implementation of article 4 of the Convention by prioritizing budgetary allocations so as to ensure implementation of the economic, social and cultural rights of children, in particular those belonging to marginalized and economically disadvantaged groups, “to the maximum extent of … available resources”.  (#18)
• “That the principle of “best interests of the child” contained in article 3 be appropriately analysed and objectively implemented with regard to individual and groups of children in various situations (e.g. Aboriginal children) and integrated in all reviews of legislation concerning children, legal procedures in courts, as well as in judicial and administrative decisions and in projects, programmes and services that have an impact on children.” (#25)
• “That the State party take further measures in accordance with article 7 of the Convention, including measures to ensure birth registration and to facilitate applications for citizenship, so as to resolve the situation of stateless children.  The Committee also suggests that the State party ratify the Convention relating to the Status of Stateless Persons of 1954.” (#27)
• “That the State party undertake measures to ensure that all children enjoy equally the same quality of health services, with special attention to indigenous children and children in rural and remote areas.” (#35)
• “[The State party to ensure] that free quality primary education that is sensitive to the cultural identity of every child is available and accessible to all children, with particular attention to children in rural communities, Aboriginal children and refugees or asylum-seekers” (#45a)
• “That the State party:

3. Refrain, as a matter of policy, from detaining unaccompanied minors and clarify the legislative intent of such detention as a measure of “last resort”, ensuring the right to speedily challenge the legality of the detention in compliance with article 37 of the Convention;
4. Develop better policy and operational guidelines covering the return of separated children who are not in need of international protection to their country of origin;
5. Ensure that refugee and asylum-seeking children have access to basic services such as education and health and that there is no discrimination in benefit entitlements for asylum-seeking families that could affect children;
6. Ensure that family reunification is dealt with in an expeditious manner.” (#47)

Full report

1. Best interests of the child

Many immigration decisions affecting children continue to be made without appropriate (or in some cases any) consideration of the bests interests of the child.  One of the results is that children are separated from their parents or denied family reunification.  For more information, see the report: The  understanding and application of “Best Interests of the Child”in H & C decision-making by Citizenship and Immigration Canada, September 2008.1

2. Family reunification

Many refugees families are force to wait years for family reunification, at enormous cost to the children and in violation of Canada’s obligations to deal with family reunification in a “positive, humane and expeditious manner”.  Children in Africa and parts of Asia face particularly long waits.  In 2008, half of the refugee family reunification cases processed at the Nairobi visa office took more than 22 months.  In Colombo, half took more than 30 months.2  DNA tests are frequently demanded and  are expensive and time-consuming. Some refugees face specific barriers, such as families affected by the “excluded family member” rule (Regulation 117(9)(d)).  Separated children recognized as refugees have no right under the law to reunification with their parents and siblings.

3. Children in detention

Even though the Immigration and Refugee Protection Act provides that children should only be detained “as a measure of last resort”, significant numbers of children spend time in immigration detention in Canada, some with a parent and some unaccompanied.  In December 2008, 61 children were detained, 10 of them unaccompanied children.  In the summer of 2008 an 11-year-old girl spent a month in immigration detention in Montreal after having been identified as a possible victim of trafficking.  She spent part of that time in isolation.

4. Lack of national policy for separated children claiming refugee status

Despite the clear recommendation from the UN Committee, Canada has still not developed a national policy for separated children claimants, leading to some of these extremely vulnerable children falling between the cracks.  The government does not even keep reliable statistics on how many separated children are making refugee claims.

5. Children in poverty

Refugee and immigrant children experience high rates of poverty in Canada.  Many are from racialized families that are over-represented among the poor.  A January 2007 Statistics Canada study found a high proportion of recent immigrants faced chronic low income, even though more immigrants are arriving in Canada with high professional skill levels.3  Refugees face particular burdens.  For example, the Canadian government expects resettled refugee families to pay for their transportation to Canada, with the result that these families spend their first years in Canada trying to pay off of debt of up to $10,000.  Children in these families are often under pressure to work to contribute to repaying the loan.4  Other families, such as those from moratorium countries who remain for years without permanent residence, are denied the Canada Child Tax Benefit.

6. Lack of protection for trafficked children

Canada lacks effective policies and programs to protected trafficked persons, including trafficked children.  The only place in the Immigration and Refugee Protection Act where trafficked persons are mentioned is in the regulation which includes having been trafficked as a factor in favour of detention, including for children.  There is nothing in the law to protect the rights of trafficked persons specifically.  As a result, an 11-year-old girl spent a month alone in detention in 2008.5

7. Stateless children

Canada has still not ratified the Convention relating to the Status of Stateless Persons of 1954. Worse, changes to the Citizenship Act approved in 2008 increase the risk that children of Canadian citizens will be born stateless.6

March 2009

Notes