GENERAL COMMENTS
The issues tackled by the Standing Committee in their report Immigration Detention and Removals are complex and controversial, qualities that make such a study within the very limited timeframe available to the Committee a significant challenge. In this respect, the CCR is pleased that the Committee was able to highlight so many points of importance.
The CCR in particular welcomes the Committee's recognition of:
- the importance of liberty as a fundamental principle
- the need to respect the dignity of all persons
- the arbitrariness of current decision-making in regard to detention
- the unacceptable nature of detention conditions, particularly in Toronto
- the importance of independent decision-making in matters concerning fundamental rights
- the need to ensure the respect of Canada's international human rights obligations.
The CCR also fully supports the Committee's conclusion that Canada's problems with immigration enforcement are not as extreme as suggested by the report of the Legislative Review Advisory Group, Not Just Numbers. The CCR likewise agrees with the Committee's rejection of the key Not Just Numbers' recommendations to create a provisional status and tie non-compliance with detention.
Unfortunately, the Committee's report also betrays in a number of places a certain lack of understanding of the issues. The CCR regrets that it and other witnesses before the Committee were not given the opportunity to comment on some of the recommendations being considered by the Committee before they were finalized, since the report would have benefitted from greater perspective in a number of areas.
It is also unfortunate that the quality of the French version leaves something to be desired, with some passages being difficult to understand without reference to the English.
DETENTION
The CCR fully supports the Committee's call for:
- reduced detention
- measures to ensure greater consistency in decision-making
- the release of detainees after a specified time if, through no fault of their own, removal is not imminent (note the New Zealand Immigration Act makes 28 days the maximum period of detention possible).
- significant improvements in detention conditions, particularly in Toronto
- a greater role for NGOs within detention centres
- special provisions for detained children
- greater efforts to ensure that detainees are informed about their situation and their rights
- who may have been fully willing to give their name and all details may be counselled to give the (false) name of the holder of the passport on which they travelled simply to avoid being detained.
The link with the proposed scanning of documents for passengers arriving by plane shows great confusion about the issue (and ignores the fact that a significant proportion of arrivals occur at the U.S.-Canada border, rather than by plane). People who board using a document and have no document on arrival are very likely to have been using false papers. Matching the person with a scanned version of the false document will not do anything to establish the person's identity.
A fundamental problem with the discussion is the complete failure to identify the alleged problem, evaluate its extent and analyze whether the proposed solution would do anything to address the problem. The issue of identity is a complex one: the biggest current problem is that the Immigration Act as amended in 1993 requires Convention Refugees to have identity documents to be landed, making landing impossible for people who are unable to get "satisfactory" documents. This particularly affects Somalis and others who have no government that could issue documents. Putting such people in detention on arrival will do nothing to "establish their identity". On the other hand, many people who on arrival are without any identity documents are able to have documents sent to them, often by family members in the home country, shortly after their arrival. Again, detaining such people on arrival would gain no advantage, but would deprive people of a fundamental right and further traumatize refugees, who are fleeing unjust imprisonment or other human rights abuses.
REMOVALS
Interdiction
The CCR totally opposes the Committee's recommendation to increase measures of interdiction, which violate refugees' right under Article 14 of the Universal Declaration of Human Rights, "to seek and to enjoy in other countries asylum from persecution". People seeking to escape persecution by fleeing their country are often forced to use false or inadequate documentation, or have no documentation at all. The interdiction measures (i.e. measures to block "improperly documented travellers") already put in place by Canada and other countries prevent people from escaping from persecution and lead to the imprisonment or refoulement of refugees.
The Committee's alternative for refugees (that they seek protection at Canadian embassies) is almost completely illusory and shows a disturbing lack of concern for the lives of people fleeing persecution and for Canada's humanitarian and human rights obligations.
Interdiction measures also have a negative impact on travellers, including visitors to Canada and Canadian citizens and permanent residents who find themselves coming under suspicion, often simply on account of their colour or ethnic origin.
The Committee also recommends increased efforts to combat human smuggling, without ever addressing the fact that it is above all the interdiction measures of countries like Canada that create the conditions for human smuggling, and force refugees to have recourse to often exploitative smugglers. The harsher the interdiction measures put in place, the higher the price charged to desperate refugees attempting to flee persecution.
The CCR has recently published a document Interdicting Refugees which explores interdiction measures and their effects on refugees.
Pre-removal issues
The CCR supports the Committee's identification of many of the main problems in Citizenship and Immigration Canada's system for determining who should not be removed.
We welcome the recognition of the inadequacy of the current Risk Review. The CCR also believes that the review could be more appropriately and more efficiently conducted by the Immigration and Refugee Board. We note the need at the same time to correct the profound problems in the definition of risk.
The Committee also recognizes the serious problems in the system of humanitarian and compassionate reviews. While it may be a good idea to have these conducted by the Immigration and Refugee Board, which could offer independent decision-making, the Committee's rationale - that many applicants are refugee claimants - is unconvincing. In fact the majority of those accepted on H&C are accepted on the basis of family connections (spouses predominantly) and although some may be refugee claimants, many are not. The Immigration and Refugee Board has three distinct divisions: H&C decision-making might appropriately be made the responsibility of the adjudication division.
The CCR welcomes the Committee's call for quicker decision-making in H&C cases and for the best interests of the child to be given more consideration.
While the CCR shares the Committee's concerns about the functioning of the Advisory Committee on Country Conditions for Removal, we believe that the problems are considerably broader than suggested by the Committee, which has perhaps not fully understood the criticisms made by witnesses. At least as problematic as the criteria used by the Advisory Committee is its functioning, which as the Not Just Numbers report notes, lacks transparency (p. 119).
The Committee recommends that Canada exercise great caution in removing persons when it has been requested not to do so by an international human rights body. The call for greater respect of decisions of international bodies is most welcome, but we cannot support the Committee's contention that in some cases removals should take place notwithstanding a request from such a body. The Committee argues that a removal should occur when it would shock Canadians for the person not to be removed. We on the contrary are shocked that elected representatives of Canada, a country that prides itself on leadership in the promotion of international respect for human rights, should advocate the deliberate flouting of requests by international human rights bodies.
Conduct of Removals
The CCR supports the recommendations of the Committee, reinforcing recommendations made earlier by Roger Tassé, to develop a Code of Ethics for enforcement officers and to create an independent oversight body to deal with complaints. If implemented, such recommendations might go some way towards addressing the potential for abuse that exists within the Immigration Enforcement division, whose officers deal with an extremely vulnerable portion of the population and yet are the only officers in Canada with the power of arrest that are subject to no independent oversight.
It is however unfortunate that the Committee proposes that the oversight body be limited to receiving complaints after internal avenues have been exhausted. The CCR believes on the contrary that to be effective the oversight body would need to have powers and duties that allowed it to play an active role in monitoring the policies and practices of Enforcement officers. Many of those vulnerable to abuse in the process of removal are being sent thousands of miles away from Canada and are most unlikely to be able to even make a complaint, let alone exhaust internal avenues of complaint.
Roger Tassé's report, Removals: Processes and People in Transition, contained many other recommendations that continue to be extremely relevant. It is in itself significant how little follow up has been given to the Tassé report, completed over two years ago (February 1996). It is surprising that the Committee did not examine why the Department has not adopted those proposals, and also that it did not comment on the Not Just Numbers' recommendation (Rec. 153) that the Minister verify the implementation of many of the key Tassé recommendations.