Other immigration

PROTECT REFUGEES FROM BILL C-31

The Justice for Refugees and Immigrants Coalition (comprised of Amnesty International, the Canadian Association of Refugee Lawyers, the Canadian Civil Liberties Association, and the Canadian Council for Refugees) supports an immigration system that is fair, independent of political considerations, and affordable. Bill C-31 is unconstitutional, undermines our humanitarian traditions, and violates our international obligations - it should be withdrawn.

Bill C-31 is bad policy.  It creates a manifestly unfair system for deciding refugee claims and gives Ministers broad, unfettered and unprecedented powers.  The concentration of enormous and vaguely defined powers in a Minister, with no mechanisms of judicial accountability, displays a dangerous inclination away from the rule of law and principles of responsible and democratic governance.

This omnibus bill rolls together the earlier bills C-4 and C-49, elements of the Balanced Refugee Reform Act, and additional provisions. The resulting Bill C-31 would detain groups of refugees, keep families apart, undermine the refugee claim and protection process, introduce the use of biometrics, and authorize the stripping of permanent residence from refugees. Without proper time for scrutiny and discussion, the bulky and complex nature of Bill C-31 inhibits the detailed analysis necessary in an area where constitutional and international compliance is required. It will also prevent informed public debate of what is a dramatic shift away from the Canadian tradition of welcoming the stranger in our immigration policy. The government is rushing Bill C-31 without enabling time for adequate consideration and debate.

The proposed legislation will negatively impact our refugee and immigration system.

1. Hasty timelines deny refugees a fair chance to prove their claims

Bill C-31 imposes unrealistic deadlines on all refugee claimants. A failure to meet deadlines may disqualify claimants, without affording them a fair and reasonable opportunity to establishtheir refugee claims.

• Refugees Claimants will have 15 days to deliver a written version of the basis of their refugee claim. This is not enough time for newly-arrived refugees to seek legal advice, respond to complicated legal requirements and gather the evidence to prove their claim.
• Refused claimants will have 15 days to complete an application to appeal an initial refusal. This is an impossibly short deadline, and will render illusory the availability of an appeal to correct mistakes made by the Immigration and Refugee Board.

Bill C-31 allows the government to remove refugee claimants whose claims were not accepted without a Pre-Removal Risk Assessment. Unlike the Balanced Refugee Reform Act, there is no assurance of a fair, accessible appeal to catch errors made at the first level.  There will now be an unfair claim process and an unreliable appeal.  There will be a much greater risk of refugees being deported to a serious risk of persecution.

2. The revised process for designating certain countries as "safe" eliminates an expert, independent advisory body that would have guarded against countries being designated on the basis of erroneous or irrelevant political, trade and other considerations.

Bill C-31 gives the Minister broad powers to designate refugee source countries as “safe”. The Minister's opinion is not dependent on expert opinion regarding country conditions, nor need the Minister take account of the differential risk faced by certain minorities in a country that is ‘safe’ for some, but not for others. This renders the process susceptible to becoming a political tool at the expense of ensuring that genuine refugees are recognized and protected. If a country is designated as “safe”, claimants will be subject to an expedited claim process that denies them a reasonable opportunity to prove their refugee claims. They will also be immediately removable without a right of appeal, thus increasing the possibility that those facing a legitimate fear of persecution will be deported.

3. The Bill gives the Ministers of Citizenship and Immigration, and Public Safety and Emergency Preparedness, extensive powers to imprison refugee claimants, to deny refugees the ability to reunite with family members and tostriprefugees of secure legal status.  Bill C-31 also minimizes the opportunity for judicial oversight of the exercise of these extraordinary powers.

The Bill will give the Minister of Public Safety broad, vague and subjective discretion to designate two or more foreign nationals as a group of 'irregular arrivals' based on administrative convenience or suspicion of “smuggling”. The consequences of this designation will include the following:

• mandatory, warrantless, automatic, unreviewable one-year detention for all persons aged 16 or older;
• discretionary power to detain children under 16, or to forcibly separate them from accompanying parents for one year;
• 'irregular arrivals' who make successful refugee claims will be denied access to permanent resident status for a minimum of five years. During this 5+ year  period, refugees will be:
  • prohibited from applying to reunite in Canada with spouses and children; this means that actual reunification will be delayed for approximately 6-8 years after their grant of refugee status;              
  • required to report regularly to immigration authorities for questioning and to produce documents - the scope, purposes and uses of these inquiries is undefined;          
  • prohibited from travelling outside Canada for any reason.

The Bill’s proposed mandatory, warrantless, unreviewable year-long detention is patently unconstitutional. The Supreme Court of Canada decided this issue in the clearest of terms. As well, the Minister of Immigration could use the 5+ year period to revoke refugee status in certain circumstances; this prolongs insecurity and creates fear that the government could use the reporting requirement to find reasons to strip them of refugee protection.

4. The Bill makes permanent residence status for resettled and in-land refugees precarious and insecure, placing hundreds of thousands of refugees who have resettled in Canada at risk of deportation.

Bill C-31 permits the Minister to seek to revoke an individual’s refugee status anytime up until they gain citizenship, which will in turn result in the automatic rescission of permanent resident status and removal from Canada.

Bill C-31 undermines our commitment to resettle refugees and provide them with the security of permanent residence. Even if they are a permanent resident, the Minister can apply at any time for a finding that a refugee is no longer at risk in his or her former country. If the Minister is successful, the refugee will automatically lose both refugee status and permanent residence and will be immediately deportable from Canada. This provision will apply equally to those who made claims in Canada and those who were resettled here by the government or by private sponsorship groups like churches or cultural associations.

Someone who came to Canada under a refugee resettlement program over a decade ago and who has spent years building a life and family in this country could be stripped of his or her status and deported with no right of appeal.

The authority of the Minister to seek revocation is unconstrained by any stipulated criteria. Regardless of how often the Minister exercises this power, the threat of refugee status revocation and expulsion will hang over the heads of all refugees who have permanent residence but do not yet have citizenship. They will be denied the security that Canada has traditionally afforded refugees. This is inconsistent with Canada’s international legal obligations.

This status-stripping provision reverses a fundamental objective of Canada’s long-standing refugee policy to promptly integrate refugees in order to get on with lives and to fully contribute to Canadian society.

5. The Minister's references to "bogus" claims are an egregious misrepresentation.

The Minister has repeatedly referred to refused claims as “bogus.” This is not true. The refugee definition is very technical. Many failed claimants come with a genuine fear of persecution but may not meet the definition of a refugee.  Their search for protection is genuine. Constant references to refugee claimants as “frauds” or “bogus” or “abusers” undermine the independence of Canada’s refugee system.  They also undermine confidence in the system’s capacity to render fair and correct decisions. 

6. Canada’s humanitarian safety net is gravely weakened.

Canada has long recognized that a broad humanitarian consideration process is necessary to preserve the flexibility of our protection system. Barring access to this is contrary to our humanitarian tradition.

As a coalition, we recognize the need to achieve a fast, fair and effective refugee system. We urge the government to:

1. Withdraw Bill C-31.
2. Implement the Balanced Refugee Reform Act, which was passed with the unanimous approval of parliament, subject to the qualifications below. 
3. Eliminate the 15 day disclosure interview which all parties, including the government, agree would be costly and ineffective.
4. Impose reasonable time limits for the initial delivery of claim information and for the filing of an appeal. Reasonable time limits of thirty days, rather than the fifteen currently proposed, will not appreciably delay the claim process and will assure Federal Court judges, Canadians, and international observers that Canada’s refugee system is capable of producing fast and reliable refugee decisions.

10 reasons to be concerned about proposed amendments to Immigration and Refugee Protection Act (IRPA) in Bill C-50

1. Arbitrary power

The amendments give too much arbitrary power to the Minister to make up the rules as she goes along. 

With these amendments, the Minister can introduce “instructions”, without Parliamentary oversight or mandatory consultations.  The instructions will make important changes to which immigrants are processed and accepted.  Having the rules for who gets in made and changed by ministerial fiat creates uncertainty, lacks transparency and makes the immigration selection process vulnerable to inappropriate political pressures.

2. Applicants’ legal right eliminated

The amendments eliminate the right to permanent residence for applicants who meet the requirements of the Act.

The proposed amendment in IRPA s. 11 from “the visa shall be issued” to “the visa may be issued” dramatically reduces the rights of applicants.  The current wording allows an applicant to seek the intervention of the courts if Citizenship and Immigration Canada is not meeting its responsibility to process the application and issue a visa, if the applicant meets the requirements of the law.  Under proposed amendment, the applicant will no longer have the same legal basis to demand that the processing be finalized in a timely manner.  This applies to all applicants, whether in Family Class, Economic Class or Refugee Class.

3. Overseas humanitarian and compassionate applications

The amendments eliminate the right to have an overseas application for humanitarian and compassionate (H&C) consideration examined.  Instead, the law will permit such applications to be returned unexamined or simply shredded.

Currently, H&C is the only recourse for many people with compelling reasons for seeking permanent residence in Canada.  This includes cases involving family reunification for children (e.g. families separated by the “excluded family member” rule, Regulation 117(9)(d), and refugee children in Canada whose parents are overseas). 

The government has suggested that they do not intend to use the shredding option for family-related H&C applications. However, the amendments permit the shredding of these applications, so this remains a possibility, under this or a future government.

4. Intentions are not law

The government has made a number of statements about how they intend or don’t intend to use the new powers that the amendments will give them.  Expressions of current intention are no protection against future uses of the powers in very different ways.

Recent experience with IRPA s. 117 shows the dangers of relying on ministerial promises.  When IRPA was debated in Parliament, the Minister promised that s. 117, which criminalizes people smuggling, would never be used against humanitarians helping refugees.  Despite those promises, in 2007, a church worker, Janet Hinshaw-Thomas, was arrested and charged with people smuggling under s. 117 for accompanying refugees to the Canadian border.

5. The amendments do not belong in the budget bill

IRPA amendments should not be included in the budget bill, but rather dealt with through separate legislation, studied by the Standing Committee on Citizenship and Immigration and debated on their own merits.

6. Lack of explanatory information

The government has failed to provide adequate information to explain the proposed changes, leading to widespread confusion and uncertainty.  It is regrettable that the Minister, rather than providing clearer supporting materials, is attacking critics of the amendments for being misinformed.

7. Failure to produce draft instructions

It is very difficult for the public to understand what the government is proposing to do given that draft instructions have not been made public.

8. Lack of consultation

The proposed amendments were introduced without the normal prior consultation with stakeholders.  This means that the proposal has not had the benefit of the full range of perspectives.

9. There are other ways of addressing the backlog

There is wide agreement that there is a problem in the immigration system leading to backlogs, including in the Economic Class.  There are better ways of addressing the problem than through the proposed amendments.  In fact, the proposed amendments will not in any case resolve the existing backlog, since they only affect applications made after 27 February 2008.

10. The immigration program needs to value immigrants

The proposed amendments come in the context of – and contribute to – a disturbing shift towards the use of immigration primarily to meet Canadian employers’ needs, without regard to broader Canadian interests.  This includes the problematic increasing reliance on temporary work permits.  Canada needs to consider immigrants as full participants in society, not simply as disposable units to fill currently available jobs.  This means recognizing the need for effective and efficient family reunification policies and practices so that immigrants can be with their families.  Yet the government is not addressing chronic problems that mean that some children spend years separated from their parents.

April 2008

For further information

Release on Bill C-50, Legislative amendments will hurt family reunification for children, 17 March 2008

Questions and Answers, Bill C-50 - Proposed amendments to IRPA, April 2008

Questions and Answers

Q: What are the key changes to the Immigration and Refugee Protection Act (IRPA) being proposed?

a) Currently the law says (at section 11) that an officer “shall” issue a visa if the applicant meets the requirements of the Act.  This is changed in the bill to say an officer “may” issue a visa if the applicant meets the requirements of the Act.

b) Currently the law says (at section 25) that the Minister “shall” examine an application for humanitarian and compassionate consideration (H&C).  This is changed in the bill to “may” examine the application if the applicant is outside Canada.

c) The bill gives the power to the Minister to issue instructions for the processing of applications from economic immigrants and H&C applicants outside Canada. The instructions could establish categories of applications to be processed, determine the order in which the applications should be processed, fix a limit on the number to be processed, and provide rules for repeat applications.

d) The bill empowers the government to retain, return or otherwise dispose of applications that, following the instructions, are not processed.  This only applies to applications subject to instructions, ie. economic immigrants and H&C applicants outside Canada.

Q: Do these changes affect refugees and Family Class applicants?

The new power to issue instructions does not apply to applicants in the Refugee or Family Classes (i.e. refugees recognized in Canada as well as those resettled from abroad, and their dependants, and people sponsored by a family member).  These applicants therefore will not be directly affected by new rules about priorities for processing, limits on numbers to be processed, etc.  CIC will continue to process all applications in the Refugee and Family Classes to final decision.

However, refugees and people seeking family reunification could be affected by the other changes:

• All classes, including refugees and Family Class, are affected by the change from “shall” to “may” in section 11.  This change means that refugees and Family Class applicants will no longer have the same legal right to permanent residence if they meet the requirements of the law.
• Overseas humanitarian and compassionate applications are often the only way for refugees and others to be reunited with immediate family in Canada.  The bill will eliminate the legal right to have an overseas H&C application examined.

Q: Why do people need to seek family reunification through an overseas H&C application?

The following are two situations where the law does not provide children with a right to family reunification and humanitarian and compassionate applications are the only recourse:

• Separated refugee children in Canada cannot apply for family reunification with their parents and siblings who are outside Canada.  The only way for these children to be reunited with their parents and siblings is through H&C.
• The excluded family member rule (Regulation 117(9)(d)) keeps many children unfairly separated from their parents, and separates spouses.  The only way for affected families to overcome the exclusion is through H&C.  (See CCR release, Children separated from their families by immigration rules, 7 April 2008, http://www.ccrweb.ca/eng/media/pressreleases/7april08.htm)

Q: Will the changes affect people seeking family reunification through H&C?

The government has suggested that they would continue to examine all family related H&C applications.  However, the bill eliminates the legal right to have an overseas H&C application examined.  If the bill is passed, this government or a future government could issue instructions leading to family related H&C applications not being examined.

It is also important to recognize that there are other compelling situations not related to family reunification where an H&C application is the only recourse.  They might never be examined if this bill is passed.

Q: Why is the government eliminating the right to have an overseas H&C application examined?

The government has suggested that there are large numbers of applicants in the Economic Class who seek H&C because they do not meet the points.  However, they have not made public the actual numbers.  It would seem surprising if many people are doing this as it would be quite expensive and have little chance of success.

Q: Will the changes allow the backlog of immigration applications to be eliminated?

No.  The bill only affects applicants made after February 27, 2008. The backlog is made up of applications from before that date and they will not be subject to the new instructions.

Q: What will happen to applications that are not processed?

The government has suggested that where an application is not going to be processed, it will be returned and the fee reimbursed.  However, the government is giving itself the power to retain, return or “otherwise dispose of” applications not processed.  This means that they will not be legally obliged to return the application and reimburse the fee – they could simply discard the application.

Q: What will be in the instructions for processing Economic Class applicants?

It is difficult to say, since the government has chosen not to publish any draft instructions.  The Minister has suggested that they could identify certain categories of worker for priority processing (she gave the example of medical professionals).  (See CBC, The House, 5 April 2008).  It also seems likely that the government plans to set limits on the number of applications to be processed: once the limit is reached, further applications will not be processed in that year and can be simply returned.  

Q: Should we be concerned about the proposed amendments?

Yes, see 10 reasons why: http://www.ccrweb.ca/documents/c50tenreasons.htm.

Q: What can we do?

Organizations and individuals can join their voices to those calling for the amendments to be separated out from the budget bill, C-50, and instead debated in full as a distinct bill to amend the Immigration and Refugee Protection Act.

11 April 2008

For further information

Release on Bill C-50, Legislative amendments will hurt family reunification for children, 17 March 2008

10 reasons to be concerned about proposed amendments to Immigration and Refugee Protection Act (IRPA) in Bill C-50, April 2008

Citizenship and Immigration Canada, Amendments to modernize the immigration system

Text and status of Bill C-50

18 April 2008

The Right Honourable Stephen Harper, P.C., M.P.
Prime Minister of Canada
Office of the Prime Minister
80 Wellington Street
Ottawa, Ontario, K1A 0A2

Re:      Bill C-50 – proposed amendments to Immigration and Refugee Protection Act (IRPA)

Dear Prime Minister,

We are writing to you to express our grave concerns with respect to Bill C-50.

We believe that Canada is a country that is and shall remain welcoming to immigrants and refugees, and that the future of our country depends to a great extent on a fair, open, transparent and humanitarian immigration selection and refugee protection system.

We are all for the Government’s stated objective to clear the backlog in immigration applications, yet we are far from convinced that the changes as proposed in Bill C-50 are the most effective – or even necessary – means to achieve that goal.  In fact, the proposed amendments will not in any case resolve the existing backlog, since they only affect applications made after the end of February 2008.

Our key objections – which are shared by many other Canadians – concerning Bill C-50 stem both from the process in which it is introduced and the substance of the proposed changes.

Above all, we are deeply concerned about the arbitrary power given by Bill C-50 to the Minister of Citizenship and Immigration to make important changes to the immigration processing and acceptance systems through the issuance of instructions without Parliamentary oversight or mandatory consultations.  The granting of such extraordinary power given to individuals over and above the law without any political accountability is a direct affront to democracy and violates the spirit of the Rule of Law, which requires that governmental authority function within clear limits established by Parliament.

We are just as troubled by the move to eliminate the right to permanent residence for applicants who meet the requirements of the Act, and the right to have an overseas application for humanitarian and compassionate (H&C) consideration examined. 

While the Minister of Citizenship and Immigration has made a number of statements of intent as to how she will exercise the new powers that the amendments will give her, expressions of current intention are no protection against future uses of the powers in very different ways.   The fact that no draft instructions have yet been made public further hinders the promotion of better understanding of and a more informed debate about this issue.

We echo the strong sentiment already expressed by many Canadians that immigration is a critical issue of significance to Canada and as such, any substantive changes made to the Immigration and Refugee Protection Act should only be implemented after a meaningful consultation process.   Given its mandate and expertise in the area, the appropriate parliamentary body to consider the amendments is the Standing Committee on Citizenship and Immigration.  Furthermore, the inclusion of the amendments in the budget bill precludes the proper and separate consideration that they deserve.  Thus, the only reasonable thing for the Government to do is to sever the immigration amendments from Bill C-50  and refer them to the Standing Committee on Citizenship and Immigration for full and extensive public hearings.

Yours sincerely,

Elizabeth McWeeny
President

c.c.    The Hon. Stéphane Dion, MP, Leader of the Official Opposition
          Gilles Duceppe, MP, Leader of the Bloc Québécois
          The Hon. Jack Layton, MP, Leader of the of the New Democratic Party

Signatories

This letter, or a similar one, has also been signed by the following other organizations:

Accueil et intégration BSL, Rimouski
Affiliation of Multicultural Societies and Service Agencies of BC (AMSSA)
AFIO - L’Association des femmes immigrantes de l’Outaouais
African Canadian Legal Clinic
Canadian Arab Federation
Canadian HIV/AIDS Legal Network
Canadian Ukrainian Immigrant Aid Society, Toronto
CEDA - Soutien aux personnes immigrantes, Montréal
Central Vancouver Island Multicultural Society
Centre des travailleuses en maisons privées, Montréal
Centre for Spanish-Speaking Peoples (CSSP)
Centre justice et foi
CLEO (Community Legal Education Ontario/
Éducation juridique communautaire Ontario)
Community Legal Services (Ottawa-Centre)
Community Legal Services of Niagara South
Confédération des syndicats nationaux (CSN)
D.O.O.R.S. to New Life Refugee Centre, Thunder Bay
Downsview Community Legal Services
East Toronto Community Legal Services
Family Education and Support Centre, Maple Ridge, BC
Jane Finch Community Legal Services
Kitchener-Waterloo Reception Centre
Ligue des droits et libertés
Mennonite Central Committee Canada
Metro Toronto Chinese and Southeast Asian Legal Clinic
Mississauga Community Legal Services
Multilingual Community Interpreter Services, Toronto
Neighbourhood Legal Services
North Peel & Dufferin Community Legal Services
L’Observatoire international sur le racisme et les discriminations
OCASI: Ontario Council of Agencies Serving Immigrants
Parkdale Community Legal Services
PROMIS, Montréal
Quinte United Immigrant Services, Belleville
RIVO (Réseau d’intervention auprès des personnes ayant subi la violence organisée)
Service d’accueil des nouveaux arrivants (SANA Shawinigan)
South Asian Legal Clinic of Ontario
South Ottawa Community Legal Services
Table de concertation des organismes au service des personnes réfugiées et immigrantes (TCRI)
Urban Alliance on Race Relations, Toronto
West Coast Domestic Workers’ Association
West Scarborough Community Legal Clinic
West Toronto Community Legal Services
Women’s Health in Women’s Hands Community Health Centre, Toronto 

Introduction

Canada has been examined twice by the UN Committee on the Rights of the Child on its compliance with the Convention on the Rights of the Child.  Canada is currently due for its third examination.

In its previous reports, the Committee on the Rights of the Child highlighted a number of areas in which Canada falls short with respect to refugee and immigrant children.

Despite the UN recommendations, many of the problems noted persist today.