Canadian Council for Refugees
Table de concertation des organismes au service des personnes réfugiées et immigrantes
For immediate release
16 June 2015
Refused Haitians face deportation following lifting of the moratorium
The first decisions rendered on cases in the Haitian and Zimbabwean special measures program demonstrate the arbitrariness of the process, said the Canadian Council for Refugees and the Table de concertation des organismes au service des personnes réfugiées et immigrantes (TCRI).
While the majority of decisions so far are positive, the organizations are aware of four cases in Montreal where the application was refused, even though there were strong humanitarian factors present. These individuals as a result face deportation to Haiti, where conditions are harsh.
“The process for Haitians and Zimbabweans affected by the lifting of the moratoria is a discretionary one: unfortunately, some persons with strong cases are now suffering the consequences of this because the decision-makers who ruled on their applications chose not to exercise their discretion positively,” said Richard Goldman, Refugee Protection Coordinator for the TCRI. “Humanitarian and compassionate applications can be a bit like a lottery. If you have two very similar files, one can be accepted and another refused.”
While the decisions are discretionary, the decision-makers are nevertheless required to respect certain rules, particularly to take into consideration the best interests of an affected child, under both Canadian law and Canada’s obligations under the Convention on the Rights of the Child. Officers must also take into account the person’s establishment in Canada, especially if the person has been in Canada for some time because of a moratorium on removals. These rules appear not to have been respected in the cases refused, according to the information available on the 4 files, all involving Haitians.
Among the persons refused:
- persons with children, including Canadian-born children;
- persons who have been in Canada for many years (since 2007 in one case);
- a 65-year-old woman with adult children and grandchildren in Canada and no spouse or children in Haiti.
None of the applicants is receiving social assistance. All four received Quebec Selection Certificates (for more information on the decisions, see the attached Backgrounder).
“We repeatedly voiced concerns to the government that this special program was complex and left too much discretion in the hands of individual officers. Now we are seeing the dramatic impact on people who have set down strong roots in Canada” said Loly Rico, CCR President. “We hope the Canadian government will step in immediately to correct this situation and end the needless suffering of these families.”
The situation in Haiti remains very difficult: women and girls are particularly at risk.Amnesty International “remains seriously concerned at the high incidence of violence against women and girls”.
The organizations call on the Canadian government to review the above-mentioned decisions and to take measures to ensure that all applications are reviewed in a humanitarian manner in accordance with the rules. They also repeat their longstanding recommendation to introduce a regularization program that enables all persons who have been under a temporary suspension of removals for three years to apply for permanent residence.
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Context of Haitian and Zimbabwean special measures
On December 1, 2014 the Canadian government lifted a suspension on removals to Haiti, as well as to Zimbabwe, despite difficult conditions in both countries.
Under a special program announced by Citizenship and Immigration Canada (CIC), most nationals of both countries were given until June 1, 2015 to apply for permanent residence on humanitarian and compassionate (H & C) grounds. Applicants in Quebec had the opportunity to have their files reviewed by Quebec before being decided by CIC.
Several Haitians who have set down roots in Canada over many years, and who were supposed to benefit from a sensitive humanitarian review of their cases, are now facing deportation.
Since June 1, 2015, (the end of the period for submitting applications), information has begun to circulate about decisions on applications. While the majority of cases are being accepted, officers at CIC Montreal have recently issued refusals in at least four strong cases including: persons who have been in Canada for many years (since 2007 in one case); persons with children, including Canadian-born children, and a 65-year old woman with adult children and grandchildren in Canada and no spouse or children in Haiti. In one case, the applicant has been instructed to leave Canada by July 12, 2015.
Analysis of decisions
All the applicants are working; none is receiving social assistance. All four received Quebec Selection Certificates, as part of joint Quebec-Canada procedures for applicants living in Quebec. Three of the four applicants have obtained the reasons of the officers who rendered the negative decisions. A reading of these shows that:
- None of the decisions mentioned the applicants had received Quebec Selection Certificates, even though the guidelines for the special program instruct officers to do so.
- Little weight was given to the best interests of the children, even though, under Canadian and international law, this is to be given “substantial weight” in H & C decision-making. In one case, an officer simply stated that a Canadian-born child could “adapt” to life in Haiti because he is young and would be with his parents.
- No reference was made to the policy guideline to consider that “Positive H & C consideration may be warranted” where a person has become established in Canada over several years during a temporary suspension of removals (see The humanitarian and compassionate assessment Establishment in Canada).
- Officers did not provide applicants with an opportunity to provide allegedly missing documents (such as proof of legal status of a family member) but simply refused the application.
Obliging thousands of persons with clearly compelling cases to go through the H & C process is not only costly and challenging for applicants but also wasteful for the government, since each file is complex and takes many hours to properly review.
Conditions in Haiti
The Canadian government is advising its citizens to “exercise a high degree of caution” if visiting Haiti:
Crime rates are high and the security situation is unpredictable. Remain extremely vigilant wherever you are in the country. Criminal activity is especially prevalent in large centres such as downtown Port-au-Prince, where armed gangs continue to operate. There have been reports of murders, kidnappings, armed robbery, burglary and carjacking, even in daylight hours. Never walk alone and avoid travelling after nightfall. [...]
Members of the general Haitian population, regardless of rank or social class, are at risk of being kidnapped. [...] Most victims have been released upon the payment of a ransom. In some exceptional cases, however, victims have disappeared or have been killed.
See also, Amnesty International, Haiti: Submission to the UN Human Rights Committee: 112th Session of the UN Human Rights Committee, 7-31 October 2014, AMR 36/012/2014, https://www.amnesty.org/en/documents/amr36/012/2014/en/
The CCR and TCRI call upon the Canadian government to:
1) Introduce a regularization program that enables all persons who have been under a temporary suspension of removals for three years to apply for permanent residence through a simplified and inexpensive process.
2) In the interim (and for those not meeting the requirement of a three-year program, if it is introduced), ensure that all H & C applications are reviewed in a genuinely sensitive and humanitarian manner including:
- Taking into account that the applicant has become successfully established in Quebec, if a Quebec Selection Certificate has been issued;
- Giving substantial weight to the best interests of any child affected;
- Taking into account that suspensions on removals to Haiti and Zimbabwe were in effect for many years (since 2004 and 2002, respectively) leading to people becoming established in Canada due adverse conditions in their countries of origin;
- Taking into account that adverse country conditions still prevail in both Haiti and Zimbabwe;
- Offering applicants an opportunity to provide documents an officer considers to be missing.
3) Re-open the four above-mentioned negative decisions and ensure that they are reviewed applying these principles.