Non-Discrimination in Economic and Social Rights for Uprooted People: Submission with Respect to the Examination of Canada

Non-Discrimination in Economic and Social Rights for Uprooted People

Submission with Respect to the Examination of Canada, November 1998

Prepared by the Canadian Council for Refugees and the Inter-Church Committee for Refugees

July 1998


A. General Comments

Article 2(2) of the Covenant commits states to undertaking to "guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex ... or other status" (our italics). Our underlying concern is that, in Canada, enjoyment of many of the key rights is dependent on immigration status. Convention refugees who have not yet been given permanent residence, refugee claimants awaiting determination, refused refugee claimants seeking judicial review of the negative determination or a review on the risks of return, people under a removal order but who have not been removed because of the human rights situation in the country of origin, as well as many others without permanent immigration status in Canada, are discriminated against because of their immigration status (or lack of status), in regard to their access to many of the rights enunciated in the Covenant.

We note that there is generally in Canada a lack of public awareness about human rights obligations. Neither the general public nor the public institutions that make decisions on rights tend to give much weight to the international human rights framework. It is frequently taken for granted that Canada meets its international human rights obligations and that violations of human rights take place only outside Canada. Rarely do government policy or court decisions make reference to international human rights standards. Both the Inter-Church Committee for Refugees and the Canadian Council for Refugees have made suggestions to government ministers, parliamentary committees, judicial bodies and others with a view to increasing awareness of Canada's human rights obligations. So far few of these suggestions have been acted upon.

A national civic education program around Canada's international human rights treaties and their application in Canada is needed, with special training for judges and government officials. It is also critical that treaty rights be incorporated into domestic law.

Apart from the limited recognition, in law and in public consciousness, of the international human rights standards, there are a number of further reasons that migrants whose rights have been violated do not have access to a simple effective legal recourse. These include the administrative nature of many decisions, viewed by the courts as falling under the doctrine of administrative discretion and the fact that leave to review by the Federal Court is granted in a restrictive fashion on "points of law". The issues are in general not seen as "rights" to be litigated by the legal community. Furthermore, access to legal aid is limited and non-residents of course generally have limited private resources. Finally, those involved are afraid to rock the boat because of their lack of permanent status in Canada.

With respect to Convention Refugees, we note that the 1951 Convention relating to the Status of Refugees guarantees to refugees certain rights in areas overlapping with the Covenant on Economic, Social and Cultural Rights. Article 5 of the 1951 Convention expressly allows refugees to claim any better rights otherwise available. We are concerned that in some instances Convention Refugees are accorded neither their rights under the 1951 Convention, nor their rights under the Covenant.

The Canadian scheme for according Convention Refugees their rights is to offer them the opportunity to apply immediately for permanent residence. Although this leaves a gap during the processing of the application, for most Convention Refugees this scheme in the long term is favourable since they can gain a permanent status and have the opportunity subsequently to apply for citizenship. However, in recent years there have been increasing numbers of Convention Refugees unable to become permanent residents or forced to wait long periods before they become permanent residents. We find that there are three main barriers to permanent residence:

- a legislative amendment introduced in 1993 that requires Convention Refugees to produce "satisfactory identity documents" before they can be granted permanent residence. This measure appears to us contrary to Article 27 of the 1951 Convention relating to the Status of Refugees according to which ...States shall issue identity papers to any refugee in their territory who does not possess a valid travel document. It is difficult for us to understand how a government which is to issue identity documents should be requiring the refugee to produce a satisfactory identity document. The ID requirement has affected many refugees from various countries who have been unable to produce documents. Particularly affected have been citizens of Somalia and Afghanistan, because of the inability of these countries to offer their citizens documents. In 1997 the government introduced measures (the Undocumented Convention Refugee in Canada Class) which allow Convention Refugees from Afghanistan and Somalia, if they meet certain conditions, to be granted permanent residence in Canada five years after their refugee determination. This then formalizes the existence of categories of Convention Refugees living for years in Canada without permanent residence.

- Since 1994 Convention Refugees must pay processing fees of $500 per adult and $100 per child to apply for permanent residence. In February 1995, the federal government imposed a Right of Landing Fee of $975 on all adults becoming permanent residents. Some refugees are granted government loans to cover the Right of Landing Fee, but only after they have been evaluated as being able to repay the loan. There is no government loan program for the processing fees.

- Some Convention Refugees experience long delays in their application for permanent residence because of security checks. The government explains the delays as being at least in part due to a shortage of human resources to complete the reviews. There is no obligation on the government to process a permanent residence application within a certain period of time.

As a result of the above, there are increasing numbers of Convention Refugees living in Canada for years without permanent residence. There are no figures available for how many are in this situation, but even conservative estimates are in the thousands.

The question of the social and economic rights of Convention Refugees has thus become of increased importance in the last few years.


B. Problems with Specific CESCR rights


1. Discrimination in the Right to Work?

Article 6(1) ... the right to work which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts ...

(Also 1951 Convention, articles 17 and 24)

Those without permanent residence or citizenship require a work authorization (work permit) in order to be legally employed. Depending on their status and other factors, non-residents may:

- be denied a work authorization

- be granted short-term work authorizations (often making it difficult to find an employment)

- be required to pay $150 for the work authorization (if the permit is short-term, the costs can become quite substantial, since the fee must be paid each time it is renewed.)

- be granted a work authorization tied to a specific employer (few employers are willing to offer employment and then wait while the person applies for a work authorization)

All non-residents have social insurance numbers that identify them as non-residents. This creates a significant hurdle in seeking employment since employers view them as temporary and unreliable.

Refugees and immigrants, even once they are permanent residents, face considerable barriers to working in their chosen profession, because of difficulties in having their professional qualifications from other countries recognized in Canada.

Article 6(2) ... steps taken by the State ... shall include technical and vocational guidance and training programs, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual.

With respect to vocational training, generally those without permanent residence are ineligible for training programs.

Article 6, above, and Article 7(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence.

Non-residents may not be promoted because the employer recognizes the temporary nature of the work authorization.

Some professions and forms of employment (including the federal public service) are restricted to Canadian citizens.

2. Discrimination in social security?

Article 9 The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.

(Also 1951 Convention, Article 23)

Some categories of non-residents, including refugee claimants and refused refugee claimants, suffer discrimination in terms of social assistance. Refugee claimants may not immediately be granted social assistance, because of requirements that they provide certain immigration documents, including in some cases a decision on the eligibility of the refugee claim (a process which can on occasion be delayed). Rates of welfare granted to refugee claimants are in some provinces below the standard rate. Non-residents can also face difficulties when eligibility for a higher rate of welfare is conditional on good faith in seeking employment and when the person has no work permit.

3. Discrimination in Protection and Assistance to the Family?

Article 10(1) The widest possible protection and assistance should be accorded to the family ... particularly for its establishment and while it is responsible for the care and education of dependent children.

(Also Covenant on Civil and Political Rights Articles 17 and 23)

Family reunification, including reunification of spouses and of parents with minor children, is tied to permanent residence. Thus Convention Refugees cannot bring their spouses and children to Canada to reconstitute even a core family unit unless and until they become permanent residents.

If a refugee in Canada cannot get together enough money for the fees for the spouse and /or children overseas (amounting to $1475 per adult, $100 per child), he or she may have little choice but to delay bringing family members overseas by taking them off the permanent residence application. In such a case the Convention Refugee in Canada may herself become a permanent resident and subsequently start the process to sponsor her family members (a process which is more restrictive than simply adding them to her permanent resident application).

Convention Refugees who are unable to become permanent residents have no option to be reunited with their family. In addition, since Canada does not generally grant travel documents to Convention refugees until and unless they become permanent residents, these refugees cannot even travel abroad to visit with their families. The separation is therefore all the more severe. If and when the families are finally reunited, the impact of the separation on the families has sometimes been so great that it is irreparable.

4. Discrimination in Health?

Article 12(1) ... the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. (2.)... steps to be taken by the States ... include those necessary for: (a) ...reduction ... of infant mortality ...(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.

(Also 1951 Convention relating to the Status of Refugees, Article 24.1.b)

Health care coverage, in theory universal, is offered through the provinces. While some provinces used to offer medical coverage to refugee claimants, all provinces have now withdrawn from such coverage (Québec being the last to withdraw in 1996). Refugee claimants' essential health care needs are covered by the Interim Federal Health Program, which is much less comprehensive than provincial health care programs, covering only services deemed essential. In addition, refugee claimants cannot always easily get even the essential services to which they are entitled, because health care providers are unfamiliar with the program and uncertain of being repaid, or unwilling to assume the administration of special billing.

Some refused refugee claimants and others without permanent status do not even have coverage from the Interim Federal Health Program.

Some categories of permanent resident, including some refugees being resettled into Canada as permanent residents, must wait for 3 months from the date of arrival before they receive access to provincial health care schemes. They are encouraged to take out private coverage.

In some provinces, children born in Canada to refugee claimants have been refused coverage under the provincial health care program, despite being Canadian citizens.

5. Discrimination in Education?

Article 13(1) ... the right of everyone to education ... (2) (a)primary education shall be compulsory and available to all (2)(b) Secondary education ... including technical and vocational secondary education, shall be made generally available and accessible to all ... (2)(c)Higher education shall be made equally accessible to all, on the basis of capacity ... (d) Fundamental education shall be encouraged ... for those persons who have not received or completed ... primary education.

(Also 1951 Convention relating to the Status of Refugees, Article 22)

The Immigration Act requires anyone without permanent status to obtain a student authorization to attend school and does not allow certain categories of people to be granted student authorization. As a result, children of refugee claimants awaiting an eligibility determination, children of refused refugee claimants and children of undocumented migrants have been denied access to even primary education by some local authorities (even though provincial legislation may, in direct conflict with the federal Immigration Act, order that all school aged children be given access to education).

The "fundamental education" needed by refugees and related non-citizens and their families to participate in society on an equal footing is language training. Unfortunately, this is not guaranteed for all newcomers and members of their families.

Non-citizens other than permanent residents do not have equal access to secondary or higher education.

Refugees may not benefit from higher education (university, community college) on an equal footing with citizens. Unlike permanent residents, they may be asked to pay foreign student fee rates, they may not usually compete for fellowships and they will not be given student loans.